COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS

Appeal of:

John DeBarros,

Petitioner

v. CR-07-485

New Bedford Retirement Board,

Respondent

Appearance for Petitioner:

Deborah Kohl, Esq.

191 Bedford Street
Fall River, MA 02720

Appearance for Respondent:

Eric Jaikes, Esq.,

Office of the City Solicitor
133 William Street, Room 203
New Bedford, MA 02740

Administrative Magistrate:

Joan Freiman Fink, Esq.

SUMMARY OF DECISION

The New Bedford Retirement System was correct to deny the Petitioner's application for accidental disability retirement benefits as the Medical Panel did not apply an erroneous standard when it concluded that Mr. DeBarros was not disabled from performing the essential duties of his position as a Plant Engineer with the New Bedford School Department.

DECISION

Pursuant to G.L. c. 32, § 16(4), the Petitioner, John DeBarros, is appealing the June 21, 2007 decision of the Respondent, New Bedford Retirement Board, denying his application for accidental disability retirement benefits. (Exhibit 1A.) The appeal was timely filed in accordance with the provisions of G.L. c. 32, § 16(4).

A hearing pursuant to G.L. c. 7, § 4H was held on December 16, 2008 at the offices of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA. Various documents were entered into evidence at the hearing. (Exhibits 1 - 8.) The Petitioner's Pre-hearing Memorandum was marked as "A" for identification and the Respondent's Pre-hearing Memorandum was marked as "B" for identification. The Petitioner testified in his own behalf. One cassette tape recording was made of the hearing.

FINDINGS OF FACT

Based on the testimony and evidence presented, I make the following findings of fact:

1. The Petitioner, John DeBarros, d.o.b. 4/14/42, commenced employment in or about 1990 with the New Bedford School Department as a Plant Engineer. (Testimony of the Petitioner.)

2. His duties as a Plant Engineer included maintenance of the HVAC units in various public schools. He was responsible for cleaning and maintaining heating and ventilation units as well as replacing filters, motors, circulation pumps and thermostats. (Testimony of the Petitioner, Exhibit 6.)

3. The official job description for the position of Plant Engineer does not include a requirement that the individual holding that position be able to lift heavy weights. (Exhibit 6.)

4. On or about September 1, 2003, the Petitioner sustained an injury to his lower back while standing on a ladder placing ceiling tiles. The Petitioner filed a Notice of Injury Report concerning this incident of September 1, 2003. (Testimony of the Petitioner, Exhibit 6.)

5. He sought treatment from Dr. Alves, a chiropractor, and remained out of work until October 28, 2003, when he resumed his normal duties. (Testimony of the Petitioner.)

6. On November 12, 2003, the Petitioner underwent an MRI that revealed a "right lateral disc protrusion at L4/5 … a right paracentral disc protrusion at L5/S1." (Exhibit 7.)

7. On March 16, 2004, the Petitioner underwent an EMG/nerve conduction study that revealed evidence of mild acute and chronic S1 radiculopathy on the right. (Exhibit 7.)

8. On October 6, 2004, the Petitioner re-injured his back at work while pulling on a pipe wrench which was being used to close a heating system valve. He filed a Notice of Injury Report concerning this incident. (Testimony of the Petitioner, Exhibit 6.)

9. The Petitioner did not return to work after this incident of October 6, 2004. He applied for and was awarded workers' compensation benefits. (Testimony of the Petitioner.)

10. In addition to Dr. Alves, the Petitioner was also treated by Dr. Sergey Wortman, a physiatrist. Dr. Wortman prescribed the medication "Ultram" for his back pain as well as pain patches to be worn topically. (Exhibit 7.)

11. The Petitioner had two epidural injections performed at St. Anne's Hospital Pain Center but also did not experience any improvement in his level of back pain. (Exhibit 7.)

12. The Petitioner underwent a course of physical therapy in 2003 and again in 2004 after the incident of October 6, 2004. However, he did not get any relief from his low back pain after either set of physical therapy sessions. (Testimony of the Petitioner, Exhibit 7.)

13. On July 20, 2005 and again on September 12, the Petitioner was examined by Dr. William Donahue, an orthopedic surgeon, in conjunction with his workers' compensation claim. Dr. Donahue diagnosed Mr. DeBarros as suffering from lumbosacral strain with low-grade radiculitis. Dr. Donahue recommended that the Petitioner be limited to lifting items weighing less than fifty pounds. (Exhibit 7.)

