COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Elizabeth Mack

Petitioner

v. Docket No. CR-07-346

State Board of Retirement,

Respondent


Appearance for Petitioner:

Deborah G. Kohl, Esq.

191 Bedford Street
Fall River, MA 02720

Appearance for Respondent:

Erin C. Nally, Esq.

State Board of Retirement
One Ashburton Place, 12th floor
Boston, MA 02108

Administrative Magistrate:

Maria A. Imparato, Esq.


DECISION

Elizabeth Mack filed a timely appeal under G. L. c. 32, s. 16 (4) of the April 26, 2007 decision of the State Board of Retirement to deny her request for accidental disability retirement benefits. (Exs. 1, 2)


I held a hearing on May 21, 2008 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA.


I admitted documents into evidence. (Exs. 1 - 17) 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. Elizabeth Mack, d.o.b. 9/23/1955, worked as a Correction Officer I
("CO I") for the Department of Correction ("DOC") from September 10, 1991
to March 14, 2001 when she left work because she felt she was being sexually
harassed. On July 23, 2003, she was discharged from the DOC for
abandonment of her position. (Testimony, Exs. 3, 5)


2. Ms. Mack's duties as a CO I included maintaining custodial care and control of inmates by escorting or transporting them under restraints; patrolling facilities; making periodic rounds, head counts and security checks of buildings, grounds and inmate quarters; monitoring inmates' movements and whereabouts; and guarding and directing inmates during work assignments. (Ex. 8)


3. On October 23, 1993, Ms. Mack tripped on the steps of the podium inside the roll call room at MCI Shirley and twisted her back. She filed a notice of injury, and remained out of work, collecting worker's compensation benefits, until February 5, 1995. (Exs. 5, 9, 17)


4. Ms. Mack consulted her primary care physician, Lisa Rembetsy-Brown, M.D., on October 26, 1993, reporting that when she slipped, she heard a cracking noise in her left lateral hip area. Dr. Rembetsy-Brown noted her impression of a low back strain/spasm. She prescribed Lodine, Robaxin, and bed rest, and advised Ms. Mack to stay out of work until November 1, 1993. (Ex. 16, 10/26/1993)


5. Electromyography in March 1994 revealed a normal exam with no evidence of lumbosacral radiculopathy. An MRI of the lumbosacral spine showed minimal bulging with a very small annular tear at the L3-4 disc, but was otherwise within normal limits. (Ex. 16, 3/10/1994)


6. Wayne Dillard, D.O., cleared Ms. Mack to return to light duty work on April 18, 1994. She was to work no more than 4 hours per day, with no lifting more than 10 pounds and no prolonged walking, bending, twisting or stair climbing. Ms. Mack did not return to work on April 18, 1994. (Ex. 16, 4/11/1994)


7. On September 1, 1994, Ms. Mack sought a second opinion from Gabriel Abella, M.D., a physiatrist from the UMass Medical Center Orthopedic Clinic. Dr. Abella noted Ms. Mack's complaint of left lower back pain extending down to her left knee area, which was exacerbated by prolonged walking and standing, and by getting in and out of bed. Dr. Abella noted his impression of myofascial pain. "The patient shows no evidence of neurologic compromise or radiculopathy. She shows evidence of a very tender area just at the left lateral muscular insertion spinous process. This may represent muscle spasm or tendinitis." Dr. Abella gave Ms. Mack a steroid trigger point injection. (Ex. 16, 9/1/1994)


8. At a follow-up visit on September 15, 1994, Dr. Abella noted that Ms. Mack had not experienced any relief from the injection. He noted his impression of chronic pain with acute exacerbation of lumbar paraspinal spasms, and depression and anxiety. He prescribed a trial of a TENS unit, and prescribed Doxepin for depression. (Ex. 16, 9/15/1994)


9. Ms. Mack received physical therapy at N.W.C. Physical Therapy in Leominster. The Initial Plan of Care formulated on September 20, 1994 noted that Ms. Mack's activities of daily living were limited by pain, and that she could not sit for more than 5 minutes, stand for more than 10 minutes, or walk more than ¼ mile. It was noted that the cortisone injection had exacerbated her pain. The physical therapy plan was to decrease Ms. Mack's pain, increase her range of motion, and get her onto a home exercise program within three weeks. (Ex.16, 9/20/1994)


