COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Zina Kelsh,

Petitioner

v. Docket No. CR-07-159

Plymouth County Retirement System,

Respondent

Appearance for Petitioner:

Deborah G. Kohl, Esq.

191 Bedford Street
Fall River, MA 02720

Appearance for Respondent:

Michael Sacco, Esq.

285 College Highway
P.O. Box 479
Southampton, MA 01073-0479

Administrative Magistrate:

Sarah H. Luick, Esq.

DECISION


Pursuant to G. L. c. 32, § 16(4), the Petitioner, Zina Kelsh, is appealing the January 30, 2007 decision of the Respondent, Plymouth County Retirement System, denying her request for accidental disability retirement benefits. (Ex. 2) The appeal was timely filed. (Ex.1) A hearing was held March 13, 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 - 20) The parties entered into some stipulations of fact. ("A") The Petitioner testified. Both parties made closing arguments. One tape was used.

FINDINGS OF FACT

1. Zina Kelsh, d.o.b. 10/13/68, became a Wareham Police Officer on May 13, 1996. She
passed her entry physical without any limiting back or neck conditions. She was able to pass the Police Academy physical trainings and tests. She was able to pass firearm use tests. Officer Kelsh worked as a Patrol Officer alone in a cruiser and on foot. She worked the midnight to 8:00 AM shift. ("A". Exs. 3, 5 & 11. Testimony.)

2. The essential duties of a Patrol Officer require the ability: to employ physical restraints on suspects and to place persons under arrest; to break up fights; to provide first responder medical care at the scenes of emergencies which can involve bending, squatting and lifting persons; to sit in the cruiser; to walk and stand for long periods of time; to push or pull at least fifty pounds or more; and, to operate a cruiser "at a high rate of speed using emergency lights and siren." The essential duties include being "capable of immediate activation" to physically challenging activities of varying intensity. There is no permanent light duty job assignment. (Exs. 3, 5 & 7. Testimony.)

3. On April 3, 2005, Officer Kelsh was on duty alone in her cruiser. She stopped to
assist Sergeant Glen Gifford remove a fallen tree blocking a roadway. Another Officer was also assisting in this work. Sgt. Gifford was using a chainsaw and Officer Kelsh was pulling away branches and limbs as he did this. At one point, she had to pull hard on a large branch with vines intertwined around it making it hard to dislodge and move away. As she pulled hard on it, she experienced a pop in her lower right side of her back. She also felt sore as a result, but did not at this point feel severe pain. She continued helping to remove the branches from the roadway, but did not again engage in hard pulling. (Exs. 3, 5 & 6. Testimony.)

4. After moving the tree limbs, Officer Kelsh was called from this scene to respond to an emergency medical call at a nursing home. As she exited the cruiser, she experienced low back pain. This pain worsened when she began to bend over to strap in the nursing home resident to the stretcher. She was not able to continue this work. Upon returning to the Police Station, she reported this back pain and was told to go to the hospital emergency room for evaluation. (Exs. 3, 5 & 6. Testimony.)

5. Officer Kelsh filed police reports on the pain she experienced on April 3, 2005. Sgt.
Gifford wrote a report in which he corroborated Officer Kelsh's report of hurting herself by pulling hard on the tree limb. (Ex. 6. Testimony.)

6. At the Tobey Hospital Emergency Room, Officer Kelsh was assessed as having
suffered a muscle strain. She had sustained muscle strains in the past, but had not experienced this degree of pain from such strains before. Officer Kelsh came under the care of Police Department physician, Dr. Ajit Mirani. He examined her on April 5, 2005, and concluded she had a lumbar strain on the right side. He prescribed medication, ice for pain relief, physical therapy treatments, and the following restrictions on activities:
a) No bending and no twisting.
b) No pushing, pulling, lifting, or carrying more than five pounds.
c) Change positions from sit, stand, walking every 10 minutes.
d) No moving, transfer, or restraints.
e) No inmate contact.
(Exs. 12 &13. Testimony.)

