COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS

Appeal of:

Kenneth Hickney,

Petitioner

v. CR-07-511

State Board of Retirement,

Respondent

Appearance for Petitioner:

Robert Deubel, Esq.

Law Offices of Deborah Kohl
191 Bedford Street
Fall River, MA 02720

Appearance for Respondent:

Crystal Chow, Esq.,

State Board of Retirement
One Ashburton Place - Rm. 1219
Boston, MA 02108

Administrative Magistrate:

Joan Freiman Fink, Esq.

SUMMARY OF DECISION

The State Board of Retirement 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. Hickney was not disabled from performing the essential duties of his position as a Correction Officer with the Department of Correction.

DECISION

Pursuant to G.L. c. 32, § 16(4), the Petitioner, Kenneth Hickney, is appealing the June 29, 2007 decision of the Respondent, State Board of Retirement, denying his application for accidental disability retirement benefits. (Exhibit 1.) 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 January 8, 2009 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 - 11.) 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, Kenneth Hickney, d.o.b. 7/31/64, commenced employment on April 27, 1986 with the Department of Correction as a Correction Officer. He was assigned to the Southeastern Correctional Facility in Bridgewater, MA. (Testimony of the Petitioner.)

2. His duties as a Correction Officer included the care and custody of inmates at the correctional facility to which he was assigned. (Testimony of the Petitioner.)

3. On April 12, 1999, the Petitioner suffered an injury to his lower back when he bent down to retrieve an inmate's identification badge that had fallen behind his (Hickney's) desk. (Testimony of the Petitioner.)

4. The Petitioner sought treatment at the St. Luke's Hospital where he was prescribed pain medication and was advised to remain out of work. His discharge diagnosis was low back strain, question of lumbar disc disease. (Exhibit 10D.)

5. An X-ray taken on the next day, April 13, 1999, revealed no fracture or other bony abnormality. (Exhibit 10F.)

6. The Petitioner filed a Notice of Injury concerning his injury at work on April 12, 1999. (Exhibit 5.)

7. The Petitioner remained out of work for approximately four months during which time he received workers' compensation benefits. He returned to his full duties on or about August 22, 1999. (Testimony of the Petitioner, Exhibit 6.)

8. Throughout the next six years, the Petitioner continued to work although he experienced periodic episodes of back pain. He took sporadic sick days due to back pain. (Testimony of the Petitioner.)

9. On April 25, 2005, the Petitioner was evaluated by Dr. DeWitt Brown, a specialist in orthopedic surgery. Dr. Brown diagnosed the Petitioner as suffering from low back strain and opined that "his episode in 1999 was one episode. He recovered and has had individual intermittent episodes of low back discomfort. I would frankly believe that these are probably each individual and separate and not related to the 1999 incident." (Exhibit 5.)

10. On May 24, 2005, the Petitioner underwent an MRI of the lumbar spine that revealed "mild lumbar spondylosis with small posterior central and left paramedian disc protrusion at L4/L5." (Exhibit 10C.)

11. The Petitioner stopped working on November 28, 2005 and has been receiving workers' compensation since that date. (Testimony of the Petitioner.)

12. On December 9, 2005, the Petitioner was involved in a non-work related motor vehicle accident in which he sustained injuries to his back. (Testimony of the Petitioner.)

13. On November 3, 2006, the Department of Correction filed an application for involuntary ordinary disability retirement on Mr. Hickney's behalf. This application was never processed as shortly thereafter, the Petitioner filed his own application for retirement benefits. (Exhibit 7.)

14. On December 18, 2006, the Petitioner submitted an application for accidental disability retirement claiming that he was permanently disabled from performing the essential duties of his position as a result of low back resulting from an injury at work on April 12, 1999. (Exhibit 3.)

15. Dr. Leslie Stern, a neurosurgeon, submitted a Physician's Statement in Support of the Application. In this Statement, Dr. Stern diagnosed the Petitioner as suffering from back pain with lumbar radiculopathy and degenerative disc disease of the lumbar spine. He then opined that Mr. Hickney is permanently disabled from performing the essential duties of a Correction Officer and further that the Petitioner's "ongoing disability is primarily related to the injury originally undergone, and the persistent discomfort related to the ongoing nature of his work." (Exhibit 4.)

16. On April 3, 2007, the Petitioner amended his original application to include ordinary disability retirement as well as accidental disability retirement benefits. (Exhibit 4.)

17. On April 18, 2007, the Petitioner was examined by a Regional Medical Panel that was composed of Dr. Arthur Safran, chairman, specializing in neurology, Dr. John Groves, specializing in orthopedic surgery, and Dr. Nabil Basta, specializing in orthopedic surgery. (Exhibit 9.)

18. 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 Correction Officer. (Exhibit 9.)

19. In the narrative report attached to its certificate, the Medical Panel indicated that it had performed a complete neurological examination including heel and toe movement testing, straight leg raising testing, forward flexion testing, knee and ankle jerks, sensory testing, and vibration testing. In addition, the Medical Panel reviewed the MRI report of May 24, 2005, the medical records of Dr. Anne Desnoyers, Dr. Mark Mederios, and Dr. David Fall, and the Petitioner's job description. The Panel then stated that "the diagnosis is history of back sprain with no evidence of continuing radiculopathy or bony injury …. In summary … the member is considered physically capable of performing the essential duties of the job described in the current job description." (Exhibit 9.)

20. On June 29, 2007, the State Board of Retirement sent the Petitioner written notification that his application for accidental disability retirement had been denied. (Exhibit 1.)

21. On July 9, 2007, the Petitioner filed an appeal of this decision with the Contributory Retirement Appeal Board. (Exhibit 2.)

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 or 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 Correction Officer with the Department of Correction. In arriving at its determination, the Panel reviewed the Petitioner's job description for the position of Correction Officer. The Panel then conducted a thorough neurological examination of Mr. Hickney including straight leg raising testing, forward flexion testing, knee and ankle jerks, sensory testing, and vibration testing. In addition, the Panel reviewed the results of the only MRI in the medical records, the MRI of the lumbar spine taken on May 24, 2005, as well as the medical records of the Petitioner's treating physicians. Based on its examination, the Panel concluded that Mr. Hickney is physically capable of performing the essential duties of the job of Correction Officer as listed in the current job description for that position. 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 Petitioner argues that the Medical Panel employed an erroneous standard in that it failed to consider the report of Dr. Leslie Stern contained in the Physician's Statement in Support of the Application. The Petitioner stresses that Dr. Stern opined that Mr. Hickney was physically incapacitated from performing the essential duties of his position as a Correction Officer. Notwithstanding the Petitioner's argument, the fact that another physician offered a contrary opinion on the issue of disability is not evidence of the use of an erroneous standard by the medical panel. There is no requirement that the panel physicians agree with the opinions or findings of other clinicians. Charlene Turner v. State Board of Retirement, CR-06-27 (DALA dec. February 16, 2007.) (no CRAB dec.) Moreover, the Panel noted that it reviewed the medical records of Drs. Leitzes, Desnoyers, Medeiros, and Fall in arriving at its determination concerning whether the Petitioner was disabled from performing the essential duties of his job.

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 Correction Officer, I order that the decision of the State Board of Retirement 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