14. On January 19, 2007, the Petitioner filed an application for accidental disability retirement claiming that he was permanently disabled from performing the essential duties of his position as a result of the work-related injuries to his back received on September 1, 2003 and October 6, 2004. (Exhibit 5.)

15. Dr. Wortman submitted a Physician's Statement in Support of the Application. In this Statement, Dr. Wortman diagnosed the Petitioner as suffering from chronic discogenic lower back pain and lumbar radiculopathy. He then opined that Mr. DeBarros is permanently disabled from performing the essential duties of a Plant Engineer and further that the disability is "causally related to the accident that occurred at work on or about October 21, 2003 and was later aggravated at work again on October 6, 2004. (Exhibit 4.)

16. On April 18, 2007, the Petitioner was examined by a Regional Medical Panel that was comprised of Dr. Nabil Basta, chairman, specializing in orthopedic surgery, Dr. John Groves, specializing in orthopedic surgery, and Dr. Arthur Safran, specializing in neurology. (Exhibit 1.)

17. The Medical Panel responded to the first certificate question concerning disability in the negative indicating that the Petitioner is not disabled from performing the essential duties of his position as a Plant Engineer. (Exhibit 1.)

18. In the narrative report attached to its certificate, the Medical Panel indicated that it had performed range of motion testing and a neurological exam. In addition, the Medical Panel reviewed the MRI report of November 12, 2003. The Panel then stated that "there were no clinical objective findings to justify the symptoms at this point …. It is the opinion of the panel that he is capable of resuming his work as a custodian with no restrictions." (Exhibit 1.)

19. On June 21, 2007, the New Bedford Retirement Board sent the Petitioner written notification that his application for accidental disability retirement had been denied. (Exhibit 1A.)

20. On June 25, 2007, the Petitioner filed an appeal of this decision with the Contributory Retirement Appeal Board. (Exhibit 2A.)

CONCLUSION

In order to receive accidental disability benefits pursuant to G.L. c. 32, § 7, an applicant must establish by substantial evidence, including an affirmative medical panel certificate that he/she is totally and permanently incapacitated from performing the essential duties of his/her position as a result of an injury sustained or hazard undergone while in the performance of his/her duties. The medical panel's function is to determine "medical questions which are beyond the common knowledge and experience of the local board (or the Appeal Board)." Malden Retirement Board v. CRAB, 298 N.E. 2d 902, 1 Mass. App. 420 (1973). Unless the panel applies an erroneous standard to fails to follow proper procedures or unless the certificate is "plainly wrong", the local board may not
ignore the panel's medical findings. Kelley v. CRAB, 341 Mass. 611, 171 N.E. 2d 277 (1961).

In the current case, I conclude that the Medical Panel did not employ an erroneous standard when it concluded that the Petitioner is not disabled from performing the essential duties of his position as a Plant Engineer with the New Bedford School Department. In arriving at its determination, the Panel reviewed the Petitioner's job description for the position of Plant Engineer. The Panel then conducted a physical examination of Mr. DeBarros including range of motion testing of the spine and legs as well as a thorough neurological examination. In addition, the Panel reviewed the results of the only MRI in the medical records, the MRI of the lumbar spine taken on November 12, 2003. Based on its examination, the Panel concluded that "there were no clinical objective findings" and further that Mr. DeBarros is "considered physically capable of performing the essential duties of the job described in the current job description." The Panel's determination that the Petitioner is not disabled from performing the essential duties of his job is fully supported by the evidence, both medical and non-medical, provided in this case.

The Respondent argues that the Medical Panel employed an erroneous standard in that it failed to consider the results of the EMG study of March 26, 2004. Although the EMG report itself appears not to have been provided to the Medical Panel, nonetheless, the complete results of that EMG study were referenced on multiple occasions in the notes of Dr. Sergey Wortman. Dr. Wortman's complete office notes for the period of 2003 -2006 were in fact provided to the Medical Panel. Moreover, the EMG/nerve conduction study of March 26, 2004 revealed evidence of only mild acute and chronic S1 radiculopathy on the right.
In light of the fact that the Medical Panel did not employ an erroneous standard when it concluded that the Petitioner is not disabled from performing the essential duties of his position as a Plant Engineer, I order that the decision of the New Bedford Retirement Board denying his application for accidental disability retirement benefits pursuant to G.L. c. 32, § 7 be affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

/s/ Joan Freiman Fink
Administrative Magistrate

Dated: March 19, 2009