COMMONWEALTH OF MASSACHUSETTS


Suffolk, ss. Division of Administrative Law Appeals


Betty Kullich,

Petitioner


v. Docket No. CR-06-1079

Norwood Retirement Board,

Respondent

Appearance for Petitioner:

Judith B. Gray, Esq.


Keches & Mallen, P.C.
122 Dean Street
Taunton, MA 02780

Appearance for Respondent:

Thomas F. Gibson, Esq.


2400 Massachusetts Avenue
Cambridge, MA 02140-1854

Administrative Magistrate:

Sarah H. Luick, Esq.


DECISION

Pursuant to G.L. c. 32, § 16(4), the Petitioner, Betty Kullich, is appealing the November 24, 2006 decision of the Respondent, Norwood Retirement Board, denying her request for accidental disability retirement benefits. (Ex. 2) The appeal was timely filed. (Ex. 1) A hearing was held December 19, 2007 and March 28, 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 - 26) Three (3) tapes were used. The parties filed prehearing memoranda. (Ex. A) The Petitioner testified in her own behalf. The Respondent presented the testimony of Ms. Kullich's co-workers, Bernard Cooper and Debra Melcher. Both parties filed briefs by April 28, 2008 when the record closed.


FINDINGS OF FACT


1. Betty Kullich, d.o.b. 10/7/47, began working in December 1988 for the Town of
Norwood as a Norwood Retirement Board clerk. In January 1989 she had a medical examination with Dr. John A. Davis who found she was in "overall" good health. She began working as an executive secretary in 1990 for the Norwood General Manager, John Carroll. (Exs. A, 3 & 6. Testimony.)


2. Ms. Kullich performed executive and administrative duties within the General
Manager's office. She did typing, wordprocessing, filing, and telephone answering. She composed notices, letters, and brochures. She scheduled meetings. She ensured that the General Manager's agendas were distributed to the Board of Selectmen. She maintained all the night parking permits. She did the paperwork for the civil service work for appointments and promotions. She had no assistant. The work involved sitting at a desk, answering telephone calls, getting up to move piles of files or boxes, and bending over file cabinet drawers. There were frequent interruptions in carrying out these duties. The work included access "to highly sensitive town-wide confidential information requiring the application of appropriate judgment, discretion and professional protocols." The work included addressing "a variety of questions and concerns from the public and other town departments." She had "to prioritize multiple tasks and deal effectively with interruptions, often under considerable time pressure." Ms. Kullich's duties did not change over the years. (Exs. A, 3 & 6. Testimony.)


3. Ms. Kullich was seen on January 14, 2000 for a psychiatric evaluation with Dr.
Mona N. Huk. She was found to have experienced a "recent onset of panic attacks and low grade depressive symptoms." She continue to treat regularly with Dr. Huk. During the fall 2001, she also suffered from chest pains that were not heart related but were due to anxiety symptoms. She soon began treatments for her anxiety. During this time period, she wrote to Mr. Carroll about stress related conditions she found in her work. She did not file any notice of injury reports concerning stress at work or concerning any connection of her knee and ankle conditions to her job. (Exs. 6, 7 & 11.)


4. Ms. Kullich had a lumbar spine MRI on October 18, 2001 due to symptoms of a
nagging, aching type of pain in her lower back. She had no surgery, no physical therapy, and no
prolonged treatments at the time. The MRI revealed grade I spondylolisthesis at L4-L5. In early September 2001, she saw Dr. Moreno for knee pain and swelling in her ankle. She had an ankle MRI on September 20, 2001. She had a right knee MRI on October 21, 2001. (Exs. 6, 7, 12 & 14. Testimony.)


5. On July 29, 2002, Ms. Kullich had cervical spine x-rays that showed degenerative
disc changes at C4-5 and C5-6. On February 25, 2003, she had right knee x-rays showing degenerative joint disease in the medial compartment. (Ex. 12)


6. On April 3, 2003, Ms. Kullich was seen by Dr. Susan M. Chabot for right knee
pain. She was taking Vioxx and doing strengthening exercises without much improvement. By a May 23, 2003 evaluation, she still had "effusion" in the knee. Thereafter, she had right knee arthroscopy and debridement of a medial meniscus tear, performed by Dr. Chabot. On June 11, 2003, after the arthroscopy, Dr. Chabot found Ms. Kullich needed Vioxx and physical therapy for "underlying arthritis" in the knee. (Exs. 13 & 24.)