7. Officer Kelsh stayed out of work. She was placed on leave without loss of pay under
G. L. c. 41, § 111F. (Exs. 3 & 5. Testimony.)

8. Officer Kelsh underwent diagnostic testing. Because she had post-injury headaches, a CT scan of the head was done on May 12, 2005. The results were normal. May 20, 2005 electrodiagnostic studies showed no "peripheral neuropathy or axonal denervation of the lumbosacral nerve roots." The testing suggested "possible discogenic etiology with chemical radiculitis." A June 4, 2005 lumbar spine MRI showed disc disease and mild degenerative changes at L3-4 and L4-5. (Exs. 15 & 16.)

9. Dr. Edward Jastram, III, a chiropractor, evaluated Officer Kelsh on June 15, 2005. He
concluded "that both of her acromioclavicular joints had suffered injury, as had her sacroiliac joints." He prescribed a course of treatment. (Ex. 17)

10. At a June 27, 2005 evaluation, Dr. Mirani opined Officer Kelsh had discogenic low
back pain. She was also complaining of "diffuse neck pain, as well as bilateral hip pain." She showed by examination, "[a] significant number or trigger points throughout her cervical lumbar and gluteus medias region," but with "[n]o focal neurologic deficits …. Her lumbosacral range of motion … [was] quite limited." Officer Kelsh had an epidural steroid injection that provided only temporary pain relief. By a September 26, 2005 evaluation, Dr. Mirani continued to make the same findings upon physical examination, and his diagnosis remained discogenic low back pain. (Exs. 12, 13 & 15.)

11. In July 2005, Officer Kelsh returned to perform light duty desk work. She was able to
avoid contact with prisoners, heavy lifting, and other physically challenging tasks. She was allowed to do this in hopes that she would improve to return to her full Patrol Officer duties. She stopped doing this work by August 25, 2006. She never returned to work thereafter. ("A". Ex. 5. Testimony.)

12. Officer Kelsh continued to have physical therapy treatments while she was performing the light duty work. (Ex. 19)

13. Officer Kelsh had another lumbar MRI on October 16, 2005, which showed:
Mild spondylosis.
At L4-5 there is a concentric disc bulge with a small central/left paracentral protrusion.
At L3-4 there is a concentric disc bulge with a small right foraminal protrusion.
(Ex. 16)
On this same date she also had a thoracic spine MRI which showed:
Mild spondylosis and mild disc disease …. No focal herniation.
(Ex. 16)
On October 19, 2005 she had a cervical spine MRI which showed:
Diffuse disc disease in the cervical spine with posterior disc protrusion at C3-C4, C4-C5, and C5-C6 flattening the ventral aspect of the thecal sac and effacing the majority of the CSF around the spinal cord. There is also a left paracentral disc osteophyte complex at C2-C3. There is however no evidence for cord compression or abnormal signal appreciated within the cervical spinal cord.
Moderate neural foraminal narrowing at C5-C6 secondary to uncovertebral joint hypertrophy.
(Ex. 16)
On this same date she had a brain MRI which was "unremarkable." On October 23, 2005 she had a pelvis MRI which was also "unremarkable." (Exs. 16 & 20.)

14. On December 15, 2005, Dr. Mirani ordered a functional capacity evaluation. (Ex. 13)

15. Officer Kelsh had the physical capacity evaluation on January 17, 2006. She was
assessed as able to perform "Medium Work," which includes: "Exerting 20 lbs. to 50 lbs. of force occasionally, and/or 10 lbs. force frequently, and/or greater than negligible up to 10 lbs. of force constantly to move objects." The following conclusion was reached:
The results of this evaluation indicate that Zina Kelsh is able
to work in a medium capacity for an 8 hr. day based on her
occasional lifting/carry. She declined to perform a sprint/run
and obstacle course due to increased lumbar pain. She was
unable to perform simulated restraint due to lumbar pain as
well. Appropriate physiological responses with client report
of increased pain when she requested to terminate occasional
lifting/carry at maximum weights. She reached sub max heart
rate … when attempting to perform simulated restraint and when
dragging 100 lbs. mannequin.
(Ex. 19)

