Suffolk, ss. Division of Administrative Law Appeals
v. Docket No. CR-07-584
Dated: February 26, 2010
State Board of Retirement,
Appearance for Petitioner:
Joseph G. Donnellan, Esq.
100 River Ridge Drive, Suite 203
Norwood, MA 02062
Appearance for Respondent:
Emily J. Robbins, Esq.
State Board of Retirement
One Ashburton Place, 12th floor
Boston, MA 02108
Maria A. Imparato, Esq.
This case is remanded to the medical panel to consider the aggravation theory of causation where the panel failed to consider whether the Petitioner's work-related injury might have aggravated his pre-existing cervical arthritis to the point of total and permanent disability.
Owen Ingram filed a timely appeal under G.L. c. 32, s. 16(4) of the July 27, 2007 decision of the State Board of Retirement to deny his request for accidental disability retirement benefits. (Exs. 1, 2.)
I held a hearing on January 12, 2010 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA.
I admitted documents into evidence. (Exs. 1 - 8) I marked the Petitioner's pre-hearing memorandum "A" for identification, and the Respondent's pre-hearing memorandum "B" for identification. The Petitioner testified. There is one tape cassette of the hearing.
FINDINGS OF FACT
1. Owen Ingram, d.o.b. 12/14/1956, worked for the Department of Mental Retardation from April 2, 1978 to July 11, 2005. He held the position of Vocational Instructor at the Charles V. Hogan Center when he stopped working. (Exs. 3, 5.)
2. From 1978 to 1989, Mr. Ingram worked as a Mental Health Technician at the Berry Center. He took clients into the community, put clients in two-point restraint when necessary, and helped clients with activities of daily living. He estimates that he had to restrain clients up to four times a day. He estimates that he was assaulted by clients more than one thousand times while he held this job. (Testimony.)
3. From 1989 to 2004, Mr. Ingram worked as a Campus Police Officer at the Hogan, Berry and Danvers DMR sites. He had full arrest powers and controlled admittance to the buildings, making sure no drugs or alcohol came onto the property. He estimates that he performed hundreds of restraints of clients. He estimates that he was assaulted hundred of times while he held this job, and went to the emergency room on numerous occasions with strains and bruises from being knocked down by clients. (Testimony.)
4. In or about 2004, Mr. Ingram became a Vocational Instructor at the Hogan Center. His job included going on the ward from 7 - 9 a.m. to assist clients with direct morning care. He took clients to job sites and provided hand-over-hand assistance to clients learning vocational skills. His job required him to physically restrain behaviorally acting-out clients, transfer individuals to and from wheelchairs with a battery-operated lift, and reposition individuals in beds and wheelchairs with the assistance of other staff. His job required lifting and bending. (Testimony; Ex. 3, p. 2; Ex. 5, p. 2.)
5. On July 11, 2005, Mr. Ingram was physically assaulted by an agitated client who grabbed Mr. Ingram by the neck. A nurse came to give the client drugs. Forty-five minutes later Mr. Ingram felt a burning sensation in his neck. He was seen in the emergency room for acute cervical strain and given Flexeril and Vicodin. He never returned to work. (Testimony; Ex. 5, notices of injury appended; Ex. 8, 7/13/05.)
6. In February 2005, Mr. Ingram consulted his primary care physician, Edmund S. Schiavoni, M.D., with a complaint of pain in his right knee after playing basketball. Dr. Schiavoni noted his impression of degenerative joint disease in both hands; right knee strain; hypertension; noncompliance with medication; and anxiety and depression. (Ex. 8, 2/25/05.)
7. On June 21, 2005, Mr. Ingram returned to Dr. Schiavoni with hand and arm pain. Dr. Schiavoni noted that Mr. Ingram had recently had an MRI of the cervical spine that demonstrated degenerative changes without focal spinal cord or nerve root impingement for which he had received physical therapy. "The patient attributes all of his orthopedic difficulties to a punishing daily schedule and years of physical work on his jobs." Dr. Schiavoni noted that Mr. Ingram said he felt emotionally overwhelmed and depressed. "I feel like I am falling apart." (Ex. 8, 6/21/05.)