7. On July 9, 2003, Ms. Kullich had cervical spine x-rays that again showed the
same degenerative changes. (Ex. 24)


8. At a March 5, 2004 evaluation, Dr. Huk found Ms. Kullich to be doing well and
to be stable in terms of anxiety symptoms. (Ex. 11)


9. Ms. Kullich worked in a hectic office environment. Her desk was in a small room
shared with two other workers. Her desk had an "L" shape, and there were shelves on the wall surrounding her desk holding numerous files. There was not enough space for three workers, all with cluttered desks. There was not enough room to hold all the documents, files, and other papers and messages they routinely worked with. Ms. Kullich had her desk against a wall, and she would stick various documents and messages on that wall. Her desk was heavy to move. Ms. Kullich's working environment did not change over the years. (See, Ex. 26. Testimony.)


10. On or about March 26, 2004, Ms. Kullich was alone in her office when she
received a telephone call with a request she sought to address right away. She needed a telephone number, and she knew it was on the wall over her desk. With the telephone balanced against her shoulder, she moved up from her chair and then reached forward to retrieve the telephone number on a paper on the wall. As she did this, the paper slipped down off the wall and landed between the wall and the desk. She made a small effort to pull back the desk to reach the paper, but that did not work as she felt a sharp pain in her back. Ms. Kullich hung up the phone. She was still alone with no one to immediately help her reach the paper, but she tried again to move the desk away from the wall to get the paper she needed. With this second attempt, done with more of a focused effort at pulling or pushing the desk away, she again felt a sharp pain in her back, stronger than the first pain she had just felt. She immediately stopped this effort. She had not felt this kind of pain before. (Testimony)


11. Ms. Kullich finished the workday. She asked the custodian to get the paper that
had dropped between the wall and the desk. He was able to move the desk and get the paper she wanted. In the past she had asked co-workers who shared her office to help her move her desk for reasons like this one. She did not file a notice of injury form and did not seek medical attention. She thought by resting the pain would go away. (Ex. 7. Testimony.)


12. Ms. Kullich was not scheduled to return to work again for two weeks as she was
going on vacation to Florida. After a few days of resting, she went to a Red Sox spring training game. She had to leave the game after about an hour since she was having bad back pain. She continued to rest during the remainder of her vacation. When she returned to work, she experienced an overall increase in back pain which would come on when she sat or bent over or stood for too long a time. Into April 2004, she had still not filed a notice of injury form concerning the March 26, 2004 incident. (Exs. 6 & 7. Testimony.)


13. By a May 21, 2004 evaluation, Dr. Huk found Ms. Kullich to be having an
increase in depressive and anxiety symptoms. Dr. Huk also noted her "accident" had caused an increase in physical pain. (Ex. 11)


14. Once back from vacation, Ms. Kullich saw her primary care physician, Dr. Anne
Pinto, and reported having sciatica pain symptoms upon sitting for long periods at work. (Ex. 15)


15. On June 2, 2004, Ms. Kullich had a lumbar spine MRI that showed:
Progression of L4-L5 spondylolisthesis, now indicating a grade II spondylolisthesis.
This causes moderate to severe right neural foraminal stenosis, mild central stenosis,
and moderate left neural foraminal stenosis which is new since the previous exam.

The remainder of the MRI of the lumbar spine is unremarkable. (Ex. 24)

16. On June 18, 2004, Dr. Julian K. Wu, a neurosurgeon, evaluated Ms. Kullich. He
noted a three year time period where she
has been complaining of pain in the lateral aspect of her right knee radiating down to
the left ankle … about a month ago she started developing worsening pain with low
back pain and radiating pain down her right buttock down the posterior thigh posterior
to the knee … seemed to be connected to the pain that she has down from her knee to
her ankle. (Ex. 14)

Dr. Wu also noted Ms. Kullich's complaint of having back pain after sitting a long time at work.

