COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Kelly Buchanan,

Petitioner

v. Docket No. CR-07-96

Bristol County Retirement Board,

Respondent

Appearance for Petitioner:

Brenda J. McNally, Esq.

Ready, Kiernan & McNally, LLP
267 Main Street
Wareham, MA 02751

Appearance for Respondent:

Michael Sacco, Esq.

285 College Highway
PO Box 479
Southampton, MA 01073

Administrative Magistrate:

Maria A. Imparato, Esq.

DECISION

Kelly Buchanan filed a timely appeal under G. L. c. 32, s. 16 (4) of the January 25, 2007 decision of the Bristol County Retirement Board to deny her application for accidental disability retirement benefits. (Exs. 1, 2)

I held a hearing on February 19, 2008 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston.

I admitted documents into evidence. (Exs. 1 - 18) I marked the joint pre-hearing memorandum "A" for identification. The Petitioner testified. There is one tape cassette of the hearing.

FINDINGS OF FACT

1. Kelly Buchanan, d.o.b. 6/19/1974, worked as a Correction Officer at the Bristol County Sheriff's Office from November 1, 1998 to July 27, 2004. She was terminated from her position effective August 25, 2006. (Exs. 5, 6)

2. Ms. Buchanan's job duties included maintaining care and custody of inmates detained at the Ash Street Jail and Dartmouth Jail and House of Correction. The physical requirements of her required her to "meet the stringent physical demands required," including activities of movement, stationary positioning, occasional and/or frequent exertion, body movement, and visual and hearing acuity. (Ex. 5, Job Description)

3. Correction officers must be able to lift and carry up to 50 pounds frequently, and 100 pounds occasionally; lift and carry an inmate; physically restrain an inmate; wrestle an inmate to the floor; and drag/carry an inmate out of a cell. A correction officer must be able to push/pull while opening and closing locked gates and cell doors throughout the day. Correction officers "must be able to move or use their arms freely while performing their regular duties." (Ex. 5, Physical Demands of Correction Officer)

4. On July 27, 2004 Ms. Buchanan was restraining a 180-pound inmate when they both fell to the ground and the inmate landed on top of Ms. Buchanan. Ms. Buchanan landed on her left shoulder. (Ex. 3, p. 5, Testimony)

5. Ms. Buchanan filed a notice of injury. (Ex. 5, attachments)

6. Ms. Buchanan went to the Dartmouth Medical walk-in center where she was diagnosed with a left shoulder strain and advised to stay out of work. (Ex. 9)

7. On July 30, 2004 Ms. Buchanan consulted Jerald W. Katz, MD, an orthopedic surgeon, with a complaint of pain and an inability to move her left hand normally. She had no numbness or tingling in her fingers. Dr. Katz recorded his impression of "contusion of the shoulder, possible RTC strain, possible biceps strain," prescribed Ultram, Naprosyn and physical therapy, and advised Ms. Buchanan to remain out of work for three weeks of rest. (Ex. 10, 7/30/04; Ex. 11)

8. At a follow-up visit on August 19, 2004 Dr. Katz noted that Ms. Buchanan was doing well in physical therapy, although she still had pain in the left shoulder, particularly at night. He advised Ms. Buchanan to remain out of work and continue in physical therapy. (Ex. 10, 8/19/04)

9. At a follow-up visit on September 22, 2004 Mr. Buchanan noted that she had developed crepitus and crunching of the shoulder which was painful. She also noted an occasional click. Dr. Katz ordered an MRI to rule out any internal derangement that could be causing the crepitus and the click. He had Ms. Buchanan stay out of work, taking Ultram and Naprosyn. (Ex. 10, 9/22/04)

10. An MRI of the left shoulder on October 7, 2004 was deemed to be normal, with an intact subscapularis tendon, no displacement of the biceps tendon, no joint effusion, no abnormal signal in the rotator cuff tendons and no impingement on the supraspinatus muscle. (Ex. 12, 10/7/04)

11. In his progress note of October 14, 2004 Dr. Katz noted that Ms. Buchanan had had a significant increase in pain in the previous several days. Physical examination revealed a full range of motion of the shoulder, with significantly positive impingement sign, positive supraspinatus, and slightly positive apprehension, with weakness of the shoulder. Dr. Katz advised additional physical therapy and a corticosteroid injection. (Ex. 10, 10/14/04)

12. On November 20, 2004 Dr. Katz performed a corticosteroid injection of Ms. Buchanan's left shoulder, with good initial relief. He advised Ms. Buchanan to remain out of work and continue in physical therapy. (Ex. 10, 10/20/04)