16. At an August 2, 2006 evaluation, Dr. Michael V. DiTullio, Jr., a neurosurgeon, found
Officer Kelsh able to work only light duty work with limited bending and stooping, and with lifting only twenty pounds. (Ex. 18)

17. Officer Kelsh filed for accidental disability retirement benefits on August 21, 2006
based on the April 3, 2005 injury. Dr. Mirani supported her claim. He continued to diagnose discogenic low back pain. He found her back pain was worse when she flexed her back in the lumbar area, and he relied on the results of her functional capacity evaluation to find she had permanent work restrictions. He opined she could not do "lifting, carrying, pushing or pulling more than 50 pounds and … [must] avoid any restraining of inmates or physical contact with prisoners." He noted that she had not shown a "response to extensive treatment." He attributed her condition to the April 3, 2005 injury, and noted that she had no prior back conditions. ("A". Exs. 3 & 4.)

18. The Plymouth County Retirement System inquired of the Wareham Police
Department whether or not Officer Kelsh was in the performance of her police duties when she was injured on April 3, 2005. The Police Department responded that she was. (Ex. 8)

19. A Medical Panel was convened on January 2, 2007 with: Dr. Thomas P. Galvin, an
orthopedist; Dr. John McConville, an orthopedist; and, Dr. Lalit Savla, a neurologist. The Panel physicians answered their certificate unanimously in the negative as to the existence of a disability. (Ex. 10)

20. The Panel physicians had knowledge that Ms. Kelsh worked as a Patrol Officer, and that she could not permanently perform only light duty work. They were aware that she had been moving tree branches on April 3, 2005 when she experienced "acute pain in her lower back as she sought to wrench branches entwined in vines." They were aware of the initial diagnosis of a low back sprain, and that she stayed out from work for three months before returning to work in July 2005 "in a limited capacity carrying out only desk work and eliminating her prior occupational responsibilities as a patrol officer." They were aware that she stopped working in August 2006. The Panel physicians understood Officer Kelsh had "no serious prior medical problems." They had knowledge of her course of testing and treatment following the April 3, 2005 injury. They understood that she takes medication for pain relief, had an epidural steroid injection that did not provide lasting relief, and that Dr. DiTullio, a neurosurgeon, had not recommended "aggressive invasive treatment for her lower back complaints." They Panel had knowledge of her ongoing pain complaints. They had reports before them of Dr. Jastram, Dr. Ananta who did the electrodiagnostic studies, and Dr. Mirani. The Medical Panel gave a physical examination and diagnosed, a "chronic, mild, intermittent lumbosacral muscular ligamentous strain." Although the Panel physicians did not discuss it, they had before them the results of the functional capacity evaluation. (Exs. 9 & 10. Testimony.)

21. The Medical Panel concluded that Officer Kelsh "did sustain an injury while in the
performance of her job duties, and has recovered sufficiently to the point where a disability can no longer be defined." The Panel physicians stated they found no incapacity from carrying out the essential duties of Officer Kelsh's job based on her job description. (Ex. 10)

22. The Plymouth County Retirement System voted to deny Ms. Kelsh's application for
accidental disability retirement benefits due to the Medical Panel finding of no disability. This decision was issued on January 30, 2007, and Officer Kelsh filed a timely appeal. ("A". Exs. 1 & 2.)

