COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals


Scott Oliva,

Petitioner

v. Docket No. CR-07-414

Massachusetts Turnpike
Authority Employees'
Retirement Board,

Respondent


Appearance for Petitioner:

William R. Neelon, Esq.
William T. Salisbury, Esq.

21 McGrath Highway, Suite 304
Quincy, MA 02169

Appearance for Respondent:

Walter M. Foster, Esq.

Sheehan Phinney Bass & Green
One Boston Place
Boston, MA 02108

Administrative Magistrate:

Maria A. Imparato, Esq.

DECISION

Scott Oliva filed a timely appeal under G. L. c. 32, s. 16 (4) of the May 30, 2007 decision of the Massachusetts Turnpike Authority Employees' Retirement Board ("Board") denying his request for accidental disability retirement benefits. (Exs. 1, 2)

I held a hearing on April 24, 2008 and July 14, 2008 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA. I admitted documents into evidence. (Exs. 1 - 36) I marked the joint pre-hearing memorandum "A" for identification, and medical records not related to the condition on account of which the Petitioner seeks retirement "B" for identification. The Petitioner testified on his own behalf. After the Petitioner's testimony on April 24, 2008, the Board requested a continuance in order to hear rebuttal testimony from Thomas Antkowiak, M.D. The hearing was continued, by agreement of the parties, to July 14, 2008 to hear Dr. Antkowiak. The record closed on August 29, 2008 with the filing of briefs. There are two tape cassettes of the hearing.

FINDINGS OF FACT

1. Scott Oliva, d.o.b. 12/27/1968, worked for the Massachusetts Turnpike Authority from November 22, 1988 to January 10, 2006. He worked as a toll collector from 1988 to in or about November 2001. He then went through six months of retraining in computers and worked as an assistant in the Risk Management Office. He returned to his position of toll collector from in or about October 2005 until January 2006. (Ex. 6, Testimony)

2. Mr. Oliva's duties as a toll collector included filling the automatic toll issue machines; distributing tickets and/or collecting tickets and/or money for vehicles using the Authority's road and tunnel systems; recording all toll transactions by means of punched keys, ticket transport and/or handwritten data; preparing reports on all unusual occurrences, truck permits and special toll transactions; counting and recording cash receipts and accounts for all tickets issued and received; and providing information as requested by motorists. (Ex. 6, job description)

3. Mr. Oliva last worked at the Allston Brighton tolls from 6 a.m. to 2 p.m. He serviced about 3,000 cars during that time because he collected about $3,000 on each shift. He carried to his tollbooth a duffel bag weighing about 45 pounds that contained receipt paper, money bands, elastics, and a cooler. He set up his booth and his cash drawer. (The cash drawer weighed about 10 pounds.) He would take money from motorists and use both hands to count it, count out change and reach out with his left hand to give the change to the motorist. When he received the toll, he would enter the number of axles on the vehicle on a computer touch screen, hit the receipt button, and reach 18 inches to the right to tear off the receipt. His job required constant turning of his head, looking up and looking down. (Testimony, Oliva)

4. On March 6, 2000, during rush hour, Mr. Oliva extended his arm out to the receipt machine when his right shoulder froze. Mr. Oliva was sent by the senior toll collector to a doctor who snapped the shoulder into place, put his arm in a sling, and referred Mr. Oliva to Dr. McNeil at Sullivan Orthopedics. (Ex. 3, Testimony)

5. Mr. Oliva filed a notice of injury on March 6, 2000, claiming a repetitive motion injury to his right shoulder. (Ex. 7, 3/6/00)

6. Mr. Oliva saw Dr. McNeil on March 22, 2000, with a complaint of pain located in the back posterior aspect of the shoulder radiating down his arm. X-rays revealed spurring underneath the acromium as well as underneath the clavicle. Dr. McNeil recorded his impression of right shoulder impingement with acute bursitis, injected Depo-Medrol into Mr. Oliva's shoulder, and advised him to remain out of work for one week. (Ex. 16, 3/22/00)

7. Mr. Oliva had a bad reaction to the cortisone injection and experienced increased pain in the next two days. Dr. McNeil prescribed Vioxx and Percocet. (Ex. 16, 3/24/00)

8. On April 5, 2000, Dr. McNeil noted his impression of bursitis of the right shoulder with persistent symptoms and prescribed a course of physical therapy. He gave Mr. Oliva a note to return to light duty work on April 7, 2000, with no lifting greater than 20 pounds and no repetitive activities. (Ex. 16, 4/5/00)

9. An MRI of the right shoulder on May 19, 2000 suggested muscle strain and partial rotator cuff tear. There were hypertrophic changes at the AC joint slightly impinging on the supraspinatus musculotendinous junction, and a suggestion of a partial tear or tendinosis of the supraspinatus tendon. (Ex. 17)

10. At Mr. Oliva's visit on May 25, 2000, Dr. McNeil noted his impression of symptomatic impingement syndrome of the right shoulder with persistent symptoms. Dr. McNeil noted that Mr. Oliva had not responded to conservative care and suggested arthroscopic subacromial decompression. (Ex. 16, 5/25/00)

