COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Aurelio Morales,

Petitioner

v. Docket No. CR-06-649

Holyoke Retirement Board &Public Employee Retirement Administration Commission (PERAC),

Respondents

Appearance for Petitioner:

Nancy D. O'Connor, Esq.

302 High Street, 4th Floor
Holyoke, MA 01040

Appearance for Respondent

Thomas F. Gibson, Esq.

Holyoke Retirement Board: 2400 Massachusetts Avenue
Cambridge, MA 02140

Address for Respondent

Judith A. Corrigan, Esq.

PERAC
Five Middlesex Avenue, Suite 304
Somerville, MA 02145

Administrative Magistrate:

Sarah H. Luick, Esq.

DECISION

Pursuant to G.L.c.32, §16(4), the Petitioner, Aurelio Morales, is appealing the September 16, 2006 decision of the Respondent, Holyoke Retirement Board, denying his request for accidental disability benefits. (Ex. 2) The appeal was timely filed. (Ex. 1) A hearing was held September 26, 2007, 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 - 17) One tape was used. The parties entered into some stipulations of fact. ("A") PERAC did not appear for the hearing but relied upon the submission of the Respondent, Holyoke Retirement Board. ("B") The Petitioner testified. Translating for him was Cynthia Maldonado, Petitioner's stepdaughter, as well as Melissa Rodrieguez, an employee of the Holyoke Retirement Board, for cross examination of Petitioner. The Petitioner also presented the testimony of his wife, Idalia Morales who is also a co-worker with him. The Respondent Holyoke Retirement Board presented the testimony of Beverly Bolduc, Petitioner's supervisor at work. Arguments were made on the record at the close of the hearing.

The Respondent Holyoke Retirement Board had awarded accidental disability benefits after Petitioner received a positive Medical Panel and had other medical opinion evidence in support of his claim. PERAC remanded the case based on insufficient proof that Mr. Morales had suffered a G.L.c.32, §7(1) compensable personal injury. Thereafter, the Holyoke Retirement Board denied the claim, agreeing with PERAC regarding no compensable personal injury. Petitioner appealed this decision, and PERAC was joined as a party to this proceeding. ("B")

FINDINGS OF FACT

1. Aurelio Morales, d.o.b. 11/23/56, worked as a Cafeteria Helper from 1993 for the Holyoke Public Schools. ("A". Exs. 3, 5, 6 & 7. Testimony)

2. The Cafeteria Helper job posting stated about the work the following:
Routine manual work in assisting in the preparation and serving of meals … under the immediate supervision of an Institution Cook … routine chores in preparing and serving food and cleaning duties for which only a minimum of judgment is needed … physical effort demanded in walking and standing, lifting heavy containers and trays, while performing duties under conditions of some discomfort
due to heat … Slices meat, peels and cleans vegetables, and assists in preparing other foods. Sets up tables and trays; assists in serving food. Operates and cleans dishwasher, and cleans cooking utensils and counters. Sweeps and mops floor. Assumes duties of cook when necessary … No special knowledge, skills or abilities required. Good clean health habits. (Ex. 6)

Mr. Morales last worked in this job at the Kelly Marcella School in Holyoke. (Exs. 3 & 5. Testimony) He performed the following work there:
Hand dishwashing, loading and unloading dishwasher trays. Peeling potatoes, carrots, and other foods. Carrying boxes of cartons containing 48 individual sized milk containers. Carrying and moving large pots of soup, stews, and other foods. Sweeping and mopping floors. Washing counters and refrigerators. Restocking foods including frozen foods, milk, juices into refrigerators. Stocking backroom with large heavy containers of soup, rice, sugar, flour, etc. Clean refrigerators and freezer. Clean cooking area. (Ex. 3)

Mr. Morales's employer expected him to be capable of "lifting up to 30 lbs., bending, twisting, reaching, standing … daily." (Ex. 5) Mr. Morales got one fifty minute break during his work day. (Ex. 3)

3. Mr. Morales would come to work around 7:00 AM and leave work around 1:30 PM. The first lunch at the school was at noon and the second lunch was around 12:30 PM. There would be about fifteen minutes between the two lunch sessions. During that time, Mr. Morales would clean counters, prepare the next trays, and clean the cafeteria tables. He would do the same clean up chores after the second lunch session and before ending his work day. (Testimony)