Conclusion

The Medical Panel's role in an accidental disability retirement claim is to address the
medical issues that are beyond the common knowledge and understanding of lay persons. Malden Retirement Board v. Contributory Retirement Appeal Board (CRAB), 1 Mass. 420 (1973) Determining medically whether Officer Kelsh recovered from her April 3, 2005 injury to perform the essential duties of a Wareham Patrol Officer again is such an issue. G. L. c. 32, § 7(1) sets forth the standard for determining the existence of a disability as an inability to carry out on a sustained basis the essential duties of the member's job. An ability to perform some of the duties is insufficient. Brookline Retirement Board v. CRAB, 33 Mass.App.Ct. 478 (1992) That is of particular significance here because there is no permanent light duty police officer job assignment for Wareham Police Officers.

In addressing the existence of a disability, the Medical Panel physicians must provide a report that adequately explains their negative certificate report. Kelley v. CRAB, 341 Mass. 611 (1961) In determining their certificate responses the Panel physicians have to consider all pertinent medical and non-medical information. Malden, supra. In determining whether the Medical Panel conducted a proper evaluation, the opinions of treating and other evaluating physicians can help to show the Panel physicians have not considered all pertinent medical facts, but such opinions cannot take the place of the Medical Panel findings. Wakefield Retirement Board v. CRAB, 352 Mass. 499 (1967)

A fair reading of the Medical Panel report shows the Panel physicians considered the
pertinent medical and non-medical information. Even though the Panel report does not specifically address the results of the January 17, 2006 functional capacity evaluation, the Panel physicians were provided with that document. (See, Exs. 9 & 19.) That testing showed to the test evaluators that Officer Kelsh could not undertake more than moderate work duties, which would not include the sometimes heavy physical activities that a Patrol Officer has to be able to undertake at all times. Such activities encompass apprehending suspects, restraining persons being placed under arrest, and doing heavy lifting and engaging in other sudden exertion in response to particular emergencies. But, the Medical Panel examined Officer Kelsh about a year after the functional capacity evaluation and concluded that she had recovered from the back strain she suffered on April 3, 2005. They found no residual physical limitations to prevent a return to full police duties. In finding no disability the Panel physicians make reference to the job description information listing the essential duties of a police officer. This job description information sufficiently conveys that a police officer has to engage in significant physical exertions, such as the kind she was undertaking on April 3, 2005. The Panel physicians simply find no continuing disability.

The Panel physicians do not agree with the findings of Dr. Mirani. His report in
support of Officer Kelsh's application is grounded in his assessment of the medical evaluations, test results, and her failure to improve despite various treatments. He does not point to any particular MRI or other test result to demonstrate why she continues to be disabled from full police work. The Panel physicians were also aware of Officer Kelsh's ongoing complaints of pain that she contends keep her from being able to carry out her full police duties. Nevertheless, the Panel physicians make clear they cannot find sufficient support for an ongoing disability.

Because Ms. Kelsh would be returning to perform work as a Police Officer, risk of re-
injury should be given consideration. In the case of Joshua Filipek v. Bristol County Retirement Board, CR-03-672 (DALA, 3/29/04) (CRAB, 12/23/04), CRAB remanded an accidental disability retirement claim to the same Medical Panel to consider a risk of re-injury if Mr. Filipek returned to work. CRAB explained: "Even if a member is physically capable of performing all of the essential duties of his or her position, he or she may be disqualified if a return to work would pose an unreasonable risk of serious harm to the member or third parties." CRAB further explained that the risk of re-injury has to reasonably be expected to involve a substantial harm. The standard contemplates that a less than serious harm is an acceptable risk. The standard also contemplates that re-injury or harm to third parties, is reasonably likely to occur. I conclude that applying the risk of re-injury standard to this Medical Panel's evaluation, shows the Panel physicians found there is no likelihood of a risk of serious re-injury or harm to others if Officer Kelsh returns to her full duties. This is because the Medical Panel adequately explained that Officer Kelsh recovered sufficiently from her injury of April 3, 2005 to carry out on a sustained basis all her regular required essential police duties.
For these reasons, the decision of the Plymouth County Retirement System is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Sarah H. Luick, Esq.
Administrative Magistrate


DATED: June 12, 2008


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