Suffolk, ss. Division of Administrative Law Appeals
v. Docket No. CR-06-603
Arlington Retirement Board,
Appearance for Petitioner:
Joseph Spinale, Esq.
10 High Street, Suite 1
Medford, MA 02155
Appearance for Respondent:
Thomas Paul Gorman, Esq.
Sherin & Lodgen, LLP
101 Federal Street
Boston, MA 02110
Maria A. Imparato, Esq.
This application for accidental disability retirement benefits is denied because the Petitioner has not demonstrated that he was unable to perform the essential duties of his job on his last day of work. Vest v. CRAB, 41 Mass. App. Ct. 191 (1996). After retirement for superannuation, the Petitioner lived an active lifestyle until several years later when he developed atrial fibrillation.
Andrew Antonucci is appealing under G. L. c. 32, s. 16(4) the August 31, 2006 decision of the Arlington Retirement Board to deny his request for accidental disability retirement benefits. (Exs. 1, 2.)
I held a hearing on October 22, 2009 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA.
I admitted documents into evidence. (Exs. 1 - 11) The parties offered argument on the record. No witnesses were called to testify. There is one tape cassette of the hearing. The parties stipulated that Mr. Antonucci stopped working on or about May 20, 2001, and that he retired for superannuation on May 25, 2001.
FINDINGS OF FACT
I make the following findings of fact based on the documents in evidence and the two stipulations of the parties.
1. Andrew Antonucci, d.o.b. 9/12/1941, worked as a firefighter for the Town of Arlington Fire Department from April 7, 1974 to on or about May 20, 2001. He retired for superannuation on or about May 25, 2001. (Ex. 5; Ex. 6, p. 55; Stipulation of the parties.)
2. Mr. Antonucci passed a pre-employment physical examination that revealed no evidence of heart disease. His blood pressure was 120/80. An electrocardiogram on July 31, 1974 was within normal limits. (Ex. 6, pp. 57-59.)
3. On January 17, 2001, Mr. Antonucci saw his primary care doctor, R. P. Criscitiello, M.D., for a routine office visit. Dr. Criscitiello noted that Mr. Antonucci had hypertension, peptic ulcer disease, and mitral valvular disease with prolapse and regurgitation. Dr. Criscitiello noted that Mr. Antonucci had "no headaches, shortness of breath or chest pains." (Ex. 6, p. 191.)
4. Mr. Antonucci's blood pressure was 100/60. His heart rhythm was a "2-3 blowing apical murmur consistent with mitral valvular disease and regurgitation. There is no diastolic component." Dr. Criscitiello urged Mr. Antonucci to stop smoking and setup a colonoscopy. "He would like to wait until he retires in 2-3 months." (Ex. 6, p 191.)
5. On March 9, 2001, Mr. Antonucci was seen by J.P. Berkoben, M.D., because he had fractured his left toe in late January. "He was in a walking cast. He just went back to work a couple of days ago." Mr. Antonucci's blood pressure was 138/78. His heart had a "systolic murmur (MVP)." (Ex. 6, p. 190.)
6. Mr. Antonucci stopped working and retired for superannuation in May 2001.
7. On September 26, 2001, Mr. Antonucci saw Dr. Criscitiello for an office visit. Dr. Criscitiello noted that Mr. Antonucci still smoked a pack a day. "He denies any headaches. No shortness of breath, chest pains, palpitations, nausea, vomiting. … He feels well." Mr. Antonucci's blood pressure was 136/94, his heart rhythm was regular "with a 2-3/6 holosystolic apical murmur. Negative S3." Dr. Criscitiello noted that Mr. Antonucci had mitral valve prolapse and needed prophylaxis for any dental procedures. (Ex. 6, p. 189.)
8. On November 17, 2004, Mr. Antonucci was referred to Maurizio Diaco, M.D. for evaluation of mitral regurgitation for pre-operative clearance for a urological procedure. Dr. Diaco noted that Mr. Antonucci "presents without distress. He does report a very active lifestyle. He is currently working on two houses doing manual work. He reports no limitation, no palpitations, no chest pain both at rest or exertion. No PND, orthopnea or peripheral edema." Mr. Antonucci's blood pressure was 130/80. (Ex. 6, p. 170.)
9. Dr. Diaco recorded his impression of mitral regurgitation with underlying mitral valve prolapse, paroxysmal atrial fibrillation and hypertension. He opined that there was no contraindication for the planned surgery. Dr. Diaco opined, "The paroxysmal atrial fibrillation is probably related to progression of his underlying mitral regurgitation and further left atrial enlargement." (Ex. 6, pp. 170-172.)
10. On February 15, 2005, Mr. Antonucci returned to Dr. Criscitiello after hospitalization for bladder outlet obstruction surgery with transurethral resection of the prostate. His heart revealed an irregularly irregular rhythm. Electrocardiogram confirmed the presence of atrial fibrillation with a moderate ventricular response. Dr. Criscitiello recommended anticoagulation for stroke prevention. (Ex. 6, p. 167.)
