COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

William Fitchet,

Petitioner

v. Docket No. CR-07-1146

Springfield Retirement Board,

Respondent

Appearance for Petitioner:

Albert R. Mason, Esq.

Law Office of Albert R. Mason
145 Springfield Street
Chicopee, MA 01013

Appearance for Respondent:

Alfredo A. Vivenzio, Esq.

Scibelli & Vivenzio P.C.
1120 Main Street
Springfield, MA 01103

Administrative Magistrate:

Kenneth J. Forton, Esq.

DECISION

The Petitioner, Springfield Police Commissioner William Fitchet, timely appeals, pursuant to G.L. c. 32, § 16(4), the Springfield Retirement Board's dismissal of an application for involuntary accidental disability retirement that former Springfield Police Commissioner Edward A. Flynn filed on behalf of Sgt. John Perenick. Commissioner Fitchet requests that the application be remanded to the Board for further processing and appointment of a regional medical panel.

Commissioner Fitchet elected to waive a hearing on the merits, and has elected instead to proceed on written submissions pursuant to 801 CMR 1.01(10)(c). On April 24, 2008, Commissioner Fitchet submitted a memorandum of law which I marked "A" for identification. On May 2, 2008, the Board filed a memorandum of law, which I have marked as "B" for identification. From the exhibits submitted by the parties, I have marked four exhibits. (Exs. 1-4) The record closed May 2, 2008 upon receipt of the Respondent's brief.

FINDINGS OF FACT

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

1. John Perenick, d.o.b., 5/5/61, was hired as a police officer in the Springfield Police Department on May 16, 1988. He was subsequently promoted to Sergeant. (Ex. 3)

2. On July 18, 2003, Sgt. Perenick twisted his left shoulder and right wrist while he was attempting to place a person under arrest. (Ex. 3)

3. That same day, at Baystate Medical Center, he was diagnosed with left shoulder strain. Sgt. Perenick's work activities were restricted. (Ex. 4)

4. Sgt. Perenick was subsequently seen by Dr. Luber of New England Orthopedics. Initially, Sgt. Perenick was diagnosed with a left shoulder rotator cuff contusion. A later MRI revealed a large intra-articular effusion with debris and anterior inferior glenoid rim fracture consistent with anterior inferior dislocation. Dr. Luber advised that Sgt. Perenick could have recurrent dislocations. Dr. Luber kept the light duty restrictions in place. (Ex. 4)

5. Sgt. Perenick returned to full duty on September 12, 2003. After undergoing a training program, he complained of increased shoulder pain. On September 17, 2003, Dr. Luber concluded that Sgt. Perenick was disabled again. (Ex. 4)

6. On October 6, 2003, Sgt. Perenick underwent arthroscopic surgery (anterior shoulder reconstruction). (Ex. 4)

7. Soon after surgery, Sgt. Perenick began physical therapy. He was authorized for light duty on November 4, 2003. (Ex. 4)

8. On December 9, 2003, Sgt. Perenick returned to New England Orthopedics with significant discomfort in his shoulder. (Ex. 4)

9. On December 23, 2003, Sgt. Perenick reported excruciating pain to Dr. Luber, who recommended a second arthroscopic surgery to evaluate hardware installed during the first surgery. (Ex. 4)

10. On December 29, 2003, Sgt. Perenick underwent his second arthroscopic surgery, during which loose hardware was removed. Dr. Luber also performed extensive left shoulder intra-articular debridement. Dr. Luber concluded that the anchor previously inserted into the shoulder may have backed up, leaving impingement of the humeral head. (Ex. 4)

11. During a January 8, 2004 follow-up examination after surgery, Dr. Luber noted that it appeared that Sgt. Perenick had experienced several shoulder dislocations in the past and that Sgt. Perenick also had pre-existing osteoarthrosis. (Ex. 4)

12. Sgt. Perenick engaged in physical therapy and experienced a decrease in pain initially, but, on May 25, 2004, he reported increased pain. (Ex. 4)

13. On September 30, 2004, Dr. Karas of New England Orthopedics discussed treatment options with Sgt. Perenick. The options were further therapy, medication and activity; repeat arthroscopic debridement; or further surgery. (Ex. 4)

14. On November 24, 2004, Sgt. Perenick reported some improvement and decided not to have surgery. (Ex. 4)

15. On January 25, 2005, Sgt. Perenick was returned to full duty. He reported to New England Orthopedic that he wanted to consult with Dr. Warner at Massachusetts General Hospital before any surgery. (Ex. 4)

16. On October 4, 2005, he was seen by Dr. Warner, who noted that Sgt. Perenick was experiencing pain at a grade of seven out of ten. Dr. Warner opined that his patient had a significant disability. He ordered further x-rays and CT scans. (Ex. 4)