8. Dr. Schiavoni noted his impression of bilateral hand arthritis, degenerative joint and disc disease of the cervical spine, right knee ACL and medial meniscal tears and anxiety and depression. Dr. Schiavoni opined that Mr. Ingram "is clearly overwhelmed both in his personal situation and in his job. He has the option to consider early retirement or partial retirement which I urged him to consider. He clearly needs to switch to job responsibilities which are less physically demanding due to his orthopedic limitations." Mr. Ingram indicated that he did not want to participate in psychotherapy or to take antidepressants. (Ex. 8, 6/21/05.)
9. On July 13, 2005, two days after the client grabbed his neck, Mr. Ingram was seen by Lee Anne Lyons, PA-C, in Dr. Schiavoni's office. She noted, "Patient comes in for a follow-up Workman's Compensation injury. This patient has a history of chronic neck pain. He did have an MRI which showed basically some arthritis change but no surgical problems. He was making very good progress in physical therapy and actually was discharged on Saturday to resume home therapy. Unfortunately he returned to work on Monday and was attacked by one of the clients there. He states that he was grabbed around the neck and thrown down to the ground. He does suffer from chronic pain in his neck and his hands. Throughout the day his pain got increasing[ly] worse and he did go to the emergency room." (Ex. 8, 7/13/05.)
10. Ms. Lyons's physical examination demonstrated that the range of motion of Mr. Ingram's neck was markedly decreased with left lateral bending and rotation, with visible spasm present in the cervical spine. He was extremely tender to palpation throughout the bilateral trapezius muscles as well as the cervical spine itself. Ms. Lyons diagnosed "new cervical strain and spasm in the setting of chronic arthritis of the neck." She filled out worker's compensation forms to keep Mr. Ingram out of work because she opined that he could not lift, bend, kneel, squat or stand for any long period of time. (Ex. 8, 7/13/05.)
11. Mr. Ingram saw Dr. Schiavoni in follow-up on August 1, 2005, complaining of burning, tightness and pain in his right lateral neck and posterior cervical area "which has been persistent since his original injury." Dr. Schiavoni noted that Mr. Ingram had an appointment to see a neurologist. "This had previously been recommended to him by orthopedic spine surgery in light of complaints noted before which antedated his current injury." Dr. Schiavoni noted that Mr. Ingram was still depressed, anxious and overwhelmed. (Ex. 8, 8/1/05.)
12. Dr. Schiavoni noted his impression of history of cervical degenerative disk and degenerative joint disease; recent occupational injury with superimposed cervical sprain with spasm; lower extremity sensory and motor symptoms of uncertain relation to these diagnoses; and anxiety. He recommended a repeat MRI. (Ex. 8, 8/1/05.)
13. At a follow-up visit with Dr. Schiavoni on September 6, 2005, Mr. Ingram indicated that he continued to have right neck pain "associated with burning causalgic type discomfort which radiates down the right side of his neck to his right shoulder," made worse by activity. MRI revealed spondylosis in both the cervical and lumbar spine without nerve root impingement. Mr. Ingram remained in physical therapy for his neck. (Ex. 8, 9/6/05.)
14. At another visit to Dr. Schiavoni on December 5, 2005, Dr. Schiavoni opined that Mr. Ingram presented a peculiar situation that was hard to understand. "The patient had originally maintained that he was feeling better and wished to go back to work. He then came in on 10/20 stating that he was having neck pain which prevented him from returning to the workplace. He states that his employer had agreed with his disability and had offered him alternative employment in a[n] occupation which did not involve significant physical exertion and would meet his physical limitations. The patient is now stating that he did not take the alternative employment offered to him because the hours were long and mandatory overtime was involved. … The patient now feels that the only alternative left to him is to go out on disability retirement." Mr. Ingram agreed to begin taking Zoloft and to start mental health counseling. (Ex. 8, 12/5/05.)