He noted that the 2001 MRI for low back pain showed "Grade I spondylolisthesis at L4-5" with "no significant neural impingement." In addition, the recent MRI revealed "progression of her spondylolisthesis at L4-5 now to Grade II with … narrowing of the neuroforamen bilaterally, right worse than left." Ms. Kullich did not report any "accidents or injuries" to Dr. Wu. Due to this back condition, Dr. Wu wrote her a note that she should not work more than a half day each day due to "severe low back pain." (Ex. 14)


17. Ms. Kullich began working only half days at some point in and around June
2004. She continued to experience low back pain while working. By mid September, she felt she could no longer work. (Ex. 23. Testimony.)


18. Ms. Kullich was evaluated in August 2004 at a pain management center for her "low back pain and right-sided radiculopathy, secondary to anterior spondylolisthesis of her lower lumbar spine." By this time, she had tried an epidural steroid injection, but had not experienced pain relief. She was also doing physical therapy and taking increased medication for pain relief. The plan was to now give her "facet joint injections at L3-L4, L4-L5, and L5-S1." (Ex. 15)


19. On August 25, 2004, Dr. Chabot assessed Ms. Kullich's right knee arthritis. Ms. Kullich had tried injections, but experienced no lasting improvement. Dr. Chabot found her to be "getting progressively disabled … aching pain even at rest and … unable to walk any distance … often limping … the knee does not feel stable." Dr. Chabot noted her complaint of being unable to sit for long because of her back and unable to stand for long because of her knee. Dr. Chabot found her next treatment option to be knee replacement surgery. (Ex. 13)


20. On August 26, 2004, Dr. Simcha J. Weller, a neurosurgeon, found Ms. Kullich to be a candidate for back surgery. Dr. Weller opined that her low back pain, right leg pain and paresthesias had increased over the past few years from prolonged sitting at work. Dr. Weller recommended "L4-5 decompression and fusion," but also recommended that she stop working as she "is currently unable to perform her duties … and would need significant time to recover from her surgery … unable to return to her current occupation." (Ex. 16)


21. On September 9, 2004, Ms. Kulich filed a notice of injury report listing May 21, 2004 as a date of injury, and writing that she was not able to work because her job required "prolonged sitting & repetitive motion." She noted this occurred while she was working part-time. This notice of injury was updated on September 16, 2004 noting the first day of disability as September 15, 2004. One of her office co-workers was Debra Melcher, who was the workers compensation administrator, and she helped her to fill out the notice of injury form. Ms. Kullich received workers compensation payments. (Ex. 7. Testimony.)


22. Dr. John F. Mahoney, a neurologist, evaluated Ms. Kullich on October 26. 2004.
He had examined her earlier in the month and was aware of the treatments she had received. He concurred with the recommendation that she should have back surgery. He noted her work history of;
prolonged periods of time working at a desk, utilizing the computer and frequently being responsible for a good deal of movement of office materials that included considerable
amount of bending, lifting, twisting, turning, etc. … there has been a cumulative affect to her low back. (Ex. 20)

23. On October 27, 2004, Ms. Kullich was evaluated by Dr. Peter P. Anas, an orthopedist. He opined she suffered from spondylolisthesis at L4-L5 with foraminal disc herniation. She reported to him that she had moved her desk in March 2004 "and had a profound exacerbation of her lower back pain that was so severe she could not sit for much more than 10 minutes." He recommended having "decompression and posterolateral fusion at L4-5." (Ex. 17)


24. On November 5, 2004, Dr. Michael H. Freed, a neurosurgeon, evaluated Ms. Kullich. She told him she had not experienced any specific injury until late March 2004 when she moved her desk at work "and felt a pain in her lower back on the right side … like she had 'pulled a muscle.' … [but she] did not initially seek medical attention." Dr. Freed opined she had spondylolisthesis at L4-L5 with radiculitis and right neck and shoulder pain. He opined that the spondylolisthesis with radiculitis was "more likely than not, degenerative in nature," and was "not caused by" but "was aggravated by the incident in March 2004," as were the right neck and shoulder conditions. He opined she could do sedentary work using an orthopedic chair, but would need to be able to move around and stretch every hour. (Ex. 18)


25. Ms. Kullich had spinal fusion surgery with Dr. Anas on February 2, 2005. About a week later, she had further surgery to remove a hematoma at the operative site. (Exs. 19 & 24.)


