COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals


Kevin Brindle,


Petitioner

v. Docket No. CR-07-223

Worcester Regional Retirement Board,

Respondent

Appearance for Petitioner:

Richard K. Sullivan, Esq.

300 East Main Street
Milford, MA 01257

Appearance for Respondent:

Sean McGrail, Esq.

Donahue Rauscher & McGrail
23 Harvard Street
Worcester, MA 01609

Administrative Magistrate:

Maria A. Imparato, Esq.

DECISION

Kevin Brindle filed a timely appeal under G. L. c. 32, s. 16 (4) of the March 5, 2007 decision of the Worcester Regional Retirement System ("Board") to deny his request for accidental disability retirement benefits without convening a medical panel. (Exs. 1, 2)

I held a hearing on March 27, 2008 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA.

I admitted documents into evidence. (Exs. 1 - 22) I marked the Petitioner's pre-hearing memorandum "A" for identification, and the Petitioner's Motion to Strike Materials Submitted by the Board Under Cover Letter Dated March 26, 2008 "B" for identification. The Petitioner testified. There is one tape cassette of the hearing.

FINDINGS OF FACT

1. Kevin Brindle, d.o.b. 2/22/1974, worked as a firefighter/EMT-Paramedic for the West Boylston Fire Department from October 29, 2003 to on or about January 20, 2006.

2. In or about August 2001, Mr. Brindle worked as a firefighter/paramedic for the City of Keene, New Hampshire. He also worked as an airport firefighter at the Manchester, New Hampshire airport. (Ex. 14)

3. On August 27, 2001 Mr. Brindle was referred for psychotherapy to Burt G. Hollenbeck, Jr., Ph.D. after five days of hospitalization for depression, anger, cumulative Post-Traumatic Stress Disorder (PTSD) symptoms and suicidality. Mr. Brindle told Dr. Hollenbeck that he was having trouble separating work from his home life and had been feeling hyper-alert. He said that he knew the six firefighters who had been killed in Worcester, and was frustrated by the lack of response from his superiors at the Keene Fire Department to develop protocols to help reduce risks. Mr. Brindle also spoke about other traumatic experiences, "such as discovering a body buried under branches after being ejected from a car." (Ex. 7, 8/27/01)

4. Dr. Hollenbeck noted his impression of Dysthymic disorder, rule out PTSD. He noted that Mr. Brindle was seeing Dr. Peter Olsson for follow up of his anti-depressant medication, Effexor. (Ex. 7, 8/27/01)

5. On September 12, 2001 Dr. Hollenbeck noted that Mr. Brindle quit his job in Keene and got a new job working for Medstar Ambulance in Leominster. (Ex. 7, 9/12/01)

6. On October 2, 2001 Dr. Hollenbeck noted that Mr. Brindle reported that he had experienced a lot of trauma while working in Groton, where he was a call firefighter from 1990 to 1998. Mr. Brindle described several accidents he responded to, including one where a young woman injured in a motor vehicle accident went into cardiac arrest at the hospital and died. (Ex. 7, 10/2/01)

7. On October 10, 2001 Dr. Olsson opined that Mr. Brindle was doing well. He reduced Mr. Brindle's dose of Effexor, and had him continue on Trazadone. (Ex. 8, 10/10/01)

8. On October 15, 2001 Dr. Hollenbeck noted that Mr. Brindle reported reduced anxiety. (Ex. 7, 10/15/01)

9. On October 29, 2001 Dr. Hollenbeck noted that Mr. Brindle reported having racing thoughts for the previous three years and a startle reaction for the past 1.5 years. He noted that Mr. Brindle was anxious, worried and self-critical. (Ex. 7, 10/29/01)

10. On November 14, 2001 Dr. Hollenbeck noted that Mr. Brindle reported that he had been on a roller coaster for the last month, with unbelievable highs, irritability, hopelessness, increased libido at times, a lightening bolt sensation in his head, racing thoughts, seeing things in his peripheral vision while driving, feeling a crawling sensation, having problems concentrating, having disturbed sleep and experiencing suicidal ideation. Dr. Hollenbeck noted his impression of Bipolar Disorder I, "most recent episode mixed." Dr. Hollenbeck left a message for Dr. Olsson about the bipolar diagnosis. (Ex. 7, 11/14/01)

11. On October 27, 2001 Dr. Olsson noted that Mr. Brindle had only three hours of sleep in the previous two or three days, that he was cycling fast, and feeling irritable and angry. Dr. Olsson continued Mr. Brindle on Effexor and started him on Depakote. (Ex. 8, 11/27/01)

