COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. Division of Administrative Law Appeals
v. Docket No. CR-07-164
State Board of Retirement,
Appearance for Petitioner:
Charles R. Casartello, Jr., Esq.
Pellegrini, Seeley, Ryan & Blakesley, P.C.
1145 Main Street
Springfield, MA 01103-0005
Appearance for Respondent:
Erin C. Nally, Esq.
State Board of Retirement
One Ashburton Place, 12th Floor
Boston, MA 02108
Sarah H. Luick, Esq.
Pursuant to G. L. c. 32, § 16(4), the Petitioner, Nancy Gosselin-Connell, is appealing the February 22, 2007 decision of the Respondent, State Board of Retirement, denying her request for accidental disability retirement benefits. (Ex. 2) The appeal was timely filed. (Ex. 1) A hearing was held March 6, 2008 at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, 4th Floor, Boston, MA 02114, pursuant to G. L. c. 7, § 4H.
Various documents are in evidence. (Exs. 1 - 16) One tape was used. The Petitioner testified. Both parties made arguments on the record.
FINDINGS OF FACT
1. Nancy Gosselin-Connell, d.o.b. 10/28/48, started working as a Maintainer I in the Housing/Operations Department at the University of Massachusetts-Amherst, in September 1997. ("A". Exs. 3 & 5. Testimony.)
2. As a Maintainer I, Ms. Gosselin-Connell's duties involved "general janitorial duties in connection with the cleaning and maintenance of a building or of an assigned area within a building or group of buildings." Tasks included removing "trash and waste from assigned areas and places outside the building at designated sites." She washed waste receptacles and cleaned bathrooms including disinfecting toilets, sinks, showers and floor areas. She dusted and polished walls, ceilings, doors, furniture, and mirrors. She vacuumed, swept, mopped, and waxed floors using a large heavy buffing machine. She kept "exterior areas … clean by sweeping, raking, and shoveling." She had to do "simple general maintenance by replacing belts, tightening screws, cleaning of equipment, replacing light bulbs and fluorescent tubes." She had to move furniture.
3. Ms. Gosselin-Connell worked 7:00 AM to 3:00 PM, Monday through Friday. Her first duty each morning was to haul away the trash in her assigned seventh and eighth floors of one of the high-rise dormitories. The trash was stored in toters kept in janitor closets. The toter could hold about 350 lbs., and was wide and about four to five feet high. Two toters could be stored in one closet. The toter had two back wheels, and there was a handle across the back. The toter had an attached hood. There was a threshold or lip at the janitor closet door. The closet door would close automatically so that the door had to be held open while the toter was pulled over the lip and out of the closet. Ms. Gosselin-Connell did this work alone. She routinely moved five toters a day, replacing the full ones with empty ones. Once out of the janitor closet, she wheeled the toter into an elevator, and/or bumped it down stairs as needed to bring it to the outside of the building. The trash she collected from bathrooms, sixteen suites, a kitchen, and lounge-room in her assigned building was placed into a toter in the janitor closet. (Testimony)
4. Ms. Gosselin-Connell's job involved significant physical exertions on a regular basis including heavy lifting, pulling and pushing heavy objects like the full toters, and reaching and bending to scrub to clean in hard to reach areas. Using the motorized wax floor buffer involved extending her arms and using her upper body strength to guide it back and forth over the floor, while relying on her body mass to keep it under control. There is no permanent light duty Maintainer I position or assignment available to Ms. Gosselin-Connell. (Exs. 3 & 5. Testimony.)
5. On March 25, 2005, Ms. Gosselin-Connell was injured when she pulled on a full and heavy toter to get it over the lip of the closet. She kept the closet door open with her left hand. She is left handed. She pulled to move the toter forward with her right hand on the handle. At this point the toter was leaning forward and on its wheels. The toter became unsteady, so she held on to the toter to re-balance it so that it would not topple over. As she did this, she experienced a rip or tear feeling with pain in her right shoulder, upper back and right arm. (Exs. 3, 5 & 7. Testimony.)