10. At a follow-up visit on October 7, 1994, Dr. Rembetsy-Brown noted that Ms, Mack had increased pain after the trigger point injection. She diagnosed chronic low back pain with acute spasm over the left lumbar area and prescribed Paxil, Valium and Zostex cream. (Ex. 16, 10/7/1994)


11. On October 21, 1994, Dr. Rembetsy-Brown noted that Ms. Mack was "willing to return to work on light duty without any inmate contact or excessive standing, sitting, bending, twisting. She also wants to restart physical therapy." (Ex. 16, 10/21/1994)


12. By letter of October 24, 1994, Dr. Rembetsy-Brown indicated that Ms. Mack could return to work full time on October 31, 1994, with no kneeling, stair climbing, bending, twisting, prolonged sitting or standing, stooping, prolonged walking or lifting more than ten pounds. Ms. Mack did not return to work on October 31, 1994. (Ex. 16, 10/24/1994)


13. On October 27, 1994, N.W.C. Physical Therapy issued a Re-evaluation Plan of Care, opining that the source of Ms. Mack's pain was a slight L3-4 disc bulge and left lumbar paraspinal guarding. The plan was to return Ms. Mack to modified duty work in three to four weeks and to full duty work in six to eight weeks. (Ex. 16, 10/27/1994)


14. On November 14, 1994, Alexander Wright, M.D., evaluated Ms. Mack. He opined that she was not a surgical candidate because her problem was a degenerative disk. He recommended an aggressive rehab program, to be undertaken while returning to light duty work. (Ex. 16, 11/15/1994)


15. Ms. Mack returned to modified work on February 6, 2005. (Ex. 5)


16. On July 25, 1995, Dr. Rembetsy-Brown issued a Physician's Report indicating that Ms. Mack needed to continue on modified duty due to chronic low back pain and an L3-4 annular tear. (Ex. 16, 7/25/1995)


17. Ms. Mack resumed her worker's compensation claim and was out of work from August 21 through October 22, 1995. (Exs. 5, 10)


18. On August 22, 1995, Dr. Rembetsy-Brown noted that Ms. Mack had increased back pain, with no specific injury. She recommended ice and heat to the back, and told Ms. Mack to stay out of work until September 1, 1995. Ms. Mack did not return to work on September 1, 1995. (Ex. 16, 8/22/1995)


19. At a follow-up visit on September 14, 1995, Dr. Rembetsy-Brown noted that Ms. Mack's back pain was improving. She opined that Ms. Mack could return to modified duty on September 18, 1995. Ms. Mack did not return to work on September 18, 1995. (Ex. 16, 9/14/1995)


20. Ms. Mack returned to work on October 23, 1995 and worked until March 11, 1996 when she resumed her worker's compensation claim. (Ex. 5)


21. On April 3, 1996, Ms. Mack began physical therapy at the Braintree Hospital Rehabilitation Network. At her initial evaluation, Ms. Mack reported that her work required her to climb a tower with 50 stairs, and that she was unable to do so. She remained in physical therapy until sometime in May 1996. She returned to work on May 22, 1996. (Exs. 5, 17)


22. On July 16, 1997, Ms. Mack consulted Kathleen Sweeney, M.D., with a complaint of back pain. Dr. Sweeney diagnosed low back pain with right paraspinal muscle spasm. She recommended re-starting physical therapy and prescribed Motrin and Flexeril. (Ex. 16, 7/16/1997)


23. Ms. Mack resumed her worker's compensation claim from October 24 to November 1, 1997. (Ex. 5)


24. On October 24, 1997 Dr Sweeney noted that Ms. Mack awoke with right-sided low back pain that radiated to the right buttock, with no precipitating trauma. She diagnosed degenerative joint disease and right paralumbar muscle spasm, prescribed Naprosyn and Valium, and referred Ms. Mack to physical therapy. Ms. Mack returned to work on November 2, 1997. (Ex. 16, 10/24/1997)