11. On August 1, 2000, Dr. McNeil performed arthroscopic debridement of a SLAP (Superior Labrum Anterior to Posterior) lesion with subacromial decompression of the right shoulder. (Ex.18)

12. On August 10, 2000, Dr. McNeil noted that Mr. Oliva had about a 20% tear of the undersurface of the biceps tendon attachment. "I am concerned about his long term prognosis going back to [the] heavy job that he has with the lifting as a toll operator. I was wondering if they could maybe modify some of the things with his job." He opined that Mr. Oliva would be out of work for a few months. (Ex. 16, 8/10/00)

13. On September 6, 2000, Dr. McNeil was concerned about Mr. Oliva's long term prognosis based on the fact that he had a partial tear of the biceps tendon. He prescribed physical therapy. (Ex. 16, 9/6/00)

14. On January 7, 2001, Dr. McNeil noted that Mr. Oliva still had persistent pain in his right shoulder that prevented him from returning to work. Dr. McNeil recommended an arthroscopic excision of the biceps tendon at the site of the partial tear, together with arthrodesis of the tendon to try to relieve the bicipital pain and maintain tension and strength of his biceps. (Ex. 16, 1/7/01)

15. On March 13, 2001, Dr. McNeil performed arthroscopic debridement of the superior labrum anterior and posterior lesion, with release of the intra-articular portion of the biceps tendon, and open biceps tenodesis of the right shoulder. His operative note states with respect to the tear of the biceps tendon, "this was a degenerative situation from chronic repetitive activity …" (Ex. 19)

16. On June 28, 2001, Thomas J. Gill, M.D., an orthopedic surgeon, evaluated Mr. Oliva for worker's compensation purposes. Dr. Gill opined that Mr. Oliva "could return to work as a toll cup collector with the following restrictions: No lifting greater than 15 pounds, and no repetitive overhead motion. Given that this is the patient's right arm, I believe that it may be possible for him to work in a tollbooth, as the majority of the repetitive shoulder motion for a toll collector is with the left arm. If the patient is still unable to perform this task six weeks from today, it is unlikely that he would be able to return to full duty as a toll collector in his current condition without the aforementioned acromioclavicular joint injection test." (Ex. 34)

17. In or about November 2001, Mr. Oliva received re-training through Worker's Compensation for six months in computer network repair. (Testimony, Ex. 16, 11/28/01)

18. Mr. Oliva continued to have persistent discomfort over the anterior aspect of his right shoulder. Dr. McNeil recommended an arthroscopic AC joint resection of the right shoulder. (Ex. 16, 11/28/01)

19. On February 22, 2002, Dr. McNeil performed arthroscopic acromioclavicular joint resection of the right shoulder. (Ex. 20)

20. On March 4, 2002, Dr. McNeil opined that Mr. Oliva was doing well after his surgery. "The AC joint is quite arthritic. Hopefully this will take the pain away from that area. He needs to work on getting his strength back in his rotator cuff." (Ex. 16, 3/4/02)

21. On January 30, 2003, Dr. McNeil opined that Mr. Oliva had reached an end result of treatment with 10% total body impairment. Dr. McNeil noted that Mr. Oliva still had pain in the top part of his shoulder. He noted that Mr. Oliva had finished his computer course and was hoping to get a computer job. Dr. McNeil opined, "I think he could certainly do a low demand job with no lifting [with the] right upper extremity. He certainly could not do a repetitive job requiring overhead lifting, and some type of computer job is going to be fine for him." (Ex. 16, 1/30/03)

22. Mr. Oliva began working in the Turnpike Authority Risk Management office where he built a database for the Authority consistent with his retraining. (Testimony)

23. On June 23, 2004, Mark J. Bulman, M.D., an orthopedic surgeon, evaluated Mr. Oliva for Worker's Compensation purposes. Dr. Bulman opined, "his current job that he is doing working in a sedentary capacity with computers and office type work is appropriate for his situation. … Overhead work, physically demanding work involving his upper extremities and repetitive work that is stressful to his right shoulder should be avoided." (Ex. 33)

24. In May 2005, Mr. Oliva lost his computer job in Risk Management because the Director of Personnel decided Mr. Oliva was no longer needed in the position. The Turnpike Authority worker's compensation attorney told Mr. Oliva he could bid on any open position. There were only two positions available: one in emergency services, and one as a toll collector. Mr. Oliva could not get a doctor's note for the emergency services job, so he returned to toll collecting which did not require a doctor's note. (Testimony)

25. On May 2, 2005, Dr. McNeil opined that Mr. Oliva needed to keep working on light duty and limit the number of repetitive motions he performed. "He could do a light duty job with no lifting and no repetitive activity." (Ex. 16, 5/2/05)

26. Mr. Oliva returned to work as a toll collector in or about October 2005. He saw Dr. McNeil before he returned to work and on October 17, 2005 Dr. McNeil opined, "He clearly cannot do any repetitive activities involving right upper extremity. This would cause significant increase in his symptomatology. So, I wrote a note saying he is permanently disabled from going back to his prior job as a tollbooth collector." (Ex. 16, 10/17/05)