15. On December 23, 2005, Mr. Ingram reported to Dr. Schiavoni that he continued to have pain in his neck and hands. He started taking Zoloft, but did not pursue counseling. (Ex. 8, 12/23/05.)
16. At his visits to Dr. Schiavoni in January, February and March 2006, Mr. Ingram continued to report neck pain. Dr. Schiavoni continued to diagnose chronic cervical pain. (Ex. 8, 1/20/06; 2/20/06; 3/20/06.)
17. At his visit to Dr. Schiavoni on May 22, 2006, Mr. Ingram reported that he fell down his front steps on April 24th which injured his shoulder and "exacerbated his cervical discomfort." Physical examination revealed spasm of the cervical spine with point tenderness along the cervical paraspinous area radiating into the trapezius area with marked voluntary guarding. Dr. Schiavoni noted his impression of chronic cervical pain in the setting of underlying cervical spondylosis. He planned to refer Mr. Ingram to pain management for evaluation of chronic neck pain. (Ex. 8, 5/22/06.)
18. On May 26, 2006, Dr. Schiavoni noted that Mr. Ingram had been emotionally labile, irritable and verbally abusive to his family. Mr. Ingram was taking Neurontin for chronic musculoskeletal pain, and had begun counseling once a week. Dr. Schiavoni prescribed clonazepam. (Ex. 8, 5/26/06.)
19. On June 30, 2006, Mr. Ingram reported to Dr. Schiavoni that after doing some yard work, he developed burning pain in his right lateral neck as well as stiffness and tenderness in that area. Dr. Schiavoni noted his impression of chronic cervical pain with recent strain and spasm of the right trapezius overlying cervical DJD. (Ex. 8, 6/30/06.)
20. On July 31, 2006, Mr. Ingram reported to Dr. Schiavoni that he was experiencing tingling and shooting pains radiating from his neck to his bilateral shoulders. Dr. Schiavoniobserved that Mr. Ingram "has known cervical spondylosis but has had no evidence of nerve root impingement on prior MRI, most recent of which was in 8/05." Physical examination of the cervical spine revealed decreased range of motion in flexion and extension and lateral rotation with some spasm in the trapezius and bilateral cervical musculature. Dr. Schiavoni planned to re-enroll Mr. Ingram in physical therapy. (Ex. 8, 7/31/06.)
21. On August 28, 2006, Dr. Schiavoni noted that Mr. Ingram had left arm EMGs on August 1st that revealed the possibility of a mild left C6/7 radiculopathy "but this was not definitive and may also be interpreted as being normal." Mr. Ingram reported that he found physical therapy for neck stiffness and pain to be useful. Dr. Schiavoni recommended that Mr. Ingram remain in physical therapy. (Ex. 8, 8/28/06.)
22. Mr. Ingram filed an application for accidental disability retirement benefits on November 6, 2006, citing: severe arthritis of the neck and back as well as the left and right hand; osteoporosis; high blood pressure; gastric disorders - acid reflux disorder and irritable bowel disorder; enlarged prostate; and nervous disorders - depression and anxiety. (Ex. 3.)
23. Mr. Ingram indicated in his application that the reason for his disability was an assault by a resident on July 11, 2005 "causing cervical strain and spasms." (Ex. 3, p. 5.)
24. Dr. Schiavoni filed a statement in support of the application answering all certificate questions in the affirmative. Dr. Schiavoni opined that the "current diagnoses causing impairment include cervical spondylosis with chronic cervical spasm exacerbated by occupational injury of July 11, 2005," lumbar spondylosis, advanced DJD bilateral first carpometacarpal joints, and anxiety and depression creating inability to function in a stressful employment setting. "These medical conditions create total and permanent incapacity." Dr. Schiavoni opined that "chronic pain in his neck and hands … precludes gainful employment in even a sedentary occupation at this time." (Ex. 4)
25. Dr. Schiavoni opined with respect to causation. "It is felt that the substantial medical basis for the patient's advanced degenerative arthritis is the physical duties to which he was subjected to over a period of years in his employment as a police officer and subsequently as a vocational rehabilitation counselor. His injury following assault by a client of the state on July 11, 2005 further exacerbated his neck pain. … It is indisputable that whatever degree of preexisting condition may have been present was significantly exacerbated by his workplace injury of July 11, 2005." (Ex. 4.)