25. Ms. Mack worked until April 1999 when she resumed her worker's compensation claim from April 12 to May 22, 1999. On April 14, 1999, Kami Phillips, M.D., ordered physical therapy for low back strain with radiculopathy and a degenerative disc at L3-4. (Ex. 16, 4/14/1999)


26. On or about July 8, 1999, Ms. Mack was working at MCI Shirley doing outside perimeter work in a vehicle when she drove head first into a ditch. There is no notice of injury on file with respect to this incident, although Ms. Mack believes that she filed one. (Testimony)


27. On July 9, 1999, Ms. Mack reported an acute onset of low back pain with radiation while she was showering. She resumed her worker's compensation claim from July 10, 1999 to October 4, 1999. (Exs. 5, 16, 7/9/1999)


28. An MRI on July 18, 1999 showed a small disc bulge with a small left paracentral disc protrusion at L3-4 with some bony hypertrophic spurring at that level. (Ex. 16, 7/18/1999)


29. By letter of September 27, 1999, Dr. Rembetsy-Brown opined that Ms. Mack could return to full duty work, without restrictions. Ms. Mack returned to work on October 5, 1999. (Exs. 5, 14)


30. Ms. Mack worked on full duty from October 5, 1999 to March 14, 2001 when she left work because she felt she was being sexually harassed. She filed a notice of injury, and began collecting worker's compensation benefits based on the sexual harassment claim on March 14, 2001. (Exs. 5, 11, Testimony)


31. Ms. Mack continued to have flare-ups of back pain after she stopped working. On July 29, 2005, while standing, Ms. Mack developed back spasm which brought her to Dr. Rembetsy-Brown. (Ex. 16, 8/4/05)


32. On October 26, 2005, Ms. Mack was referred by Dr. Rembetsy-Brown to Dr. Dillard for evaluation. He suggested an MRI to see if there had been progression of Ms. Mack's disc herniation since the MRI of 1999. (Ex. 16, 10/26/05)


33. An MRI on January 6, 2006 revealed a small amount of disc and bony degeneration at multiple levels, with no significant disc herniation or spinal stenosis. (Ex. 16, 1/6/06)


34. On May 9, 2006, George Lewinnek, M.D., an orthopedic surgeon, evaluated Ms. Mack for worker's compensation purposes. Dr. Lewinnek diagnosed
L3-4 degenerative disc disease and opined, "There is no disability associated with the low back causally related to her work exposure." (Ex. 15)


35. Ms. Mack filed an application for accidental disability retirement benefits on October 30, 2006, citing low back pain as a result of the October 23, 1993 injury that was aggravated in "1996 motor vehicle accident while performing perimeter security on premises." (Ex. 3)


36. Dr. Dillard filed a statement in support of the application, answering all certificate questions in the affirmative. (Ex. 4)


37. A regional medical panel composed of Drs. Richard Warnock (Chairman), John McConville and Judy Fine-Edelstein convened on February 7, 2007 to evaluate Ms. Mack. Drs. Warnock and McConville are orthopedic surgeons. Dr. Fine-Edelstein is a neurologist. (Ex. 6)


38. The panel answered unanimously in the negative with respect to the existence of a disability. (Ex. 6)


39. The panel reviewed medical records and a job description, took a history and performed a physical examination. The panel diagnosed low back strain.
(Ex. 6)


40. Physical examination revealed level shoulders and pelvis, no pain with axial loading, tenderness to light touch over the left lower lumbar area, but not the right. Forward flexion was to 85 degrees, extension to 30 degrees, lateral bends to 30 degrees, with full and unrestricted rotation. Straight leg raising caused mild tightness in the left back at 90 degrees, and was negative to 90 degrees on the right. Deep tendon reflexes were symmetrical at the knees and ankles. (Ex. 6)


41. The panel concluded: "It is the medical opinion of this panel that Ms. Mack is not currently disabled from the essential duties of her job as a corrections officer. She has had intermittent flare-ups of back complaints and had returned to work following the injury of 1996 without specific restrictions or limitations. She worked approximately 6 years since that time and her MRIs on two separate occasions were very benign. Therefore, we do not find any substantial reason for any disability with the essential duties of her job as a corrections officer." (Ex. 6)


CONCLUSION AND ORDER


The decision of the State Board of Retirement to deny the application of Elizabeth Mack for accidental disability retirement benefits is affirmed.


