COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals


John McDonough,

Petitioner
v. Docket No. CR-07-577

Taunton Retirement Board,

Respondent

Appearance for Petitioner:

Judith B. Gray, Esq.

122 Dean St.
Taunton, Ma 02780

Appearance for Respondent:

Nan O'Neill, Esq.

Murphy, Hesse, Toomey & Lehane, LLP
300 Crown Colony Dr.
Quincy, MA 02169

Administrative Magistrate:

Bonney Cashin

SUMMARY OF DECISION

Medical panel did not lack pertinent facts or apply an erroneous standard when it determined that the petitioner was not incapable of performing his essential duties as a maintenance repairman at a power plant. The medical panel properly assessed his job duties and ascertained the nature of his symptoms.

DECISION

INTRODUCTION

Pursuant to G.L. c. 32, § 16 (4), John McDonough appeals the decision of the Taunton Retirement Board issued on July 27, 2007 to deny him accidental disability retirement benefits. The Board's decision was based on a determination by a medical panel that Mr. McDonough was not incapable of performing the essential duties of his position as a mechanical equipment maintenance repairman. Mr. McDonough argues that the medical panel committed an error of law when it issued a certificate finding that McDonough was not incapacitated because the panel failed to properly assess his job duties and to thoroughly ascertain the nature of his symptoms.

I held a hearing on December 18, 2008. Mr. McDonough was the only witness. The parties stipulated to the admissibility of twenty-three exhibits. The hearing was recorded on one tape.

FINDINGS OF FACT

Based on the evidence presented, I find the following:

1. Mr. McDonough was born on October 10, 1946. (Exh. 1).

2. Mr. McDonough was employed by the City of Taunton Municipal Light Plant as a mechanical equipment maintenance repairman from June 23, 1986 until April 7, 2006, except for a brief time when he worked as a meter reader. (Exh. 1; McDonough Test.).

3. Mr. McDonough worked until August 22, 2005. (Exh. 2; McDonough Test.).

4. Mr. McDonough's job duties included: machine tooling and setup; installing, maintaining, repairing, testing, overhauling and modifying power plant equipment such as pumps, compressors, and turbines; adjusting equipment; periodic maintenance; operating machine tools and power tools; millwright welding; maintaining equipment history records; and driving motor vehicles. (Exh. 3; McDonough Test.).

5. On January 4, 1999, Mr. McDonough suffered a myocardial infarction (heart attack) while repairing and replacing part of a large boiler that was still operating. (Exhs. 1, 13; McDonough Test.).

6. On January 12, 1999, Mr. McDonough underwent cardiac catheterization; given the location of the damaged muscle his cardiologist, George J. Chilazi, M.D., placed him on a medical therapy regime rather than performing an angioplasty. (Exhs. 7, 13; McDonough Test.).

7. In April, 1999, Mr. McDonough returned to work as a meter reader, but found the work more physically demanding and stressful than he anticipated it would be. (McDonough Test.).

8. He subsequently returned to his former position. (Exh. 17; McDonough Test.).
9. Mr. McDonough continued to experience chest pain and shortness of breath periodically after he returned to his former position; in response he would slow down and take deep breaths. (Exh. 7; McDonough Test.).

10. Mr. McDonough reported these symptoms to Dr. Chilazi, who documented them in his office notes, but who did not recommend that Mr. McDonough stop working. (Exh. 18; McDonough Test.).

11. He did not report these incidents to his supervisor because "they knew," nor did he leave work early or otherwise use sick leave in response to his symptoms. (McDonough Test.).

12. Co-workers would help Mr. McDonough carry heavy equipment and tools. (McDonough Test.).

13. Lawrence Baker, M.D. evaluated Mr. McDonough on June 7, 1999 and concluded that Mr. McDonough's exertion at work on January 4, 1999, superimposed on his undiagnosed coronary atherosclerosis, was the major contributing factor in his heart attack. (Exh. 15).

14. Dr. Baker further opined that Mr. McDonough is totally and permanently disabled from his work as a power plant repairman. (Exh. 15).

15. Michael J. Meuth, M.D. evaluated Mr. McDonough on November 5, 1999 and concluded that his coronary disease had been present for some time and that his heart attack was brought on by an acute plaque rupture of unknown cause. (Exh. 16).