11. On April 28, 2005, Mr. Antonucci was admitted to Lahey Clinic with episodes of dyspnea that awakened him from sleep. Dr. Criscitiello saw him in consultation and noted, "He developed probably persistent atrial fibrillation between 11/04 and 2/05 without apparent symptoms." (Ex. 6, p. 232.)
12. During an inpatient surgical consultation with Richard D'Agostino, M.D. on May 2, 2005, Dr. D'Agostino noted: "About 3 months ago, [Mr. Antonucci] noted a change in his exercise capacity, finding that he was (sic) much more shortness of breath than he had been previously with exercise. He is generally fairly physically active. … Subsequently, he was noted to be in atrial fibrillation, and in all likelihood, he had been having episodes of transient atrial fibrillation antedating the continuous atrial fibrillation which [he] has evidently had not for the past few months." (Ex. 6, p. 226.)
13. On May 4, 2005, Mr. Antonucci underwent mitral valve repair. (Ex. 6, pp. 204-5.)
14. Mr. Antonucci filed an application for accidental disability retirement benefits on April 18, 2005, citing atrial fibrillation as a result of performing firefighting duties. (Ex. 3, pp. 2, 5.)
15. Dr. Diaco filed a statement in support of the application dated March 23, 2005 answering all certificate questions in the affirmative. He opined that Mr. Antonucci is permanently incapable of performing the duties of a firefighter. He opined, "Mr. Antonucci has had a history of hypertension which I do believe may have been aggravated by his duty as a fireman. I do suspect that the hypertension is at the base of worsening of his mitral regurgitation which eventually induced left atrial enlargement and [is] responsible for his paroxysmal atrial fibrillation." (Ex. 4.)
16. By letter of May 31, 2005, Dr. Diaco stated, "Mr. Antonucci has asked me if the mitral regurgitation and the atrial fibrillation may have been present before 2001. … I do feel strongly that the condition was preexisting, and he probably may have had a long period of intermittent atrial fibrillation before the permanent atrial fibrillation. It is very conceivable to think that before 2001, both mitral regurgitation and atrial fibrillation were present." (Ex. 7.)
17. On July 6, 2005, Dr. Diaco submitted an addendum to his letter of May 31, 2005. He opined, "Mr. Antonucci has probably had atrial fibrillation with mitral regurgitation before 2001. I did feel from my assessment that the job condition contributed and may even have triggered the atrial fibrillation and worsening of mitral regurgitation. The presence of mitral regurgitation with atrial fibrillation most likely has reduced his stamina and caused more dyspnea on exertion. Considering that before 2001, he also was not on treatment for it. … I strongly feel that the condition was probably preexisting and limited his ability to perform his duty." (Ex. 7.)
18. By note of April 15, 2005, Dr. Criscitiello opined, "[Mr. Antonucci] has been diagnosed and treated for hypertension while he was working for the Fire department." (Ex. 4.)
19. On November 29, 2005, the Board requested that PERAC convene a regional medical panel to examine Mr. Antonucci. (Ex. 9)
20. By memo of December 19, 2005, PERAC requested that the Board "provide a Physician's Narrative that supports the fact that Mr. Antonucci was disabled from his condition, that this condition is permanent and is such as might be the natural and proximate result of the personal injury sustained or hazard undergone in the performance of his duties on the date that he was last employed by the governmental unit. Once this information is received a medical panel will be appointed for this member." (Ex. 9)
21. By letter of April 25, 2006, To Whom it May Concern from the Board's Retirement Administrator, the Board requested that "if the Medical Panel votes affirmatively for Mr. Antonucci's accidental disability application due to his heart condition that the Panel clearly defines that Mr. Antonucci was disabled from performing his duties as a firefighter prior to his original retirement date of May 21, 2001." (Ex. 6, p. 31.)
22. A regional medical panel comprising Madhusadan Thakur, M.D., George Philippides, M.D. and Eric Awtry, M.D. convened on May 3, 2006 to examine Mr. Antonucci. Dr. Thakur specializes in cardiovascular disease. Drs. Philippides and Awtry are board certified in internal medicine with a subspecialty in cardiovascular disease. (Ex. 10; Board of Registration in Medicine website.)
23. The panel answered unanimously in the negative with respect to the existence of a disability prior to May 21, 2001. (Exs. 10, 11.)
24. The panel reviewed medical records and a job description, took a history and performed a physical examination. The panel diagnosed mitral valve prolapse; status post mitral valve repair in May 2005; paroxysmal atrial fibrillation; and mild hypertension controlled on medical therapy. (Exs. 10, 11.)