6. Ms. Gosselin-Connell thought she had pulled a muscle. She continued working that day and the next day. About six months prior to March 25, 2005, she had experienced "some similar discomfort … low level and intermittent" that had resolved "fairly spontaneously." (Exs. 10. Testimony.)
7. When the pain symptoms persisted, Ms. Gosselin-Connell decided to seek medical help. She saw her family physician on March 29, 2005. She explained at her examination that she had lifted "a heavy bin about 350 lbs. over a floor lip" when she was hurt. She was prescribed physical therapy. (Ex. 10. Testimony.) Her physical examination revealed:
Tenderness mostly to the right posterior neck into the
trapezius as well as to the anterior right shoulder just
above the axilla. ROM to shoulder is full though with
discomfort in all directions. Reflexes, strength, sensation
intact to upper and lower EXT. Neck, shoulder, low back
pain. (Ex. 10)
8. Ms. Gosselin-Connell stopped working and filed a notice of injury form about the March 25, 2005 injury. She received workers' compensation. (Exs. 3, 5 & 7. Testimony.)
9. The physical therapy treatments provided Ms. Gosselin-Connell with "only temporary relief of pain." She tried to return to work, but found she had persisting pain and stopped working again. She was referred to an orthopedist. (Exs. 10, 11 & 13. Testimony.)
10. Ms. Gosselin-Connell was evaluated by Dr. Henry Drinker, an orthopedist, on May 3, 2005. She reported to Dr. Drinker that her pain started after "pulling tote bins out of the trash room." Dr. Drinker had right shoulder x-rays taken that showed "a very lobulated, but discrete deposit of calcium in the rotator cuff at the musculo-teninous junction … [with the] films … otherwise normal except showing a Type III acromion." Dr. Drinker opined she had "bursitis and calcific tendinitis of the shoulder." He gave her a lidocaine injection on May 17, 2005, and opined that the source of her pain symptoms was "in the subacromial space because of her response to the injection." He prescribed "physical therapy to learn a home exercise program." (Exs. 11 & 12.)
11. Ms. Gosselin-Connell was evaluated by Dr. Bernard E. Rerri, an orthopedist, on May 24, 2005. By then, she had undergone physical therapy neck traction and had taken anti-inflammatory medication. Dr. Rerri understood her injury was from "pulling out trays" while performing her janitor work. She complained to Dr. Rerri of constant pain that gets "worse with prolonged standing and walking and … in the morning and … when extending her neck." Dr. Rerri opined she had calcific rotator cuff tendinitis. He found her able to do only light duty work. He recommended continuing physical therapy. (Exs. 8, 11 & 14.)
12. At a July 18, 2005 evaluation with Dr. Rerri, Ms. Gosselin-Connell complained of neck pain, right shoulder pain, and pain "radiating into her right axilla." Dr. Rerri found "no neurologic deficits … in her upper or lower extremities," but he found "mild impingement in her right shoulder." By cervical spine x-rays, she had "mild spondylosis at C5-6 consistent with her complaints." He recommended "a trial of home cervical traction," and continuing physical therapy. (Exs. 11 & 14.)
13. At an August 16, 2005 evaluation, Dr. Rerri addressed the neck symptoms and opined Ms. Gosselin-Connell should have "a work rehabilitation program that will prepare her for reintegration into her employment … [S]urgery … [is] not required for her type of neck problem." At a September 30, 2005 evaluation, Dr. Rerri recommended a cervical spine MRI, but approved a "return to work on 10/5/05 starting with light duty and lifting less than 20 lbs. of weight." Her employer could not provide this job modification. (Exs. 5 & 14.) The November 3, 2005 cervical spine MRI revealed:
Degenerative disc disease with spondylosis causing central
canal stenosis at the C5-6 level. No focal disc herniation …. Borderline Grade I C4-5 sponylolisthesis.