26. Ms. Kullich had a CT lumbar spine scan on March 17, 2005 that showed:
Transpedicular fixation at L4-5. Bone graft in the disc space and left intertransverse region, without current solid fusion. (Ex. 24)

27. Dr. Anas read the CT scan as showing "no neurocompression." He noted Ms. Kullich remains "tender about her knee where she is osteoarthritic." He opined she had "residual radiculitis L5 pattern on the right," and "osteoarthritis of the right knee." By the end of April 2005, he found she had overall improvement in her back and leg pain. On July 27, 2005, he found she had "moderate pain." Nevertheless, he opined she was still "disabled from gainful employment due to chronic pain, narcotic usage, inability to drive, and inability to function." (Ex. 17)


28. Ms. Kullich had EMG/nerve conduction studies done on June 27, 2005. The results were "abnormal," showing,
acute/active right L5 motor radiculopathy … consistent with … persistent pain affecting the right hip, thigh, foreleg and foot region consistent with a right L5 distribution and … with a sensory dysfunction and disturbance in the same distribution … no evidence
of a right peroneal neuropathy … some evidence for impingement or entrapment of the exiting right L5 root. (Ex. 24)

29. Ms. Kullich had a lumbar spine CT scan on September 8, 2005 that showed at L3-
L4, "mild diffuse disc bulging and no significant compromise of the spinal canal or the neural
foramina." At L4-L5, it showed "no evidence of anterior or posterior osseous fusion." At L5-S1, it showed "no significant compromise of the spinal canal or the neural foramina … No sacral abnormalities … No paraspinal masses … No other abnormalities." (Ex. 24)


30. Ms. Kullich was evaluated on August 1, 2005 by Dr. Charles DiCecca, an orthopedic surgeon. He noted that she had a physical therapy incident about three weeks after her surgery where she developed "severe right leg pain" after being "positioned in a prone fashion and told to raise her head and shoulders." She then had x-rays which showed the fusion was not impacted, but the increased pain persisted. He also noted an incident she had on April 6, 2005 when she "stumbled while entering a bathroom but did catch herself before she fell to the ground." At the time he saw her, she was having aqua therapy. He noted she had been fitted for "an ankle fixed orthosis." Dr. DiCecca considered her history, including the increase in back symptoms and evaluations from May 2004, and opined that she "had a mechanically unstable spine before the work incident of 3/24/04 (sic), and had been experiencing symptoms relating to this condition, which later progressed." Dr. DiCecca opined that the spondylolisthesis she had at L4-L5 prior to the work incident would be expected to progress and had by the time of the March 2004 incident. He diagnosed a "chronic L4-L5 segmental instability, with the resultant development of a spondylolisthesis reaching a grade 2 level, primarily based upon degenerative facet changes leading to mechanical instability and the development of spondylolisthesis with progressive qualities." Although he found the March 2004 incident aggravated her pre-existing condition, he assigned more weight to the natural progression of the condition to explain her current condition rather than the work incident that only aggravated the spinal condition "to some degree." (Ex. 21)


31. On August 26, 2005, Ms. Kullich was evaluated again by Dr. John Mahoney. He concluded that the surgery resulted in Ms. Kullich experiencing "significant improvement to what had been intractable and worsening generalized back pain." He noted this improvement also reached "some of the neuropathic symptoms affecting the right leg." Nevertheless, he recognized that she continued to have "persistent significant right L5 lumbar radiculopathy symptomatology" as documented in her June 27, 2005 neurologic testing. Due to a potential "persistent right lateral recess L5 root compression," Dr. Mahoney opined that she "might need additional decompressive surgery." He also acknowledged that she might have "an element of persistent instability to the lumbar spine, which could be provocative etiology." He opined her "radiculopathy affecting the right leg may be due to intrinsic damage to the nerve root itself," and that she "might be a candidate for a Spinal Cord Stimulator to help control intractable pain." Dr. Mahoney found it "clear that the lumbar problem is in existence due to an accumulation of injury sustained when working," including "a documented specific incident from March 2004" when she tried "to move a heavy desk to retrieve important papers" and had "a severe acceleration of back symptomatology with associated right leg symptomatology that ultimately forced her to leave work." He found her "totally and permanently disabled from any form of gainful employment," with the disability "provoked by the work injury that occurred … March 2004." He concluded that incident "is the major contributing cause to her lumbar condition." (Ex. 20)