12. On December 6, 2001 Mr. Brindle reported to Dr. Hollenbeck that he was cycling during the day and becoming aggressive, but not assaultive. Mr. Brindle reported that he had experienced post-concussion syndrome in 1993 after a head injury, that he had slept six hours in the previous four days and that when he is on a high, he drinks to knock himself down. He reported that he had mostly ups rather than downs at work. Dr. Hollenbeck noted his assessment of hypomania. He spoke with Dr. Olsson who agreed to follow-up with medication. (Ex. 7. 12/6/01)

13. Mr. Brindle saw Dr. Olsson on December 6, 2001 reporting that he was angry, irritable, not sleeping and feeling increased aggression. Dr. Olsson increased Mr. Brindle's dosage of Depakote and advised him to use Trazadone instead of alcohol for sleep. (Ex. 8, 12/6/01)

14. On December 11, 2001 Dr. Olsson noted that Mr. Brindle seemed to be settling down, although he was cycling four times a day. He advised Mr. Brindle to continue on Depakote and prescribed Seroquel, as well. (Ex. 8, 2/11/01)

15. On December 12, 2001 Dr. Hollenbeck saw Mr. Brindle with his wife, who indicated that Mr. Brindle was still on a roller coaster. She indicated that the bipolar disorder had started about a year previously, and that Mr. Brindle was not an angry person before he was bipolar. Dr. Hollenbeck noted his assessment of rapid cycling with low frustration tolerance, although there had been some improvement with medication. He advised Mr. Brindle to chart his stability and moods. (Ex. 7, 12/12/01)

16. On December 19, 2001 Dr. Olsson noted that Mr. Brindle reported fewer mood swings, although he was still on the edge of rage. Dr. Olsson increased Mr. Brindle's dose of Seroquel and continued him on Depakote. (Ex. 8, 12/19/01)

17. Mr. Brindle stopped treating with Dr. Hollenbeck and Dr. Olsson in December 2001. He did not receive mental health treatment again until December 2005. (Ex. 15, p. 17; Testimony)

18. In October 2003 Mr. Brindle began work as a firefighter/EMT paramedic in West Boylston. He passed a pre-employment physical examination. He completed a medical history questionnaire in which he indicated that he had previously received mental health treatment for a mental or emotional disorder. He indicated that his treatment in 2001 had been for "CISD following traumatic event." (Ex. 6, p. 3)

19. Mr. Brindle was able to perform the duties of his job throughout 2003, 2004 and most of 2005. (Testimony)

20. On December 5, 2005 Mr. Brindle responded to a medical call in which a police detective known to Mr. Brindle fell off of a roof and broke his ankle. The detective's face had an agonized expression that reminded Mr. Brindle of the face of a woman who died in a head-on car accident in 1994. (Ex. 11; Ex. 3, p. 5; Testimony)

21. On or about the night of December 5, 2005 Mr. Brindle went to bed and closed his eyes and "there was a vivid image of a girl screaming in my face, which was a previous incident I had been to. Took me about an hour to get that face away from my face. About an hour and a half later the only thing I could see in the corner of my bedroom was the car accident scene I had pulled up to at the time." (Ex. 15, pp. 11 - 12)

22. Mr. Brindle felt his work began to backslide after this event. He hated to go on calls. (Testimony)

23. On December 18, 2005 Mr. Brindle responded to a medical call involving a cardiac arrest. This call reminded him of a previous medical call in which a 32-year-old woman, a mother of two, died of a cardiac arrest. (Testimony, Ex. 12; Ex. 3, p. 5)

24. Two days after this call, "I was in the shower, closed my eyes, rinsing my head and face. Wasn't shampoo, of course. And I could see the gentleman from the cardiac arrest behind me. So I, you know, opened one eye to turn and look to see if he was there, and he wasn't there. That's when I went back to the fire chief and I said, 'I definitely have a problem here.'" The fire chief referred Mr. Brindle to the Employee Assistance Program (EAP) that referred him to Troy LeBlanc, M.Ed, LMHC. (Ex. 15, p. 12; Ex. 9)

25. Mr. LeBlanc performed a psychiatric diagnostic interview examination of Mr. Brindle on December 30, 2005, noting his presenting problems of acute anxiety, acute depression, chronic hallucinations, constant irritable mood, episodic obsessions, acute poor self-esteem, acute sleep disturbance and chronic stress. (Ex. 9, Intake Note, 12/30/05)