14. Dr. Rerri reviewed the MRI and concluded the findings were "consistent with her complaints." He opined Ms. Gosselin-Connell "has cervical spondylosis with discophyte and mild cord compression." He recommended "cervical epidural steroids and a repeat right shoulder injection … in addition to her other supportive treatments." He found her able to only undertake light duty work. (Ex. 14)
15. In January 2006, Ms. Gosselin-Connell had a right shoulder cortisone injection and a cervical epidural injection. Dr. Rerri opined she had "gotten to the point where it is clear she cannot return to her previous position." (Ex. 14)
16. Ms. Gosselin-Connell was evaluated for purposes of workers' compensation by Dr. Marc A. Linson, an orthopedist, on April 12, 2006. He understood she "was injured … pulling toters out of a trash room." Dr. Linson opined she "injured her neck, right shoulder and arm" on March 25, 2005. He diagnosed, "cervical degenerative arthritis, cervical stenosis, cervical radiculitis and calcific tendonitis of the right shoulder." He concluded these conditions "to some extent … preceded her work injury but were aggravated and symptoms precipitated by the work injury." He found this injury was "a major causal factor in her impairment, disability and symptoms." He found her able to perform work that did not involve "significant lifting," and that involved "minimal use of the right upper extremity," including "clerical or office work." He recommended "additional injections and/or surgery of various types on her shoulder or neck." (Ex. 15)
17. Ms. Gosselin-Connell sought accidental disability retirement benefits in April 2006 based on the March 25, 2005 injury. Dr. Rerri supported her claim. He concluded that despite all her treatments, she had experienced only "limited" improvement, "leaving her with significant disability restricting her daily activities including the ability to return to her pre-injury work." He opined the "main disability is from the cervical radiculopathy." In terms of further treatments for this condition, he noted surgery "is difficult and unpredictable, and frequently still leaves behind residual pain and disability." (Exs. 3 & 4.)
18. Ms. Gosselin-Connell's employer concluded she could no longer move or lift or wash or keep clean the "large trash containers" and was unable to carry out the essential duties of her Maintainer I work involving significant physical strength. (Ex. 5)
19. A Medical Panel was convened on November 17, 2006 with Drs. Victor A. Conforti and Steven A. Silver, both orthpedists, and with Dr. St. Jepan Kereshi, a neurologist. The Panel physicians were unanimous in finding no disability. (Ex. 9)
20. The Panel physicians understood Mr. Gosselin-Connell "worked as a Maintainer I employee or janitor." They understood she suffered an injury at work on March 25, 2005 "while pulling trays out of a trash can." They understood she hurt "her right shoulder and her neck." They were aware that she had "four to six weeks" of physical therapy, and shoulder and cervical spine injections "with some benefit." The Panel physicians understood that her current symptoms included "some neck pain and some shoulder pain" for which she "uses Advil occasionally." The Panel physicians understood that she experiences "some tingling … into the index and long finger on an intermittent basis … [and] occasional headaches." They reviewed the cervical spine MRI and found it showed, "some degenerative changes at C5-C6 … consistent with the available records." The Panel physicians gave a physical examination that was "limited to her neck and her right shoulder area." (Exs. 8 & 9. Testimony.)
21. The Panel physicians did not ask Ms. Gosselin-Connell how she was hurt at work. They had before them descriptions that what she was handling at work at the time was not a trash can but something heavier like a trash bin or toter, but they referred to what she moved as a trash can. These other descriptions came from the reports of Dr. Rerri, Dr. Linson, Dr. Drinker, and the Northampton Family Practice. They had information before them from the Statement of Employer form that she could not perform the heavy work tasks she was required to perform. (Exs. 8 & 9. Testimony.)
22. The Panel physicians diagnosed a cervical sprain and a right shoulder sprain "with mild tendonitis." They concluded Ms. Gosselin-Connell was "physically capable of performing the essential duties of her job as described in the current job description." They found "no objective findings" to support an incapacity. They found her prognosis to be "good." (Ex. 9)
23. On June 15, 2007, Ms. Gosselin-Connell's had right shoulder arthroscopy, debridement of the rotator cuff, arthroscopic decompression, and debridement of the anterior labrum due to her ongoing right shoulder condition. (Ex. 16)
Ms. Gosselin-Connell testified that the Medical Panel evaluation was minimal
with a limited physical examination, and that the Panel physicians did not question her about the particular duties she performed in her job as Maintainer I at the University of Massachusetts-Amherst. She testified that the Panel physicians did not ask her to describe what she was doing when she was injured on March 25, 2005. She argues the Medical Panel evaluation was flawed, because the Panel physicians failed to consider all pertinent medical and non-medical information before them. Malden Retirement Board v. Contributory Retirement Appeal Board (CRAB), 1 Mass.App.Ct. 420 ( 1973)
I conclude Ms. Gosselin-Connell is entitled to a new Medical Panel evaluation, because the Medical Panel failed to adequately consider the heavy work tasks that are part of the essential duties she performed as a Maintainer I. Their report shows they failed to provide an explanation of how she would be able to do heavy work in light of her complaints of painful and limiting neck and right shoulder conditions from the March 25, 2005 incident at work that her treating and evaluating physicians have recognized and have treated. Only the Medical Panel have found she had temporary strains from the incident and that she has recovered from them.