4. When Mr. Morales had to use the bathroom at work, out of respect for his women co-workers, he would not use the bathroom off the kitchen area they used, but would use the men's room located about thirty feet outside the cafeteria. (Testimony)

5. Mr. Morales wore a uniform for work of a blue t-shirt with the school logo on it, black pants, sneakers, a hat, and an apron. (Testimony)

6. Mr. Morales was at work on May 30, 2002 doing clean up work after the second lunch session when he asked permission of his supervisor, Barbara Bolduc, Head Cook at the Kelly School, to leave his chores to use the men's room. She agreed, and he left to use the men's room. (Exs. 10 & 17A. Testimony)

7. The door of the men's room opens up into the hallway to enter. This is what Mr. Morales did. He had used this men's room routinely. The door was not broken. Once inside, he removed his apron, hung it on the door, and used the bathroom. Then, he prepared to exit the bathroom and return to his cleaning chores. He knew all he had to do was push the door forward into the hallway to exit. He put his apron partly on as he began to push open the door to exit the bathroom, while at the same time beginning to tie his apron as the door began to close automatically. As the door came back at him, he tried to hold it open as he was now in a somewhat awkward position. In this process of the door automatically closing, he jammed his left thumb as the door closed on it. The thumb immediately began to hurt. (Testimony)

8. Mr. Morales returned to the cafeteria to resume his work, but told his wife who was a co-worker in the cafeteria, that he had hurt his thumb. He next went to Ms. Bolduc, showed her his thumb explaining he had hurt it. She saw that the "thumb was red and swollen." She gave him ice for it, and she told him to get tape from her office and tape it up. He did this and then resumed work to the extent there was some time left before 1:30 PM. (Exs. 3, 5, 9 & 10. Testimony)

9. The next day, Mr. Morales and his wife sought medical attention for the thumb condition. He was not able to bend his thumb at the time. X-rays taken were negative, but he showed "chronic AVN involving the scaphoid bone." He was referred to a specialist for further evaluation. He was assessed with a strain and hyperextension injury. He was instructed to use ice and heat, take pain medication as needed, and to use an ace wrap. He was eventually given a splint. (Exs. 17A & 17B. Testimony)

10. The thumb condition at an evaluation on June 7, 2002 was assessed as a left thumb sprain and rule out a tendon rupture. Mr. Morales was referred to Dr. Catherine Spath. On June 13, 2002, under the care of Dr. Spath, Mr. Morales underwent surgery for a ruptured flexor pollicis longus tendon of the left thumb. Following surgery he had a cast and sling. Mr. Morales experienced much pain following the surgery. He experienced pain relief upon the dressings being removed and he was re-dressed and re-splinted. He began physical therapy treatments thereafter. He was taking medication for pain relief. (Ex. 17A & 17C)

11. Mr. Morales did not return to work. He filed a notice of injury form regarding the thumb injury, and received workers compensation. (Exs. 3, 5, 9 & 17C. Testimony)

12. At the time of the thumb surgery, Mr. Morales was found by Dr. Spath to have a "longstanding scaphoid nonunion with advanced collapse of the wrist, subsequent erosion of the volar capsule at the scaphoid and along the scaphoid interval with disruption of the FPL over a large segment of it." This condition involved Mr. Morales having to undergo subsequent procedures such as one that occurred on July 19, 2002. (Ex. 17A & 17C)

13. Mr. Morales had nerve conduction studies and EMG testing done on October 16, 2002 in connection with ongoing assessment of his left wrist and hand condition. He also continued to undergo physical therapy treatments. On January 21, 2003, he underwent another operation of a radiocapitate wrist fusion with local distal radius bone graft with Dr. Spath. On June 6, 2003 he had a CT scan of his left wrist. He had nerve conduction studies and EMG testing on September 7, 2004 "suggesting a distal ulnar nerve entrapment." On December 8, 2004, he had a left carpel tunnel release operation with Dr. Spath. He had physical therapy treatments thereafter. (Ex. 17A & 7C)

14. By September 5, 2003, Dr. Spath opined that Mr. Morales was "unlikely … to return to anything close to his level of activity … I would consider him disabled." Throughout the time after the May 30, 2002 injury, Mr. Morales has been prescribed pain medications. (Ex. 17C)

15. Mr. Morales was seen by Dr. Steven Wenner for evaluations. At a January 26, 2004 evaluation, Dr. Wenner opined that Mr. Morales would be helped by a work hardening program with a goal to be able to return to work. He was assessed for appropriate therapies and had more physical therapy thereafter. (Exs. 15 & 17D)