26. Mr. LeBlanc diagnosed Major Depressive Disorder, Recurrent, Severe with psychotic features, with rapid cycling and Post-Traumatic Stress Disorder. He recommended both individual therapy and cognitive behavioral therapy. (Ex. 9, Intake Note, 12/30/05)

27. In his progress note of January 4, 2006 Mr. LeBlanc noted that Mr. Brindle reported seeing more visions and a noise sounding like someone breaking in at night, and seeing dark shadows zipping around by the cars. He referred Mr. Brindle to his primary care physician, Audrey Tracey, M.D., for medication management. (Ex. 9, 1/4/06; Ex. 4)

28. Dr. Tracey prescribed Effexor for depression and anxiety, Risperdal to control the auditory and visual hallucinations and help with sleep disturbance, Klonopin for management of periodic anxiety exacerbations during the day, and Trazadone for when sleep disturbance symptoms were more severe.
(Ex. 4)

29. Mr. Brindle stopped working on or about January 20, 2006. (Ex. 3, p. 2)

30. On January 25, 2006 Mr. LeBlanc noted that Mr. Brindle had not been sleeping, was having more visions "of seeing the girl from the accident. He reports to on occasion this week hearing her screaming. He is hearing a variety of knocking and other noises. In one instance he heard his wife calling him." (Ex. 9, 1/25/06)

31. On or about January 27, 2006 Mr. Brindle filed an insurance claim for Post-Traumatic Stress Disorder, supported by a statement from Mr. LeBlanc.
(Ex. 13)

32. By letter of February 8, 2006 Mr. LeBlanc opined, "Kevin's symptoms are consistent with PTSD stemming from an emergency call that he responded to as part of his duties for work." (Ex. 9, 2/8/06)

33. By letter of May 1, 2006 Mr. LeBlanc opined, "Kevin is presently suffering from Post Traumatic Stress Disorder as well as severe anxiety and hallucinations. … I feel it would be harmful to his condition to work. These symptoms stem from an incident a few years ago. The symptoms were managed successfully until the recent injury of a co-worker. After this injury Kevin's symptoms returned." (Ex. 9, 5/1/06)

34. The Fire Department sent Mr. Brindle to Leo F. Polizoti, Ph.D., a public safety consulting psychologist and a licensed psychologist provider, for a fitness for duty evaluation on May 4, 2006. Dr. Polizoti administered the Minnesota Multiphasic Personality Inventory-2 (MMPI-2), performed an extended clinical interview, and reviewed letters from Dr. Tracey and Mr. LeBlanc. (Ex. 10)

35. Dr. Polizoti's analysis of the results of the MMPI-2 indicated a strong possibility that Mr. Brindle had considered suicide, and that he endorsed "a number of extreme and bizarre thoughts, suggesting the presence of delusions and/or hallucinations." (Ex. 10)

36. Dr. Polizoti concluded, "This firefighter apparently suffers from severe psychiatric problems. These issues include post-traumatic stress disorder, an anxiety disorder and an underlying personality disorder. He has been taking multiple psychiatric medications with little improvement in his condition. Both of his treatment providers feel that he will not ever be able to return to work as a firefighter. The results of the MMPI-2 are essentially in agreement with his treatment providers. In my clinical opinion, based upon my assessment, Firefighter Brindle is not able to perform safely and properly the duties required of a firefighter." (Ex. 10)

37. Mr. Brindle filed an application for accidental disability retirement benefits on or about August 16, 2006, citing Post-Traumatic Stress Disorder and Major Depressive Disorder with psychotic features as the result of the incidents of December 5 and December 18, 2005. (Ex. 3, pp. 2, 5)

38. Dr. Tracey filed a statement in support of the application answering all certificate questions in the affirmative. She noted that Mr. Brindle carried diagnoses of PTSD and Major Depressive Disorder with psychotic features. Dr. Tracey opined that Mr. Brindle is permanently unable to perform the duties of a firefighter or EMT/paramedic. With respect to causation she opined, "[I]t is my opinion that his disability was the result of a prior traumatic event that is now manifesting itself. This condition was directly exacerbated by recent job stressors while working as a firefighter for the Town of West Boylston." (Ex. 4)

39. The Board held a hearing on November 29, 2006 in which Mr. Brindle testified under oath. (Ex. 15)

40. On March 5, 2007 the Board denied Mr. Brindle's application without convening a medical panel because "the application is without merit." (Ex. 1)

41. By letter of May 4, 2007 to the Board chairman, Mr. Brindle's counsel requested further information about the determination that Mr. Brindle's application was "without merit." (Ex. 16)