32. In October 2005, Ms. Kullich filed an application for accidental disability retirement benefits. In her application, she listed as the reason for her disability the office duties she performed that required her to bend, lift, twist, carry agendas, and sit for long time periods. She noted these activities impacted her back and produced radiating pain into her right leg. She listed her disability as commencing by September 19, 2004 . She mentioned her February 2, 2005 back surgery. She also explained what happened at work on March 26, 2004. She emphasized that this incident was "in addition to working for 16 yrs. in a very crowded work environment with very little space to maneuver safely … [contending that it was] hazardous." (Ex. 3)


33. Dr. Anas and Dr. Mahoney both supported Ms. Kullich's claim for accidental disability retirement benefits. Both found the March 26, 2004 incident to be causative of her disability. (Exs. 4, 5 & 20.)


34. A Medical Panel was convened on February 8, 2006 with orthopedists Dr. John Groves and Dr. James Hewson, and with neurologist, Dr. Arthur Safran. The Panel answered the certificate unanimously in the affirmative. (Ex. 9)


35. The Medical Panel were provided ahead of the evaluation with medical records from Dr. Huk, Caritas Norwood Hospital, Associates in Internal Medicine, Carney Hospital, Guild CT and MRI Center, Therapy & Sports Rehab, Beth Israel Deaconess Hospital, Newton-Wellesley Hospital, Arnold Pain Management, New England Baptists Hospital, ENT Specialists, Dr. Mohammad Farivar, Dr. Susan Chabot, and New England Orthopedic & Spine Surgery, LLC. (Ex. 8)


36. The Medical Panel understood that Ms. Kullich worked as "an executive assistant to the General Manager for the Town of Norwood." They understood that on March 26, 2004, "she reached over her back and went to pull something out which had fallen behind her desk" and "she developed the sudden onset of back pain while moving the desk." They noted she had "increasing pain while she was in Florida for two weeks" following the incident. They were aware that she had various evaluations for back pain with Dr. Julian Wu and the Beth Israel Pain Clinic. They understood she had epidural injections and multiple facet blocks. The Medical Panel also knew that she had opinions from Dr. John Mahoney and Dr. Peter Anas that led to Dr. Anas performing "spinal fusion" surgery on February 2, 2005. The Panel members were aware that her post-surgery condition was complicated by a hematoma, and that she had "physical therapy for two months following the surgery." They understood that she had "back pain in 2001 but had no specific trauma," with an MRI that "showed spondylolisthesis for which she was treated with physical therapy." The Panel members understood that at the time of the March 26, 2004 incident, "she had some back pain but she had missed no work previously because of back problems." They had knowledge of her right knee arthroscopy. They understood her current complaints were of trouble climbing stairs, sitting for long time periods, and "pain in the low back and right buttock radiating to the knee and the great toe." They were aware that she was treating with Dr. Anas, receiving aqua therapy, using a cane, and taking medication for pain relief. They reviewed the medical records they had received. They reviewed test results, including the MRI, CT scans, and EMG testing. They noted that the June 2, 2004 MRI showed "progression of L4-5 spondylolisthesis indicating grade II spondylolisthesis with mild central stenosis which was new since the previous exam." The Panel members conducted a physical examination. They reviewed her job description. (Ex. 9)


37. The Medical Panel diagnosed:
1. Spondylolisthesis lumbar spine L4-5, grade II, status-post lumbar fusion
with iliac bone graft;
2. Persistent right leg radiculopathy;
3. Possible mild corda equine syndrome. (Ex. 9)

