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March 27, 2009
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Pa. court to officer: No sense of smell, no job

By Mark Scolforo
Associated Press

HARRISBURG, Pa. — Police officers who lose their sense of smell also risk losing their jobs, a Pennsylvania appeals court ruled Thursday.

A suburban Pittsburgh township had the right to terminate Officer David J. Agostino after he lost his sense of smell in an off-duty motorcycle accident, because officers must be able to detect drugs, alcohol, hazardous materials, natural gas and other substances, a three-judge Commonwealth Court panel ruled.

"The evidence sufficiently demonstrated that Agostino suffered a physical disability that rendered him unfit to serve as a police officer," Judge Bernard L. McGinley wrote. "Critically, Agostino frequently patrolled alone and served as a first responder in instances that required a sense of smell to ensure his safety and the safety of others."

Agostino, who joined the force in 1998, was seriously injured in the August 2004 accident. A physician testified that his anosmia - the medical term for lacking a sense of smell - was probably related to a head injury and was permanent.

The officer passed a physical and returned to duty nearly two years later, but his lack of smell soon became an issue.

The Collier Township Board of Commissioners discharged him on grounds that he had a physical disability affecting his duties, and the township civil service commission and an Allegheny County judge later upheld the decision.

Agostino insisted he was capable of performing police duties. He argued that a sense of smell is neither an essential function nor tested by the Pennsylvania Municipal Police Officers' Education and Training Commission.

The township said Agostino's inability to smell impeded his performance. A fellow officer testified that Agostino was unable to smell the alcohol and marijuana odor around a motorist who had led police on a high-speed chase, McGinley wrote.

Collier Township Police Chief Thomas D. Devin reported that Agostino's condition became a problem during a call in which the officer helped an elderly resident restart a furnace.

"Devin explained that Agostino's inability to smell if the furnace was leaking gas created a hazardous situation, placing Agostino, the resident and the public in danger because 'it could have possibly caused an explosion,'" McGinley wrote.

Collier Township solicitor Chuck Means said lawyers involved in the case could not find a legal precedent that directly addressed Agostino's situation. Larger departments, he noted, could assign someone who can't smell to duties in which safety would not be an issue.

"In Collier Township the police officers are all out in the field and they're first responders," Means said.

Agostino's lawyer, Ronald Koerner, said he was unsure whether he would appeal the ruling.

Associated PressCopyright 2014 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

"I'm disappointed, but we'll have to see what we're going to do," Koerner said.






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