42. By letter of May 8, 2007 the Board chairman responded that "there does not appear to be any clear cut incident occurring while in the performance of his job duties that caused his present depression; everything appears related back to his previous employments in New Hampshire." (Ex. 17)

43. By letter of February 29, 2008 to Board counsel, Mr. Brindle's counsel noted that the Board had made its decision based on records from 2001, without obtaining records from Dr. Tracey, Mr. LeBlanc or Dr. Polizoti. (Exs. 18, 20, 21, 22)

CONCLUSION AND ORDER

This case is remanded to the Worcester Regional Retirement Board with instructions to convene a regional medical panel of psychiatrists to evaluate Kevin Brindle.

The Petitioner has submitted a properly completed application for accidental disability retirement benefits under G. L. c. 32, s. 7 (1) claiming that he is permanently unable to perform the essential duties of his job as the proximate result of a personal injury sustained or hazard undergone while in the performance of his duties.

His application is supported by the Statement of Applicant's Physician completed by Dr. Tracey, answering in the affirmative to all certificate questions. Dr. Tracey diagnosed PTSD and Major Depressive Disorder with psychotic features. The Board argues that the Petitioner is not entitled to an examination by a regional medical panel because "there does not appear to be any clear cut incident occurring while in the performance of his job duties that caused his present depression; everything appears related back to his previous employments in New Hampshire." The Board has essentially decided that the Petitioner cannot prevail on the issue of causation.

In order to meet his burden of proof with respect to causation, the Petitioner must prove one of two hypotheses: that his disability was caused by a single or series of work-related events, or that his employment exposed him to an "identifiable condition … that is not common and necessary to all or a great many occupations" that resulted in disability through gradual deterioration. Blanchette v. CRAB, 20 Mass. App. Ct. 479, 481 N.E.2d 216, 220 (1985).

Aggravation of a pre-existing condition to the point of permanent and total disability satisfies the natural and proximate requirement. Baruffaldi v. CRAB, 337 Mass. 495, 150 N.E.2d 269, 271 (1958).

The Petitioner could prevail under either hypothesis.

The Petitioner advances, under the first hypothesis in Blanchette, that he is permanently unable to perform the essential duties of his job as the result of two medical calls on December 5 and December 18, 2005 that either caused his disabling PTSD and depression, or aggravated to the point of disability his pre-existing PTSD and depression that had apparently been in remission since 2001. If we view the Petitioner's claim under the second hypothesis of Blanchette, the Petitioner claims to have become disabled through gradual deterioration as the result of exposure to an "identifiable condition" not common and necessary to all or a great many occupations, that is, constant exposure to traumatic and depressing events.

As the Appeals Court noted in Blanchette, fn. 7:

Recovery of accidental disability benefits for gradual deterioration stemming from an 'identifiable condition' which is not shared by many occupations could involve, for example in the case of physical injury, diseases such as asbestosis, silicosis, and mesothelioma related to exposure to asbestos. Mental incapacity might occur, for example, in occupations involving constant exposure to life threatening situations or to continual traumatic or depressing events. … The key, in a case involving G. L. c. 32, s. 7 (1), once the physical or mental disability is established, is proof that the identifiable condition at work is an efficient cause of the disability.
(emphasis supplied)

The Petitioner has articulated a prima facie case for the award of accidental disability retirement benefits. The Board shall convene a regional medical panel of psychiatrists to evaluate the Petitioner.

Petitioner's Motion to Strike

I denied the Petitioner's Motion to Strike Materials Submitted by the Board Under Cover Letter Dated March 26, 2008. This Motion refers to the exhibits that I admitted into evidence over the Petitioner's objection, and consist of the Employer's Statement that was not submitted until March 13, 2008; the pre-employment physical; the records of Mr. LeBlanc; the fitness for duty evaluation of Dr. Polizoti; the run sheets for the emergency calls on December 5 and December 18, 2005; the insurance claim submitted in January 2006; and the Petitioner's resume. The Petitioner argues that the Board did not consider these documents before denying the Petitioner's application and therefore the documents should be stricken.

I conclude that the issue before me is not whether the Board had just cause to deny the Petitioner's application based on the evidence it considered, but whether the Petitioner is entitled to be examined by a regional medical panel. In order to decide that issue, I needed to consider all of the available evidence in this de novo hearing.

This case is remanded with the instructions enumerated above.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Maria A. Imparato
Administrative Magistrate

DATED: 4/18/08


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