The Panel found Ms. Kullich to be totally and permanently disabled, and found the March 26, 2004 incident "might be the natural and proximate" cause of this disability. The Panel noted the "pre-existing spondlylolisthesis … worsened and was probably aggravated by the incident … which resulted in increasing symptoms in the low back and symptoms in the right leg." (Ex. 9)


38. By letter of July 7, 2006, the Medical Panel were asked to clarify their opinion as to causation involving the March 26, 2004 incident. The Panel were asked to address whether the incident progressed or worsened the underlying spondylolisthesis. The Panel were asked to address if their opinion would be the same if they understood Ms. Kullich had not actually moved the desk but had attempted to move it. The Panel were asked to consider the various physician reports from 2004, including those of Dr. Wu, Dr. Pinto, Dr. Weller, and Dr. Mahoney, that did not mention an incident on March 26, 2004, along with the fact that there was no report of injury form filed in regard to the incident at and around the time it occurred. (Ex. 10)


39. The Medical Panel responded on July 28, 2006. The Panel noted that they relied "significantly on the applicant's history regarding any injury or work related injury." They noted that the history the applicant gave them may not have been what the documents show occurred, but felt that when an incident is not witnessed by others, the Panel must rely upon "only the claimant's statement." The Panel acknowledged that it "is important and certainly … significant ... concerning the veracity of the alleged work related injury," that a "treating physician did not record a history" of it at the time. The Panel went on to explain:
[O]ur opinion is that prolonged sitting may have contributed to a slight extent to the claimant's pre-existing spondylolisthesis of the lumbar spine but was not the basic
cause of her subsequent necessity for surgery.

[T]he pre-existing spondylolisthesis was worsened and probably aggravated by the incident that occurred on March 26, 2004, based on the claimant's history as was given
to us and related to the fact that she did have pre-existing spondylolisthesis …[which]
can be present for many years and only become symptomatic with deconditioning of the lumbar spine as in prolonged sitting and with a minor incident such as bending over and carrying out minor lifting.

As regards the degree of aggravation … this cause is difficult to estimate but it would seem reasonable that the incident did render the back more symptomatic and made surgery necessary. The actual percentage of apportionment is impossible to state. (Ex. 10)

40. Ms. Kullich was evaluated on August 9, 2006 by Dr. Glen D. Seidman, an orthopedist. He understood that on March 26, 2004 she had been "moving a desk that resulted in severe low back pain along with right lower extremity radiating pain." He was aware of her previous "occasional seldom mild lumbar strain that quickly resolved without any treatment." He was aware of her post March 2004 back surgery on February 2, 2005, and her continuing symptomatology. He reviewed numerous physician evaluations, including the Medical Panel determinations and the evaluation of Dr. DiCecca. He gave a physical examination. He noted the diagnosis of grade 2 spondylolithesis at L4-5 with "severe bilateral neural foraminal stenosis." He connected the severity of her back condition to the March 26, 2004 incident because prior to it, her back condition had been "asymptomatic with the exception of seldom mild self-resolving strains of her lumbar region." (Ex. 22)


41. Dr. Mahoney reported on Ms. Kullich's condition on March 6, 2008. He found her still having "disabling low back pain with associated neuropathic symptomatology effecting the right lower extremity and right foot." He reiterated the significance of the March 26, 2004 incident at work;
when Ms. Kullich was in fact trying to move a heavy desk and sustained a twisting
injury to the lumbar spine resulting in the initiation of severe back pain which was
to progress and to ultimately be associated with neuropathic symptoms … and
requiring extensive surgery on February 2, 2005. (Ex. 25)

42. The Norwood Retirement Board denied Ms. Kullich's claim on November 26, 2006 based on:
Various medical reports from physicians which state injury due to prolonged sitting
and repetitive motion and that the applicant has failed to carry the burden of proof necessary for an award of accidental disability retirement. (Ex. 2)

Ms. Kullich filed a timely appeal. (Ex. 1)