16. Thomas Sbarra, M.D. evaluated Mr. McDonough on February 8, 2000 and concluded that his heart attack was work-related. (Exh. 17).

17. Dr. Sbarra further concluded that Mr. McDonough had fully recovered and had no significant physical limitations. (Exh. 17).

18. Timothy Alikakos, M.D. reviewed Mr. McDonough's medical record and issued a report dated June 16, 2003, in which he opined primarily on the issue of causality. (Exh. 19).

19. On August 25, 2005, Mr. McDonough had a cardiolite stress test that was limited by chest pain and shortness of breath. (Exhs. 7, 18).

20. On September 2, 2005, as a result of the stress test, Mr. McDonough underwent a cardiac catheterization, angioplasty, and the placement of two drug-eluting stents in the right coronary artery. (Exhs. 18, 20; McDonough Test.).

21. Mr. McDonough filed an application for accidental disability retirement on November 20, 2006. (Exh. 1).

22. In his application, when asked to describe the duties he was unable to perform as a result of his disability, Mr. McDonough stated that he could not lift heavy objects, which is necessary on a daily basis, and that the pressures of the job increase his stress and cause anxiety. (Exh. 1).

23. The Board denied Mr. McDonough's application on July 30, 2007. (Exh. 9).
24. Mr. McDonough filed an appeal postmarked on August 8, 2007 and received on August 3, 2007. (Appeal).

25. Dr. Chilazi, who has treated Mr. McDonough since 1999, concluded in 2006 that he is permanently disabled as a result of his heart attack in 1999. (Exh. 7).

26. In letters dated March 15, 2006 and July 25, 2006, Dr. Chilazi stated that Mr. McDonough continued to have angina class III and continued to have "limited functional capacity limited by dyspnea, fatigue and chest discomfort." (Exh. 7).

27. Dr. Chilazi's office note dated November 15, 2005 reports slight shortness of breath and a question of palpitations, the note dated January 23, 2006 reports some shortness of breath and arrhythmia with palpitations, and the final note provided, which is dated August 23, 2006, reports negative for shortness of breath and chest pain and concludes "stable at this point." (Exh. 18.)

28. A regional medical panel, comprised of Michael Johnstone, M.D., a cardiologist, Mark S. Lebovits, M.D., an internist, and Richard S. Fraser, M.D., an internist, examined Mr. McDonough on May 8, 2007. (Exh. 8).

29. The panel members also reviewed Mr. McDonough's medical records, which included the reports of the physicians described in paragraphs 13-18 and 25-27 above and his job description. (Exhs. 3, 8).

30. The panel members unanimously concluded that Mr. McDonough was not incapable of performing the essential duties of his job as described in the current job description based upon findings of stable coronary artery disease, no symptoms of clinical congestive heart failure, and no evidence of coronary ischemia given his lack of symptoms. (Exh. 8.)

31. In its report, the medical panel stated that Mr. McDonough denied cardiac symptoms since the placement of the stents in 2005, specifically he denied "exertional or resting chest pain … orthopnea, paroxysmal nocturnal dyspnea, peripheral edema or claudication." (Exh. 8).

32. In its report, the panel noted that Mr. McDonough had difficulty identifying his reasons for not being able to return to work. (Exh. 8).

33. Mr. McDonough stated that no one asked him any questions about his job duties, when he tried to tell the panel members about his symptoms, they would not listen, and in his view the process was like a "kangaroo court." (Exh. 23; McDonough Test.).

34. Following the Board's action on Mr. McDonough's application, David Maguire, M.D. evaluated Mr. McDonough on December 6, 2007 and noted that Mr. McDonough continued to experience shortness of breath on exertion and limited physical endurance following his angioplasty in 2005; thus he opined that the angioplasty had not improved Mr. McDonough's functional status. (Exh. 22).

35. Dr. Maguire further concluded that Mr. McDonough is disabled in spite of medication and interventional cardiology and is unable to return to his employment. (Exh. 22).

CONCLUSION

Mr. McDonough's appeal was filed five days after the date on which the Board acted, and, thus, well within the fifteen day appeal period. G.L. c. 32, § 16 (4). His appeal, thus, is timely.