13. At her evaluation on November 12, 2004 Ms. Buchanan indicated that she had pain and popping in the shoulder. Dr. Katz opined that the popping "is actually the biceps popping out or subluxating out of the bicipital groove." He planned to perform biceps tenodesis, a surgical procedure to stabilize the joint by anchoring the tendon. (Ex. 10, 11/12/04)

14. On January 14, 2005 Dr. Katz performed left biceps tenodesis. (Ex. 12, 1/14/05 Operative Report)

15. On January 25, 2005 Dr. Katz noted that Ms. Buchanan was doing well post-surgically. He advised her to keep from extending her left arm or doing any lifting with that arm. He advised her to remain out of work for 6 weeks. (Ex. 10, 1/25/05)

16. On March 1, 2005 Dr. Katz removed Ms. Buchanan's sling and began her on range of motion exercises with a weight limit of 10 pounds. He declared Ms. Buchanan disabled from work for another four weeks. (Ex. 10, 3/1/05)

17. On March 31, 2005 Dr. Katz noted that Ms. Buchanan was having pain, popping and crepitus. He advised continued physical therapy and Naprosyn. (Ex. 10, 3/31/05)

18. On April 26, 2005 Dr. Katz reported that Ms. Buchanan had full range of motion and normal strength in the shoulder. He noted that "when she goes from internal to external rotation with her arm abducted, and from external rotation to internal rotation" Ms. Buchanan feels a "clunking sensation and sound, which I think is the stump of the biceps impinging or getting caught in the glenohumeral joint." He advised arthroscopy. (Ex. 10, 4/26/05)

19. On May 25, 2005 Ms. Buchanan sought a second opinion from Joseph E. Chase, MD, an orthopedic surgeon, with complaints of continued pain and decreased range of motion of the left shoulder, with popping, a feeling of instability, and a grinding sensation. Dr. Chase opined that Ms. Buchanan "has instability in her shoulder, likely secondary to at least a superior labral tear. She may also have some anterior labral tearing or posterior labral tearing." He ordered an MRI arthrogram. (Ex. 13, 5/25/05)

20. At her follow-up visit to Dr. Chase on June 27, 2005, Dr. Chase noted that the MRI arthrogram revealed a tear of the interior glenohumeral ligament at the attachment to the humerus. "It looks like there may be a superior labral tear as well." Dr. Chase recommended shoulder arthroscopy, with repair of the labral/paralabral structures. (Ex. 13, 6/27/05)

21. On July 26, 2005 Dr. Chase performed left shoulder arthroscopy with superior labral repair and anterior labral repair and capsular plication. (Ex. 13, 7/26/05, Operative Report)

22. At her follow-up visit to Dr. Chase on August 3, 2005 Ms. Buchanan was doing well, and was referred to physical therapy. (Ex. 13, 8/3/05)

23. On August 31, 2005 Ms. Buchanan reported to Dr. Chase that she had some clicking in the left shoulder while doing range of motion exercises, and pins and needles in her forearm during physical therapy. Dr. Chase opined that the clicking could be the breaking up of scar tissue. He ordered an additional six weeks of physical therapy. (Ex. 13, 8/31/05)

24. On October 12, 2005 Dr. Chase noted that Ms. Buchanan continued to improve with her range of motion, although she noted some clicking/popping in the left shoulder as she performed her therapy. Dr. Chase opined that Ms. Buchanan was soon going to be ready for her rotator cuff strengthening program. (Ex. 13, 10/12/05)

25. On November 30, 2005 Dr. Chase noted that Ms. Buchanan was having a flare-up of her bicipital tenosynovitis symptoms for which he gave her a new prescription for physical therapy, together with a prescription for Ultram. (Ex. 13, 11/30/05)

26. Dr. Chase noted on January 11, 2006 that Ms. Buchanan was making progress in therapy for her left shoulder bicipital tenosynovitis. He opined that if those symptoms had resolved in four weeks, he would begin working on her rotator strength cuff again. (Ex. 13, 1/11/06)

27. On February 15, 2006 Dr. Chase provided Ms. Buchanan with a new prescription for physical therapy to work on rotator cuff strength because her shoulder symptoms had calmed down. (Ex. 13, 2/15/06; Ex.14)