Conclusions of law

Accidental disability retirement is to be granted when the member is unable to work "by reason of a personal injury sustained or hazard undergone as a result of, and while in the performance of his duties at some definite place and at some definite time." G.L. c. 32, § 7(1). Ms. Kullich claims that performing the particular physical tasks and engaging in the specific physical movements her job entailed for sixteen years significantly worsened her pre-existing low back condition, and produced severe pain with movement limitations that rendered her disabled by the fall of 2004. She also claims she suffered a specific back injury on March 26, 2004 when she tried to move her heavy desk. She contends this injury aggravated and hastened the deterioration of her underlying back condition so as to render her disabled by the fall of 2004. As to both claims, Ms. Kullich carries the burden of proof to show, by a preponderance of reliable and credible evidence, that the activities involved in her daily work and the actions she engaged in on March 26, 2004 were not, on balance, normal life activities or activities common to the performance of many jobs. Adams v. Contributory Retirement Appeal Board (CRAB), 414 Mass. 360 (1993).


The Adams case, supra, is instructive in determining whether Ms. Kullich's long term working conditions and the activity she engaged in on March 26, 2004, were job performance activities that satisfy the Section 7(1) criteria for being a "personal injury." Ms. Adams was an elementary school teacher who had "continual periods of walking and standing and frequent bending over to assist students in a variety of tasks." Id. at 361. She had suffered from polio myelitis as a child and was left with residuals from that disease which included "mild scoliosis of her back." She also wore a leg brace. Id. at 361. Over time, Ms. Adams became unable to continue working due to her back condition. She sought accidental disability retirement benefits, not based on a particular incident, but based on the nature of her particular duties and working conditions. A Medical Panel found she was permanently disabled and that this might be the natural and proximate result of her carrying out the physical demands of her particular job. To be a compensable personal injury under Section 7(1), however, having unique job duties is not enough. Rather, it is the frequency and the intensity of the work activity when compared to other jobs that "are the factors that must be relied on in distinguishing between compensable injuries and gradual deterioration, caused by wear and tear, that would be common to many occupations as well as daily life, and which is not compensable." Id. at 365-366. Ms. Adams' work activities were found to be, on balance, the result of wear and tear since they "are activities simply too common among necessary human activities to constitute identifiable conditions of employment," citing Zerofski's Case, 385 Mass. 590, 596 (1982). Id. at 366.


Ms. Kullich's testimony and that of her co-workers, along with the photographs of the office showing its small size, and shelves and desks filled with many papers and files, demonstrate overly crowded working conditions with insufficient space. Ms. Kullich's job description demonstrates, along with her testimony, that she had to perform simultaneously multiple tasks involving many papers, messages, and telephone calls. The findings show she had to physically maneuver to locate documents and files that were not easy to reach. In addition, she had to sit for prolonged periods of time performing word processing and typing, and that she had to bend over file drawers to file and retrieve papers.


In terms of the March 26, 2004 incident, Ms. Kullich did not testify that she moved the heavy desk, only that she tried to move it enough to reach the paper that had fallen off the wall and was now behind the desk. She described pushing or pulling against the desk but never testified that she engaged in any vigorous action for any length of time. Rather, she explained that her first effort to push the desk away from the wall caused back pain, and that when she tried again to push or pull at the desk with more of a focus to her effort, she again experienced back pain that caused her to stop the effort. All this trying to move the desk was done at her own pace and not in the midst of some sudden crisis to have to move it away from the wall. There is also no evidence that once she experienced sharp pains in her back from her effort, she had to leave work to seek medical attention or to go immediately home to rest. Rather, the record shows she continued to work the rest of the day, went on vacation to Florida right after that, and never filed a notice of injury concerning her attempt to move her desk. All these factors support a determination that the physical activity involved on March 26, 2004 was not much different from an activity of daily life of trying to push or pull at a heavy object at one's own pace.