Mr. McDonough is not entitled to a new medical panel. He failed to show that the medical panel that examined him was deprived of pertinent facts or applied an erroneous standard. Kelley v. Contributory Retirement Appeal Bd., 341 Mass. 611, 617-618, 171 N.E.2d 277, 281-282 (1961).

In order for Mr. McDonough to obtain accidental disability benefits he must show that he is "unable to perform the essential duties of his job And that such inability is likely to be permanent… ." G.L. c. 32, § 7 (1). A condition precedent to an accidental disability retirement allowance is a certification by a medical panel of the total and permanent disability. Quincy Retirement Bd. v. Contributory Retirement Appeal Bd., 340 Mass. 56, 60, 162 N.E. 2d 802, 805 (1959). The medical panel must answer three questions: (1) is the applicant mentally or physically incapable of performing the essential duties of his or her job as described in the current job description; (2) is such incapacity likely to be permanent; and (3) is the disability such as might be the natural and proximate result of the injury or hazard undergone that forms the basis of the relevant claim. As noted in the medical panel certificate, once the medical panel answers "no" to one of the three questions, it need not answer the question or questions that follow.

In this case the medical panel answered the first question in the negative. Accordingly, the panel did not reach any issue beyond whether Mr. McDonough is unable to perform the essential duties of his job as described in his job description. While the Board argued that it looked at Mr. McDonough's application as presenting an issue about causation, I need not reach that issue.
Mr. McDonough argues that the medical panel failed to take a proper and complete history and as a result erroneously concluded that he did not have symptoms of congestive heart failure or coronary ischemia. The findings above belie his view.

The medical panel certified that it reviewed Mr. McDonough's job description. It accurately summarized that job description in its certificate. The information before the panel included a detailed functional job description that described the task involved, the frequency of the activity, the physical demand of the activity, and identified whether it was essential, that is, whether it was a mandatory requirement for performing the particular job.

In his application, Mr. McDonough stated that he could not lift heavy objects, which is necessary on a daily basis. He further stated that the job was stressful. He testified, however, that co-workers would help carry heavy equipment for him after his heart attack in 1999. He was able to work, thus, with this accommodation. That the medical panel did not ask him questions about his job description, or described it in less detail than Mr. McDonough would have done does not equate to a lack of pertinent information or the application of an erroneous standard. McCarthy v. Contributory Retirement Appeal Bd., 2003 WL 21500543 *5 (Mass. Super. 2003).

The medical panel's report indicates that the panel members did question Mr. McDonough about his symptoms following the placement of the stents in 2005. Mr. McDonough specifically denied "exertional or resting chest pain … orthopnea, paroxysmal nocturnal dyspnea, peripheral edema or claudication." (Exh. 8). These symptoms were those that the panel members, no doubt, felt were relevant to their assessment of his condition. Moreover, Mr. McDonough's responses are not necessarily inconsistent with the evidence of Dr. Chilazi. The chest pain and shortness of breath that Mr. McDonough testified to occurred prior to the placement of the stents. According to Dr. Chilazi, the symptoms reported by Mr. McDonough after the placement of the stents included some shortness of breath, fatigue, and chest discomfort. To the extent Dr. Maguire's opinion differs, it was not before the panel and, thus, could not form a basis for the panel's findings.
The dispute here arises from different views on the severity of Mr. McDonough's symptoms. Mr. McDonough denied chest pain to both Dr. Chilazi and the panel members. The symptoms of concern to the panel members, based upon their definitions in Stedman's Medical Dictionary (Williams and Wilkins 24th ed. 1982), are indicative of a more severe heart condition. It is within the panel's expertise to consider these symptoms to be those relevant to an opinion on disability and to have relied on Mr. McDonough's negative response.

Consequently, I conclude that the panel did not lack pertinent information about Mr. McDonough's job duties or his symptoms or apply an erroneous standard. The Board correctly determined that his application for accidental disability retirement should be denied.

DIVISION OF ADMINISTRATIVE
LAW APPEALS

/s/ Bonney Cashin
Administrative Magistrate


Dated: March 12, 2009