28. On March 15, 2006 Giles C. Floyd, MD, an orthopedic surgeon, evaluated Ms. Buchanan for worker's compensation purposes. Dr. Floyd noted Ms. Buchanan's complaint of posterior pain in the left trapezius, with numbness and tingling in the left arm. Dr. Floyd opined that Ms. Buchanan was not yet at maximum medical improvement, and that she could return to modified work that did not require contact with inmates, and did not require pushing, pulling, restraining, work at or about shoulder level, working overhead, and lifting more than an occasional 1 - 2 pounds. (Ex. 18)

29. On April 5, 2006 Ms. Buchanan told Dr. Chase that she was expected to return to light duty work which would require lifting heavy doors and wearing a Scot air pack. Dr. Chase opined that Ms. Buchanan was not yet ready to return to work, unless she could be guaranteed no lifting or carrying, and no wearing of a Scot air pack. (Ex. 13, 4/5/06)

30. On July 10, 2006 Ms. Buchanan reported to Dr. Chase that she had numbness in her forearm since she began doing weight lifting as part of her physical therapy. She had had numbness in her left hand, as well, but the hand numbness had resolved by July 10, 2006. Dr. Chase diagnosed left upper extremity neuropraxia. He opined, "I am not really sure what is causing these neurologic symptoms. These really began after she was doing some weight lifting. She seems to be at a steady state now and really isn't getting much improvement. Given the fact that her symptoms have been going on for greater than 6 weeks now, I certainly feel that EMG/nerve conduction study is indicated. … Because of her present condition, she is still 100% disabled." (Ex. 13, 7/10/06)

31. An EMG/nerve conduction study was performed on July 14, 2006 and was deemed to be normal, with no evidence of "cervical radiculopathy, mononeuroptathy or brachial plexopathy involving the left arm to explain the patient's symptoms." (Ex. 13, 7/14/06)

32. On September 12, 2006 Ms. Buchanan consulted Sheela Gurbani, MD, a neurologist, for a neurological consultation. Dr. Gurbani was puzzled by the fact that Ms. Buchanan had no sensation from her left should down to her left wrist, but had sensation in her left hand. Dr. Gurbani recommended a cervical and thoracic MRI. "We need to be able to compare this with the prior study to see if there has been any change in the shoulder anatomy, i.e., if there has been any further tears or any unusual fluid collection or pocket in there or scar tissue putting pressure on the plexus and its branches to explain her unusual presentation now two years later." Dr. Gurbani opined that Ms. Buchanan's symptoms were causally related to the injury of July 27, 2004. (Ex. 15)

33. On September 19, 2006 Harry E. VonErtfelda, MD, an orthopedic surgeon, evaluated Ms. Buchanan for worker's compensation purposes. Dr. VonErtfelda noted that Ms. Buchanan had no pain in her shoulder, but her left arm was numb from her shoulder to her wrist. He opined that Ms. Buchanan could not return to her job as a correction officer "because of the neurological symptoms in her left upper extremity. It is my opinion that she could do only sedentary work, which required limited use of the left upper extremity." He opined that Ms. Buchanan had not reached a medical endpoint, and had additional testing scheduled. He noted in his diagnosis: "Question brachial plexopathy left shoulder." (Ex. 16)

34. On October 11, 2006 Ms. Buchanan had an MRI of her left shoulder that demonstrated "prominent tendinosis of the supraspinatus tendon without evidence for discrete rotator cuff tear. Status post reattachment of the biceps tendon to the humeral head with the biceps tendon within the bicipital groove not seen definitively." (Ex. 17)

35. On August 17, 2006 Ms. Buchanan filed an application for accidental disability retirement benefits, citing left shoulder superior/anterior labral tears, left shoulder bicipital tenosynovitis and left upper extremity neuropraxia as a result of the injury of July 27, 2004. (Ex. 3)

36. Dr. Chase filed a statement in support of the application answering all certificate questions in the affirmative. Dr. Chase summarized Ms. Buchanan's history from her injury on July 27, 2004 until May of 2006 "when she noted the onset of numbness in her left forearm and hand, along with weakness in these regions. These symptoms have continued, and at present the cause is uncertain." (Ex. 4)

37. Dr. Chase opined that Ms. Buchanan cannot perform the duties of her job. "[S]he still has weakness in her left shoulder and upper extremity secondary to her labral injuries; she also has weakness and dysesthesias in her left upper extremity. She is unable to use her left upper extremity for any lifting or carrying, nor could she defend herself or another correctional officer due to her injuries. At the present time, Ms. Buchanan could only perform duties which require no use of her left upper extremity." He opined that the disability is likely to be permanent, and that the disability is a direct result of the injury of July 27, 2004. (Ex. 4)