26. A regional medical panel composed of Richard N. Warnock, M.D., an orthopedic surgeon; Seth N. Schonwald, M.D., an internist; and Glen Ross, M.D., an orthopedic surgeon, convened on May 15, 2007 to evaluate Mr. Ingram. (Ex. 7.)
27. The panel answered unanimously in the affirmative with respect to disability and permanence, and in the negative with respect to causation. (Ex. 7.)
28. The panel reviewed a job description and medical records, took a history and reviewed medical records. The panel diagnosed "numerous ongoing issues. These include various body pains … He seems to suffer from ongoing cervical discomfort after the alleged exacerbation of cervical pain in July 2005." (Ex. 7.)
29. The panel noted that review of Dr. Schiavoni's medical records revealed that Mr. Ingram "continues to suffer from ongoing personal stressors," anxiety and depression, diarrhea, and various body pain including discomfort in his right posterior ribs, left anterior leg, bilateral hands and cervical spine. (Ex. 7.)
30. The panel opined that Mr. Ingram is not capable of performing all of his duties, specifically lifting and restraining clients. "It is also the panel's feeling that he is exceptionally stressed in this role, and anxiety may be overlying his ongoing feelings of disability." (Ex. 7.)
31. With respect to permanence the panel opined that Mr. Ingram "suffers from significant anxiety and depression as well as his physical limitations and that these are likely to be of a permanent nature." (Ex. 7.)
32. With respect to causation the panel opined, [T]his incapacity is not as the result of the injuries in July 2005. More likely, this is a case of chronic cervical discomfort in the setting of ongoing anxiety and depression." (Ex. 7.)
CONCLUSION AND ORDER
This case is remanded to the State Board of Retirement with instructions to return the case to the instant medical panel to address the aggravation theory of causation.
In order to prevail on his application for accidental disability retirement benefits, the Petitioner must prove that he is permanently unable to perform the essential duties of his job as the proximate result of a personal injury sustained or hazard undergone while in the performance of his duties as required under G.L. c. 32, s. 7(1).
The Petitioner bears the burden of proof to establish a causal nexus between an injury or hazard and his disability. Campbell v. CRAB, 17 Mass. App. Ct. 1018, 460 N.E.2d 213 (1984).
In order to meet his burden, the Petitioner must prove one of two hypotheses: that his disability was caused by a single or series or work-related events, or that his employment exposed him to an "identifiable condition … that is not common and necessary to all or a great man occupations" that resulted in disability through gradual deterioration. Blanchette v. CRAB, 20 Mass. App. Ct. 479, 481 N.E.2d 216, 220 (1985).
Aggravation of a pre-existing condition to the point of total and permanent disability satisfies the 'natural and proximate' requirement. Barrufaldi v. CRAB, 337 Mass. 495, 150 N.E.2d 269, 271 (1958).
The Petitioner advances the first hypothesis: that being assaulted by a client on July 11, 2005 aggravated his pre-existing cervical arthritis to the point of total and permanent disability. The panel failed to address this question and therefore this case must be remanded to the panel.
The question for the panel to answer is: Is it possible that the Petitioner's injury of July 11, 2005 aggravated his pre-existing cervical arthritis to the point of total and permanent disability?
The panel employed an erroneous standard when answering in the negative with respect to causation by failing to consider the aggravation theory of causation, and the Contributory Retirement Appeal Board is therefore not bound by the panel's negative response. Malden Retirement Board v. CRAB, 1 Mass. App. Ct. 420, 298 N.E.2d 902 (1973).
This case is remanded with the instructions enumerated above.
DIVISION OF ADMINISTRATIVE LAW APPEALS
Maria A. Imparato
DATED: February 26, 2010