The application is denied for two reasons: the Petitioner has not demonstrated that she was unable to perform the essential duties of her job because of low back pain on her last day of work in March 2001; and the medical panel did not employ an erroneous standard when it answered in the negative with respect to the existence of a disability.


Last day of work


Disability is the inability to perform the essential duties of one's job.


The Petitioner bears the burden of proving that she was disabled by low back pain on her last day of work. The Petitioner left work on March 14, 2001 because she felt she was being sexually harassed. She did not stop working because of back pain. She had performed the full duties of her job from October 5, 1999 until her last day of work.
The Petitioner has therefore failed to prove that she stopped working because she was unable to perform the essential duties of her job on account of back pain.


In the case of Vest v. CRAB, 41 Mass. App. Ct. 191, 668 N.E.2d 1356 (1996), the Appeals Court affirmed the denial of accidental disability retirement benefits to a police officer who became disabled by hypertension four years after he had stopped working for non-medical reasons. The Appeals Court held that in view of the fact that the Petitioner had performed the duties of his job until his last day of work, despite having non-disabling hypertension, he could not "claim accidental disability retirement status on the basis of a subsequently matured disability." Id., 668 N.E.2d at 1358.
The facts in the instant case are analogous to those in Vest. Despite the fact that the Petitioner suffered repeated flares of disabling low back pain beginning in 1993, she was able to perform the essential duties of her job from October 5, 1999 to March 14, 2001 when she left work for non-medical reasons, that is, because of sexual harassment. She has therefore failed to prove that she was disabled by back pain on her last day of work.


No panel error


The medical panel answered in the negative with respect to the existence of a disability. There is no basis on which to conclude that the panel employed an erroneous standard to reach its conclusion. The panel reviewed a job description and medical records, took a history and performed a physical examination. The panel then considered the issue of disability in light of the Petitioner's ability to perform the essential duties of her job. This is a correct standard.


In the absence of use by the panel of an erroneous standard to reach its conclusion, both CRAB and the Magistrate are bound by the panel's negative response. Malden Retirement Board v. CRAB, 1 Mass. App. Ct. 420, 298 N.E.2d 902 (1973).
Second claimed injury


There is some confusion in the record with respect to whether the Petitioner suffered a second work-related back injury in 1996 or 1999 when she drove head first into a ditch while patrolling the perimeter of MCI Shirley. The Petitioner's application indicates that the injury occurred in 1996, and she apparently told the panel that the injury occurred in 1996. At hearing, she testified that the injury occurred in 1999. There is no notice of injury in the record, and there is no mention of the incident in the medical record.
I relied on the Petitioner's testimony to find that the event occurred in 1999.


The panel found that the event occurred in 1996 and based its conclusion that the Petitioner is not disabled in part on the fact that she worked without restriction from 1996 to 2001. It is not correct that the Petitioner worked uninterruptedly from 1996 to 2001 because she had periods of disability in 1996, 1997 and 1999. It is correct, however, that the Petitioner was able to perform the full duties of her job from October 5, 1999 until her last day of work.


Since the Petitioner bears the burden of proof and has not met that burden with respect to whether the second injury occurred in 1996 or in 1999, I do not find the panel's error, if it is error, to be fatal since it was based on the Petitioner's assertions to them and on the Petitioner's application.


I note that the date of the second injury is inconsequential to the outcome of the case because the application is denied for unrelated reasons.
This application for accidental disability retirement benefits is denied.


SO ORDERED.


DIVISION OF ADMINISTRATIVE LAW APPEALS


Maria A. Imparato
Administrative Magistrate

DATED: 6/12/08


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