38. A regional medical panel convened on January 11, 2007 to evaluate Ms. Buchanan. The panel was composed of Drs. John McConville, Thomas Galvin and Lalit Savla. Drs. McConville and Galvin are orthopedic surgeons. Dr. Savla is a neurologist. (Ex. 8, Board of Registration in Medicine website)

39. The panel answered unanimously in the negative with respect to the existence of a disability. (Ex. 8)

40. The panel reviewed medical records and a job description, took a history, and performed a physical examination. The panel diagnosed "post left shoulder repair of biceps tendon and labral tear," and "[s]ubjective numbness of the left arm unknown etiology." (Ex. 8)

41. The panel noted Ms. Buchanan's complaints of dyesthesias and paresthesias in her left arm along with anesthesia in a distribution from her shoulder down to the palm of her hand. (Ex. 8)

42. Physical examination revealed a full range of motion of both shoulders, no atrophy around her scapulae, a normal vascular examination, normal resistance testing in all areas of the left arm, and a minor click in the subacromial area. There was decreased sensation over a variable pattern in no consistent anatomical pattern from her shoulder down to her palm, with the presence of sensation in her palm to pinprick. There was normal muscle examination including reflexes of the biceps, triceps and brachioradialis. There was normal intrinsic muscle function with no signs or any atrophy in the arm distally. There was one centimeter of decreased measurement at the biceps level "which would be commensurate with disuse." There was no sign of atrophy around her shoulder. (Ex. 8)

43. The panel opined that none of Ms. Buchanan's physicians have been able to explain her complaints of dysesthesias, paresthesias and numbness of her left arm. "With a negative EMG and a negative examination, including sensation loss or diminution which is inconsistent with any anatomical defect along with a motor exam that is normal, it is at this time impossible … to determine that she has any disability because of neurological problems. Despite her subjective complaints, nothing could be found objectively. Additionally, her orthopedic examination showed that she had a normal examination with some minor clicking in her shoulder but with a full range of motion, no signs of atrophy, and no hesitancy. Therefore, it could not be determined that she has any disability due to an orthopedic problem." (Ex. 8)

44. The panel concluded, "the patient complains subjectively of both neurological sequelae which started after her last surgery, and pain and disability in her left shoulder, but none of this is commensurate with anything that could be found objectively either by physical examination or any diagnostic studies. … Therefore, based on the examination today, it is our opinion that the member is not physically incapable of performing the essential duties of her job as described in the current job description." (Ex. 8)

CONCLUSION AND ORDER

This case is remanded to the Bristol County Retirement Board with instructions to return this case to the instant medical panel to explain its conclusion that Kelly Buchanan is not disabled, in view of the list of Physical Demands of a Correction Officer appended to her job description.

The case is remanded because the medical panel employed an erroneous standard to the issue of disability, and therefore the Contributory Retirement Board is not bound by the panel's negative response. Malden Retirement Board v. CRAB, 1 Mass. App. Ct. 420, 298 N.E.2d 902 (1973).

Disability is the inability to perform the essential duties of one's job.
Although the medical certified that it reviewed the Petitioner's job description, it is not clear how the medical panel reached the conclusion that the Petitioner is able to perform the essential duties of her job with a numb left arm, since the Petitioner's job requires the ability to lift and carry up to 100 pounds, lift and carry an inmate, physically restrain an inmate, wrestle an inmate to the floor, and drag and carry an inmate out of a cell. The job requires the ability to move or use one's arms "freely." Every physician who has examined the Petitioner, including treating physicians and evaluating physicians, has concluded that the Petitioner is not able to use her numb left arm to lift and carry.

The panel reached its conclusion with respect to disability based on the fact that the panel could find no objective neurological or orthopedic reason to explain the numbness in the Petitioner's left arm. The panel does not dispute that the Petitioner's left arm is numb.

The correct standard for the panel to employ is: in view of the fact that the Petitioner's left arm is numb, is she able to perform the essential duties of a Correction Officer that include the ability to lift and carry up to 100 pounds, and the ability to lift and carry an inmate, physically restrain an inmate, wrestle an inmate to the floor and carry and drag an inmate out of cell?

The panel's failure to specifically address the essential duties of the Petitioner's job when considering the issue of disability is evidence of the application of an erroneous standard, and remand is warranted.

This case is remanded with the instructions enumerated above.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Maria A. Imparato
Administrative Magistrate

DATED: 3/10/08


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