By Carole Gilbert Brown
The Pittsburgh Post-Gazette
COLLIER, PA. — David Agostino isn’t looking to be a trailblazer, but the discharged Collier policeman rapidly is becoming one.
First, he survived a motorcycle accident near Cleveland three years ago, then endured rehabilitation and recertification to win his job back, becoming one of only a handful of people to suffer a traumatic head injury and resume a career in law enforcement.
Mr. Agostino, 42, suffers from anosmia, a partial or total loss of the sense of smell, common after-effect of head trauma.
In March, Collier Commissioners unanimously voted to honorably discharge him because of this condition.
Mr. Agostino, disputes the township’s position that his condition renders him unfit for duty. With an attorney provided by the Fraternal Order of Police, he appealed his discharge to the Civil Service Commission, which conducted a four-hour hearing last Thursday.
He later said that he was never offered an alternate position in the police department or a disability pension.
For its part, Collier cites a Collier Civil Service Commission regulation that says an officer may be removed for a physical disability that affects his ability to serve.
At the hearing, Timothy Barry, who represented the township, presented a February 2007 report from Dr. Carl Snyderman, a UPMC ear, nose and throat specialist who evaluated Mr. Agostino at Collier’s request.
Dr. Snyderman found Mr. Agostino’s anosmia to be complete and permanent, thus making him unable to smell the scent of alcohol on a drunk driver or to detect smoke, natural gas, or rotten food.
Mr. Agostino testified that he sometimes detects scents, but that the occurrences are brief and mild.
Collier ordered the olfactory test after former Chief Dan Rearick last fall received a report from police Officer Richard Lamb, then president of the Collier Township Police Association, who assisted Mr. Agostino after a high-speed chase on Interstate 79.
When Officer Lamb arrived on the scene, he said Mr. Agostino indicated there were no charges that could be filed against the driver. When Officer Lamb asked if the driver had been drinking, he said Mr. Agostino responded that he didn’t know because “You know I can’t smell.”
Officer Lamb subsequently determined that the driver was not incapacitated. Mr. Barry also introduced several other police responses by Mr. Agostino in which the ability to smell could have come into play, with FOP attorney Ronald Koerner pointing out that the incidents were handled with no difficulty or adverse consequences.
“You can construct hypotheticals, but is this sufficient to terminate?” he asked, adding he doesn’t believe asnosmia is “a fatal defect.”
Before he was cleared to return to duty last summer, Mr. Agostino was given the okay from his own doctors, as well as physicians hired by the township. The Municipal Police Officers Education and Training Center , which sets the standards for police eligibility, specifies that incoming officers must undergo vision and hearing tests, but not smell. A sense of smell is not listed in the police job description, either.
All the attorneys at last week’s hearing, including Collier solicitor Charles Means and Civil Service Commission solicitor Jack Luke, agreed there is no case law of a police officer being terminated for inability to smell.
“We were concerned that we may be in a situation out in the field that we would be unable to protect someone,” Mr. Means testified. “Also, if he doesn’t have [smell] and someone gets hurt, we’re concerned he could be a target for a lawsuit or a claim. Just because there isn’t [case law] doesn’t take us out of the situation of risk.”
But Mr. Koerner argued that there are other ways of noticing dangers, such as portable detection devices. His client testified that he compensates for his lack of olfactory ability by using common sense and evaluating clues at the scene, such as slurred speech, staggering gait, poor hand-eye coordination, drooling and glassy eyes.
“Sense of smell is the last thing that I have ever used to determine whether a person is driving under the influence,” Mr. Agostino said.
It is not clear whether anosmia is considered a disability, but Mr. Agostino, who is now working a job in security, said he qualifies for Americans With Disabilities Act designation because of his head trauma.
Mr. Agostino, who lives in South Fayette with his wife and three daughters, remains confident of his ability to be a cop. A licensed paramedic, he also hopes to be recertified in that field. Before being hired by Collier in 1998, he worked as a police officer in Castle Shannon and Baldwin Township.
After the meeting, he said he would be willing to use natural gas and smoke detectors, and pointed out that his situation is no different than a person who is working with a head cold or sinus infection. Smokers, too, often have diminished senses of smell.
“I just want to do my job and support my family,” he said.
Ellen Bond, of West View, Mr. Agostino’s mother, said during a break in last week’s proceedings that she believes there is a stigma for head trauma victims. Two members of the Pittsburgh Area Brain Injury Alliance were at the hearing to provide support to Mr. Agostino and his family.
A decision from the Civil Service Commission is expected within 60 days.
Copyright 2007 P.G. Publishing Co.