16. As a result of a failure to improve, Mr. Morales was seen by a psychiatrist, Dr. Bruce I. Goderez. In a May 2, 2005 opinion letter, Dr. Goderez opined that Mr. Morales had a, Major Depressive Disorder which can be understood as secondary to his injured hand, chronic pain, and resulting inability to work … unable to get into a mental health clinic, and remains untreated for his depression … is struggling with sleep disturbance, subjective depression, and severe irritability. (Ex. 16 & 17D)

17. Mr. Morales filed for accidental disability retirement in January 2005 based on the May 30, 2002 thumb injury. (Ex. 3) Dr. Spath supported his claim. She noted his "ruptured … flexor pollicis ongus tendon … as a result of the injury." (Ex. 4) She further noted that, despite a solid fusion of his wrist, repair of the tendon,
carpal tunnel release, what he is having problems with is ongoing discomfort in the hand and the wrist primarily with pain … has weakness … no wrist range of motion … the patient is status post repair of the flexor pollicis longus tendon… has done manual labor all his life and the situation with the left arm is that it will be difficult for him to use it as a helper hand … The injury at work was the inciting event that has unfortunately left him in this particular predicament …. (Ex. 4)

18. A Medical Panel was convened on December 7, 2005 with Dr. John Groves and Dr. George Hazel, both orthopedists, and with Dr. Arthur Safran, a neurologist. The Panel answered the certificate unanimously in the affirmative. (Ex. 12)

19. The Panel physicians were aware of Mr. Morales's job as a Cafeteria Helper within the Holyoke School System, and that he suffered an injury to his hand and thumb when a door struck them. They wrote in their report that the incident occurred on May 31, 2002, and that Mr. Morales underwent surgery for a ruptured flexor tendon of the thumb on June 13, 2002. The Panel understood Mr. Morales had gone through six surgeries. The Panel found Mr. Morales to be a "poor historian." The Panel had knowledge of his care with Dr. Spath, and that he still treats with her. They understood he may have had prior wrist injuries. The Panel addressed Mr. Morales's current complaints and learned he was taking pain medication for the left hand condition. They understood he was being treated for depression for the last two years. The Panel gave a physical examination. The Panel were also able to review the various tests, x-rays, and CT scans he has had. They had records to review from treating physicians along with his physical therapy treatment notes. They reviewed his job description. (Ex. 11) The Panel physicians diagnosed:

  1. Ruptured flexor pollicis longus tendon of the left hand
    status post repair.
  2. Status post fusion of the left wrist for underlying arthritis.
  3. Mild arthrofibrosis of fingers of left hand.
  4. Diminished sensation status post carpal tunnel surgery in
    the radial three fingers. (Ex. 12)

The Panel physicians concluded that the injury at work "aggravated the underlying arthritis for which surgery became necessary in the form of wrist fusion and also in the form of carpal tunnel release … no further improvement is expected … clearly unable to carry out the duties … in his job description." (Ex. 12)

20. The Holyoke Retirement Board approved Mr. Morales's application, and forwarded their award onto PERAC for its review. In response, PERAC remanded the claim to the Board by letter of June 16, 2006. PERAC did not find Mr. Morales was injured while in the performance of his duties on May 30, 2002. PERAC found leaving the men's room when his thumb became jammed was not while Mr. Morales was engaged in any "work-related business … in the bathroom for a personal reason." No evidence was found by PERAC to show Mr. Morales was in the bathroom performing some employment obligation as is required to be shown pursuant to G.L.c.32,§7(1).
(Ex. 14)

21. The Holyoke Retirement Board next voted on September 14, 2006 to deny Mr. Morales's application, and he filed a timely appeal. (Exs. 1 & 2)

Conclusion

Merits

I conclude that the Medical Panel evaluation was properly done with application of the correct standards of evaluation, and that the Panel physicians had before them all the pertinent factual information which they adequately considered in answering their certificate in the affirmative. Malden Retirement Board v. CRAB, 1 Mass.App.Ct. 420 (1973) I also conclude there is sufficient proof of ultimate causation, including sufficiently supportive medical opinion evidence, that the most significant reason why Mr. Morales is totally and permanently disabled from performing the essential duties of a Cafeteria Helper is the thumb injury of May 30, 2002. Campbell v. CRAB, 17 Mass.App.Ct. 1018 (1984)

Compensable Personal Injury

Mr. Morales cannot prevail in his appeal because the May 30, 2002 thumb injury was not a personal injury within the meaning of G.L.c.32, §7(1).