Ms. Kullich's claim involving her working environment, on balance, involved the kinds of activities that are common to many occupations. Sitting at desks for long time periods, or bending over to reach work materials, or reaching to answer the telephone, even if done in a cluttered space, does not rise to the level of a compensable personal injury under Section 7(1) even if the worker succumbs to the activities performed day after day. Such activities are simply common activities performed by many workers in various occupations and are also activities of daily life as explained in Adams, supra, and Zerofski, supra.
Other cases support this conclusion. In Brown v. CRAB & Bristol County Retirement Board, Mass. Appeals Court No. 95-P-1038, (6/12/96), accidental disability retirement benefits were denied. Ms. Brown had been working at her computer most of the work day when she rose from her chair to answer the telephone, twisting her body in the process. She felt a sharp pain in her back and leg. The Court ruled that rising from a chair was an ordinary life activity and a common work activity, and Ms. Brown did not show that the chair she used was so defective as to have caused her harm. Nor did she show that she rose from the chair in the midst of a work hazard she encountered, which could have made this activity a compensable harm.


Similarly, in Sanella v. CRAB & Teachers' Retirement System, Mass. Appeals Court No. 95-P-1244, (5/29/96), the Court held that the act of a teacher in bending over to pick up a pen was not a compensable personal injury even if it caused a disability. See also, McDonald v. Middlesex County Retirement Board, CR-9271 (DALA, 3/16/87) (bending over a copier machine to retrieve papers caused a police officer to have a back disability, but it was not a compensable personal injury).


In this case, the record contains extensive medical evidence that Ms. Kullich's underlying grade I spondylolisthesis progressed to become a permanently disabling grade II spondylolisthesis by the time she stopped working in September 2004. This evidence is supported by various test results and by Ms. Kullich's account of her inability to work on any sustained basis at her regular duties. The Medical Panel physicians reached the same conclusion. In addition, the record shows that the back condition was complicated by a limiting right knee condition contributing to her inability to keep working. As Dr. Chabot, who treated her knee condition, noted, she could not take breaks from sitting for a prolonged time to stand since the knee condition made that difficult. (See, Ex. 13.) By June 2004, Ms. Kullich was working only half days due to back pain, and by mid-September 2004, even that schedule proved too hard for her. Although she did not file any notice of injury claim concerning the March 26, 2004 incident before she left work, she did file her application for accidental disability retirement benefits within two years of that incident and could rely upon it for her claim, per G. L. c. 32, § 7.


The Medical Panel found that the March 26, 2004 incident might be the natural and proximate cause of the back disability. This is the Medical Panel's role to assess causation, but not to determine the ultimate question on causation. Campbell v. CRAB, 17 Mass. App. Ct. 1018, 1019 (1984) In their clarification report, the Panel explained that even if the physical actions involved in the incident were minor, they could still have triggered an increase in back pain due to the progressing spondylolisthesis. The Medical Panel had before them all the pertinent medical information as is necessary for a proper Medical Panel evaluation. Malden Retirement Board v. CRAB, 1 Mass. App. Ct. 420 (1973), and the Panel members properly addressed an aggravation theory of causation. See, Zavaglia v. CRAB, 345 Mass. 483 (1962).


The reports of Dr. Anas and Dr. Mahoney, both treating physicians and specialists, also support the Medical Panel's determination of medical possibility, and both concluded that the March 26, 2004 incident caused the disability to emerge when it did. Dr. DiCecca provided a well-reasoned opinion to the contrary, explaining that the March 2004 incident likely aggravated the underlying back condition, which was progressing on its own, but concluding that the degree of aggravation was not likely substantial. The test results, the history of the back condition from 2001 onward, the need for surgery, and these medical opinions, show that Ms. Kullich experienced an increase in the frequency of her back symptomatology at work following the March 26, 2004 incident. The fact that her physical actions at that time may have worsened her back condition, however, does not make the March 26, 2004 incident a compensable injury under Section 7(1).


Even though it appears that Ms. Kullich succumbed to the incident of March 26, 2004, she did not sustain a compensable personal injury at that time. Working for sixteen years in the kind of work environment where she had to perform the kind of physical activities she did, is also not a compensable personal injury. Therefore, the decision of the Norwood Retirement Board is affirmed.

SO ORDERED.


DIVISION OF ADMINISTRATIVE LAW APPEALS

Sarah H. Luick, Esq.
Administrative Magistrate


DATED:


This information is provided by the Division of Administrative Law Appeals .