Ms. Gosselin-Connell's testimony was credible about how the March 25, 2005 incident occurred and about how heavy the unstable toter was. Her account of her persisting neck and shoulder symptoms was believable, and is supported by the fact that she underwent neck and shoulder injections for pain relief along with physical therapy treatments. Ms. Gosselin-Connell's testimony about the physically taxing aspects of some of the janitorial tasks she had to perform has also been recognized by her employer in the Statement of Employer form. Since the March 25, 2005 injury, the testing and treatment regimens Ms. Gosselin-Connell has undergone have included shoulder x-rays, a cervical spine MRI, physical therapy treatments, injections to the neck and shoulder, and after the Medical Panel, right shoulder surgery.
The Panel physicians assessed Ms. Gosselin-Connell's ability to work as a Maintainer I based on what they read in her job description, and based on finding the injury on March 25, 2005 was sustained while moving trays from a trash can. Yet, that information did not address with any specificity, the extent of physical exertion that she had to undertake when performing that routine task. Ms. Gosselin-Connell credibly explained that she was hurt moving not a trash can but moving a trash container toter, that was big, and become heavy to move when full. Ms. Gosselin-Connell credibly explained that she also had to use a heavy wax buffing machine on the floors that involved upper body strength by stretching out her arms to guide the motorized machine while keeping her balance. If the Panel physicians had asked her about her duties or about the kind of work she was doing when she was hurt on March 25, 2005, they would have learned about the particular level of physical strength involved in her required duties. The Panel physicians did not acknowledge that Ms. Gosselin-Connell's employer was not able to offer her any permanent light duty Maintainer I work; a recognition that her work included tasks involving significant physical exertion.
In terms of the medical evaluations, the Panel physicians found no significant objective findings to support a disability. Ms. Gosselin-Connell had pre-existing degenerative conditions such as shown by the cervical spine MRI, but the Panel physicians failed to address why the March 25, 2005 injury did not worsen or aggravate this pre-existing condition. The opinion of Dr. Linson points out the importance of considering an aggravation theory. Zavaglia v. CRAB, 345 Mass. 483 (1963) The fact that Ms. Gosselin-Connell has now had right shoulder surgery supports a determination that her right shoulder condition involved more than a sprain she had recovered from as the Panel physicians found.
The opinions of evaluating and treating physicians cannot take the place of the Medical Panel findings, but such opinions can be used to demonstrate the Medical Panel evaluation was improper. Wakefield Retirement Board v. CRAB, 352 Mass. 499 (1967) The opinions of the Dr. Rerri, a treating orthopedist, and of the evaluating orthopedic specialists, Drs. Drinker and Linson, detail why they found Ms. Gosselin-Connell continued to have neck and shoulder pain symptoms. Their evaluations support a determination that the Panel physicians did not adequately address all the pertinent medical information.
I conclude that the Medical Panel evaluation was improper because of a failure to consider all pertinent medical and non-medical facts. Malden, supra. I conclude the Medical Panel report does not adequately explain their finding of no disability in light of the physical strength Ms. Gosselin-Connell needs to perform the essential duties of her Maintainer I job. Kelley v. CRAB, 341 Mass. 611 (1961)
For these reasons, the case is remanded for the convening of a new Medical Panel. SO ORDERED.
DIVISION OF ADMINISTRATIVE LAW APPEALS
Sarah H. Luick, Esq.
DATED: June 12, 2008
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