As a threshold matter, what happened to Mr. Morales on May 30, 2002 when his left thumb became stuck and was struck by the door, must be due to some job performance connected activity Mr. Morales was engaged in at the time. It may be enough for receipt of workers compensation to have had this injury occur while Mr. Morales was at work, but G.L.c.32, §7(1) involves a higher standard to satisfy of not just occurring at work but occurring while in the performance of employer obligated duties. On the facts of this case, his claim must fail as he was not in the performance of his duties when he suffered the injury. He was in the act of putting his apron back on and then began the exit out of the bathroom to get back to work in the cafeteria to finish the final clean up of his work day. He had been in the bathroom for his personal needs and not because of some employer obligated duty such as to clean the bathroom. He was not leaving the bathroom to return to the cafeteria due to some sudden emergency situation where he was called to come quickly. He had simply used the bathroom and suffered an accident from the closing of the door to the bathroom. No evidence shows some inherently dangerous bathroom door condition he had to maneuver around.

This determination reflects the current state of case law. Namvar v. Contributory Retirement Appeal Board (CRAB), 422 Mass. 1004 (1996) explained that there was no compensable personal injury when a college professor fell after leaving the cafeteria where she had lunch to get to her office to start having office hours with students. She was found not in the midst of performing an employment obligated duty. In Descant v. CRAB, Hampshire County Superior Court Civil Action No. 98-0228 (Page, J.) (5/10/99), a Teachers Aide fell upon entering the school building to start her workday. She could have been called to do a work task as soon as she entered the building, but she fell before starting any work task. Her fall was found not to be a compensable personal injury. In contrast, cases where the employee was still carrying out some routine job duty in a setting where otherwise the employee's work would have ended, has been found to be a compensable personal injury. In Lyons v. CRAB, State Board of Retirement & PERAC, Suffolk Superior Court Civil Action No. 97-4712-H (Von Gestel, J.) (4/28/99) no compensable injury was found when the clerk in the photo section of the Registry of Motor Vehicles left her post to use the bathroom. She fell on a wet floor as she left the bathroom. In contrast, in Sennett v. State Board of Retirement, CR-04-251 (DALA, 6/9/05) (No CRAB Decision), a secretary was following her daily work routine of getting the office mail placed into the mailbox at the close of her workday. The mailbox was on the street outside the work building. She fell on the way to that mailbox. Her injury was compensable.

Even when the employee is taking a break that is an employment right, the injury need not be found to be compensable. In Blaisdell v. Middlesex County Retirement Board & CRAB, Suffolk Superior Court Civil Action 95-2404-F (Barrett, J.) (5/31/96), a worker taking a mandated and paid coffee break through the collective bargaining agreement, fell on her way to take it. She was not found to have sustained a compensable fall. The Court stated: "The gratification of one's desire for a cup of coffee, even though consumed while "on the clock," cannot be viewed as work performance."

A different outcome occurs when the employee is hurt while in the midst of performing a job duty, as long as the incident shows a true accident occurred or a hazardous work condition. The employee is faced with a situation that involves more than a mere ordinary life activity such as bending down or walking or turning. Some other factor has to be involved. In Greece v. Worcester Retirement Board, Worcester Superior Court Civil Action No. 93-1738-A (Toomey, J.) (11/25/94), a secretary working in a crowded work space turned quickly to answer a telephone, and in the process banged her elbow area of her arm against a file cabinet, severely injuring her arm. This was found to be a compensable work accident. In Sulikowski v. Mass. Turnpike Authority Employees Retirement Board, CR-04-506 (DALA, 12/12/05) (No CRAB Decision), a toll taker left his booth to use the bathroom. To reach the bathroom, he had to cross an icy area and fell. The fall was a compensable injury.

These cases support the determination made by the Holyoke Retirement Board and PERAC that Mr. Morales was not in the midst of performing some regular job duty at the time he hurt his thumb, although I do find that he was returning to resume work in the cafeteria. I do not find he had finished his workday at the time. If so, there would have been no reason for him to put his apron back on. He did not face some hazardous condition using the bathroom.

Because there is no compensable G.L.c.32, §7(1) personal injury, the decision of the Respondent Board is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Sarah H. Luick, Esq.
Administrative Magistrate

DATED: February 5, 2008


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