17. The October 28, 2005 CT scan revealed degenerative joint disease of moderate to advanced severity. Dr. Warner suggested further surgery for humeral head reconstruction. (Ex. 4)

18. On March 6, 2006, Sgt. Perenick followed through with his third surgery, which included a complex reconstruction and resurfacing of the humeral head with extensive osteophyte removal. He also underwent Achilles tendon allograft reconstruction of the glenoid. After the surgery, Sgt. Perenick was again totally disabled from work. (Ex. 4)

19. Sgt. Perenick began physical therapy on March 13, 2006. (Ex. 4)

20. On June 6, 2006, Sgt. Perenick returned to Dr. Warner with complaints of aching and weakness in his shoulder. (Ex. 4)

21. After several follow-up visits with Dr. Warner and an Electromyography (EMG), on November 21, 2006, Sgt. Perenick reported continued pain in his shoulder. The EMG revealed axonal injury to the axillary nerve and a narrowing of the join space. Dr. Warner opined that Sgt. Perenick was suffering from two problems: stretch dysfunction of the axillary nerve and stiffness and pain due to glenoid arthrosis. (Ex. 4)

22. On December 15, 2006, Dr. Warner advised the Police Department that Sgt. Perenick's prognosis was guarded and that he was then only suited to light clerical work. Dr. Warner stated that he could not say that Sgt. Perenick was ready to perform all of the duties of a police sergeant. (Ex. 4)

23. In a February 27, 2007 follow-up, Dr. Warner noted that the axillary nerve stretch injury was improving, but that the Achilles tendon graft that he received on March 6, 2006 had failed. Dr. Warner recommended total shoulder replacement. (Ex. 4)

24. On April 9, 2007, Sgt. Perenick reported to Dr. Warner that he was prepared to undergo the total shoulder replacement. (Ex. 4)

25. On April 23, 2007, Dr. Kasparyan, an impartial physician, examined Sgt. Perenick at the request of the Springfield Police Department. Dr. Kasparyan opined that there was a "clear causal relationship" between his disability and the work injury that occurred on July 18, 2003. (Ex. 4)

26. On May 14, 2007, Dr. Kasparyan further opined: "At the present time, in my opinion the only thing this officer could do is light duty work. He has absolutely no capacity to do full duty work. To the best of my ability, I believe that this is going to be a complete disability. . . . I have reviewed his job description. I reviewed patrol and incident response, traffic enforcement, investigations, arrest related activities, evidence property management, record and report management and all other associated tasks. He certainly could do light duty deskwork that involved no altercations without any significant heavy lifting. Community relations' [sic] work and supervisory work would be possible but he cannot come into any contact with aggressive physical activities. In my opinion, this is a permanent disability to the best of my understanding. The examinee still is in a recovery phase . . . ." (Ex. 4)

27. On May 18, 2007, Police Commissioner Edward Flynn filed an involuntary accidental disability retirement application on behalf of Sgt. Perenick. (Ex. 3)

28. Without convening a regional medical panel, on November 28, 2007, the Springfield Retirement Board held a hearing on Commissioner Flynn's application. Sgt. Perenick and a representative of the Police Commissioner were present at the hearing. Sgt. Perenick informed the Board that he was scheduled for surgery in February 2008 and that he wanted the surgery so that he could return to full duty. (Ex. 1)

29. On November 30, 2007, the Board denied Commissioner Flynn's involuntary accidental disability retirement application. The letter stated: "The Board makes the findings which follow: A. Unsubstantiated; B. Unresolved Medical Issues; C. Board accepted testimony from employee. Has surgery scheduled for February, 2008." (Ex. 1)

30. By letter dated December 11, 2007, Commissioner Flynn appealed the Board's decision to deny the application. (Ex. 2)

CONCLUSION AND ORDER

The decision of the Springfield Retirement Board to deny the involuntary accidental disability retirement application filed by the Police Commissioner on behalf of Sgt. Perenick, without convening a regional medical panel, is reversed. The Board shall petition the Public Employee Retirement Administration Commission (PERAC) for appointment of a regional medical panel and shall further process the application in accordance with the applicable law.