25. The panel noted that Mr. Antonucci told them that he stopped working in May 2001 as a result of "intermittent fatigue." He told the panel that during the 1990s he had episodes of fatigue, not clearly associated with exertion and without chest pain or shortness of breath, but perhaps with palpitations. He said that he had the symptoms evaluated at Symmes Hospital 10 to 12 times during that decade, but he was never told that he had atrial fibrillation. He said he voluntarily retired in May 2001 because he "just couldn't take it any more." (Ex. 11.)
26. The panel opined: "Although there is a paucity of records available prior to [May 21, 2001], all of the available records note that his blood pressure was well controlled on a relatively limited medical regimen and there is no clear evidence of him having had hypertension related to heart disease. Additionally, although it is documented that his mitral valve prolapse was diagnosed in the mid '90s, the Panel notes that mitral valve prolapse is not an acquired condition and not secondary to his job-related stressors. Rather, it is a developmental abnormality of the mitral valve resulting in floppy mitral valve leaflets that allow blood to flow in the wrong direction during heart contraction. The natural history of mitral valve prolapse is that it tends to get worse with time and frequently requires valve surgery. … Although Mr. Antonucci clearly had mitral valve prolapse and mitral regurgitation during the 1990s, there is no clear evidence that it was limiting his ability to perform his job at that time. Additionally, at the time of his evaluation by a cardiologist in November 2004, he was specifically noted to have a very active lifestyle, was able to do manual labor on his houses, and had no physical limitations related to cardiac symptoms." (Ex. 11.)
27. The panel opined with respect to Mr. Antonucci's suggestion that his many evaluations at Symmes Hospital for fatigue in the 90s might be related to previous paroxysmal atrial fibrillation: "[T]here is no documentation that he had atrial fibrillation prior to 2004 and he specifically notes that he was told he did not have a cardiac cause for his symptoms during his multiple evaluations. Additionally, during his documented episodes of atrial fibrillation over the past several years, he has been asymptomatic specifically without palpitations, chest pain, shortness of breath, or episodic fatigue that related to the periods of time during which he was in the arrhythmia." (Ex. 11.)
28. The panel concluded, "[A]t the time of his voluntary retirement on May 21, 2001, there was no evidence to suggest that he was disabled on the basis of heart disease or hypertension." Ex. 11.)
CONCLUSION AND ORDER
The decision of the Arlington Retirement Board to deny the application of Andrew Antonucci for accidental disability retirement benefits is affirmed because the Petitioner has not proven that he was unable to perform the essential duties of a firefighter on his last day of work on May 20, 2001.
In order to prevail on his application for accidental disability retirement benefits, the Petitioner must prove that he is unable to perform the essential duties of his job as the result of a personal injury or hazard undergone sustained while in the performance of his duties under G. L. c. 32, s. 7 (1). As a threshold matter, the Petitioner must demonstrate that he was unable to perform his essential duties on his last day of work. Vest v. CRAB, 41 Mass. App. Ct. 191, 668 N.E.2d1356 (1996).
In Vest, the Appeals Court affirmed the denial of accidental disability benefits to a police officer who became disabled by hypertension four years after he had stopped working for non-medical reasons. The Appeals Court held that in view of the fact that the Petitioner had performed the duties of his job until his last day of work despite having non-disabling hypertension, he could not "claim accidental disability retirement status on the basis of a subsequently matured disability." Id. 191 Mass. App. Ct. at 194.
The facts in this case are analogous. Here, the Petitioner worked until May 2001 despite having mitral valve prolapse and mitral regurgitation. There is no evidence in the medical record, and no testimony from the Petitioner, that he stopped working for medical reasons. In fact, the medical record demonstrates that he lived a physically active life after retirement until he was discovered in 2004 during a pre-operative work-up to have atrial fibrillation.
Although his doctors speculate that the Petitioner may have had intermittent atrial fibrillation prior to retirement, there is still no evidence to demonstrate that the Petitioner was unable to perform the duties of his job prior to retirement. He apparently had been planning his retirement for several months prior to retirement because he told his doctor in January 2001 that he wanted to put off having a colonoscopy until he retired in 2-3 months.
The Petitioner has therefore failed to meet the requirements for an award of accidental disability retirement because he was not unable to perform the duties of his job on his last day of work.
The Petitioner argues that he is entitled to an award on the basis of the G.L. c. 32, s. 94 presumption, and that the panel failed to address the presumption and failed to rebut the opinion of Dr. Diaco.
Because the panel found that the Petitioner was not disabled on his last day of work, the panel was not obliged to address the issues of permanence and causation. The section 94 presumption deals with causation, not with the issue of disability. Furthermore, since Dr. Diaco's opinion is couched in the language of speculation, unsupported by any facts to support the notion that the Petitioner was unable to perform the duties of his job on his last day of work, there was no need for the Panel to address Dr. Diaco's speculative opinion.
The denial of the Petitioner's application for accidental disability retirement benefits is affirmed.
DIVISION OF ADMINISTRATIVE LAW APPEALS
Maria A. Imparato