G.L. c. 32, § 16(1) provides department heads with the power to request involuntary retirement of any of their employees for superannuation, ordinary disability or accidental disability. Accidental disability retirements are granted to members who are injured while in the performance of their duties, are subsequently unable to perform the essential duties of their jobs as a result of their injuries, and are likely to remain permanently disabled until they reach retirement age. G.L. c. 32, § 7. PERAC has promulgated regulations to give retirement boards further guidance in processing applications for disability retirement. See 840 CMR 10.00. One of those regulations, 840 CMR 10.08(1), states: "[e]xcept as provided in 840 CMR 10.09, upon receiving an application for disability retirement, the retirement board shall petition [PERAC] to schedule a medical examination of the member by a regional medical panel." 840 CMR 10.09(2) further provides: "[a]t any stage of a proceeding on an ordinary or accidental disability retirement application the retirement board may terminate the proceeding and deny the application if it determines that the member cannot be retired as a matter of law." See, e.g., Town of Hopedale v. Worcester Regional Retirement Bd., CR-07-59 (DALA dec. 4/13/07; no CRAB dec.) (affirming board's decision not to appoint medical panel because applicant not injured while in performance of his duties); Mannix v. Natick Retirement Bd., CR-99-005 (DALA dec. 8/5/99; no CRAB dec.) (affirming board's decision not to appoint medical panel because a medical doctor had not supported the application).

"If the retirement board decides to deny an application under 840 CMR 10.09, notice of the decision, basis for the board's decision, and right to appeal shall be sent to all parties . . . ." 840 CMR 10.09(3). In the instant case, the Board cited three reasons for its denial of Commissioner Flynn's application: the claim was unsubstantiated; there were unresolved medical issues; and Sgt. Perenick had upcoming scheduled surgery.

The Commissioner argues that the Board did not have the authority to deny the application without appointing a regional medical panel because the Commissioner duly filed the application with the Board and there was no reason "as a matter of law" that Sgt. Perenick cannot be retired. See 840 CMR 10.09(2). The Board argues that it did have the authority to deny the claim because the Petitioner's application did not meet the threshold requirements for accidental disability retirement, and the Board wanted to wait until Sgt. Perenick's medical issues were resolved.

The law is clear that, if an applicant has filed a complete application with the required medical documentation and doctor's opinion, the Board must petition PERAC for a regional medical panel unless there is a reason as a matter of law that the member cannot be retired. The language of 840 CMR 10.08(1) is specific and mandatory; once the Board receives an application, it "shall" schedule an examination of the member by a regional medical panel. The medical panel's function is to determine "medical questions which are beyond the common knowledge and experience of the members of the local board (or the Appeal Board)." Malden Retirement Bd. v. Contributory Retirement Appeal Bd., 1 Mass. App. Ct. 420, 423 (1973). The Board has no authority to substitute either its or a member's medical judgment, as it did in this case, for that of a properly convened regional medical panel.

The application clearly met the threshold requirements for accidental disability retirement. The evidence shows, at the least, that Sgt. Perenick's shoulder injury was chronic and that he had undergone three surgeries before Commissioner Flynn filed the involuntary retirement application. In fact, since his injury in July of 2003, he has spent less than half of that time on full duty. After nearly four years of surgeries and treatment, Sgt. Perenick was still experiencing significant pain and mobility limitations. Because it did not seem likely that Sgt. Perenick would return to permanent full duty, Commissioner Flynn had Sgt. Perenick examined by Dr. Kasparyan, who concluded after a review of the medical records and a physical examination, that Sgt. Perenick was "unable to perform the essential duties of his job and that such inability was likely to be permanent." See G.L. c. 32, § 7(1).

At a hearing on the application, however, Sgt. Perenick told the Board that he wanted to have another shoulder surgery in February 2008; there is no evidence in the record of the outcome of the scheduled surgery. The Board ultimately decided not to seek a medical panel and to see whether Sgt. Perenick's condition would improve. The Board does not have the authority to adopt such a "trial and error" approach. See Malden Retirement Bd., 1 Mass. App. Ct. at 424-25 (Board does not have authority to substitute its opinion for that of a majority of a properly constituted medical panel); DeLeo v. Peabody Retirement Bd., CR-05-518 (DALA dec. 6/20/06; no CRAB dec.) (Board has no authority to answer ultimate question of causation without benefit of medical panel's expertise); Lunenberg Bd. of Selectmen v. Worcester County Retirement Bd., CR-6582 (DALA dec. 11/10/83; CRAB dec. 2/13/84) (Board required to appoint regional medical panel after complete application filed along with doctor's opinion that disability is permanent and work-related and that the applicant is unable to perform the duties of his job). Because there was no reason as a matter of law that Sgt. Perenick could not be retired, once it received the application the Board should have petitioned PERAC for a medical panel and then considered the application in light of the panel's conclusions.

For the above-stated reasons, the decision of the Board is reversed. The Board shall petition PERAC for the appointment of a regional medical panel and further process the application in accordance with the applicable law.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS


Kenneth J. Forton
Administrative Magistrate


DATED: September 11, 2008


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