27. Two days later, on October 19, 2005, Mr. Oliva told Dr. McNeil that he wanted to return to work "even though he knows he is going to have significant symptoms with his shoulder, he just wants to try to put up with the symptoms for as long as he can. … I therefore will allow him to go back to work …" (Ex. 16, 10/19/05)

28. On December 28, 2005, Mr. Oliva opened the cash drawer in his tollbooth. The drawer stops did not work, and the drawer fell, pulling his right arm to the floor. He developed shoulder and neck pain and a headache. Mr. Oliva filed a notice of injury. He worked for three days in January 2006, and finally stopped working on January 10, 2006. (Testimony, Exs. 6, 7, 2/28/05)

29. Mr. Oliva was seen at the South Shore Hospital Emergency Department on December 28, 2005 several hours after the incident. X-rays were negative for an acute process. Mr. Oliva was diagnosed with shoulder strain and advised to follow up with his orthopedist. (Ex. 21)

30. Mr. Oliva saw Dr. McNeil on January 11, 2006, and informed him about the injury of December 28, 2005. Dr. McNeil noted his impression of recurrent right shoulder pain with a question of rotator cuff pathology. He ordered an MRI. (Ex. 16, 1/11/06)

31. An MRI of the right shoulder on February 5, 2006 revealed a suspected tear of the intra-articular portion of the biceps tendon from the bicipital anchor. (Ex. 24)

32. On February 9, 2006, Dr. McNeil noted his impression that Mr. Oliva had some adhesions that broke up "because there is no evidence of any tear of the tendon," and "probable right cervical radiculopathy, question of disc pathology." Dr. McNeil ordered a cervical MRI and EMG test. (Ex. 16, 2/9/06)

33. An MRI of the cervical spine on March 25, 2006 revealed cervical spondylosis. (Ex. 23)

34. On April 3, 2006, Dr. McNeil noted that Mr. Oliva had quite a bit of pain in his neck since the injury of December 28, 2005. He noted his impression of cervical spondylosis with right cervical radiculopathy. "I feel that his symptoms are causally related to the recent work injury. It certainly flared up this underlying condition which is an overuse problem that dates back to all the years of the heavy lifting that he has done with the coins going back and forth to the tollbooth. Also the repetitive nature of the job clearly caused some premature degeneration of the cervical spine." (Ex. 16, 4/3/06)

35. By letter of April 26, 2006, Dr. O'Neil noted that Mr. Oliva had had an EMG and MRI "which revealed advanced cervical spondylosis. I have referred him to see a spine specialist. He is fully disabled from his job as a toll collector." (Ex. 13)

36. John L. Doherty, Jr., M.D., an orthopedic consultant, evaluated Mr. Oliva on May 12, 2006 at the request of Mr. Oliva's attorney. Dr. Doherty opined that Mr. Oliva is "unable to return to any occupation that requires prolonged standing, sitting, holding his hand overhead, lifting any object, reaching out to the side like a toll collector would do. I find he is totally disabled for that occupation at this time. It is also my opinion based entirely on his history, that the incident he described was sufficient to cause the present symptomatology and objective findings, and is a major but not necessarily predominant cause since he has underlying degenerative changes of the cervical spine, of his present condition." (Ex. 35)

37. On July 31, 2006, Dr. Bulman performed an impartial examination of Mr. Oliva for worker's compensation purposes. Dr. Bulman opined, "It is my opinion that he should not be doing work as a toll collector. There is some relationship potential of his chronic degenerative neck symptoms potentially getting aggravated by that type of work due to shoulder compromise. … [H]e is disabled from working as a toll collector. He is not totally disabled and should find an office type work that he had previously been doing." (Ex. 31)

38. Mr. Oliva filed an application for accidental disability retirement benefits on or about August 1, 2006, citing "injuries to my right dominant arm and neck" as a result of the injuries of March 6, 2000 and December 28, 2005. (Ex. 3)

39. Dr. McNeil filed a statement in support of the application answering all certificate questions in the affirmative. Dr. McNeil opined that he had been treating Mr. Oliva "for an injury that he sustained to his right shoulder at work on March 6, 2000. He never recovered from that injury and he was treated extensively with physical therapy, and he subsequently needed to go forward with three surgical interventions. He has a permanent impairment of the function of his right upper extremity. He cannot do any job that requires chronic repetitive activities of the right upper extremity and he cannot do any lifting on a regular basis. … Therefore I feel that he is fully permanently disabled from [his] prior job as a toll collector." (Ex. 4)

40. A single physician regional medical panel evaluated Mr. Oliva in January 2007. The panel was composed of Thomas Antkowiak, M.D., Nabil W. Basta, M.D., and Louis A. Fuchs, M.D., all of whom are orthopedic surgeons. (Exs. 9, 10, 11)

41. Drs. Antkowiak and Fuchs answered in the negative with respect to the existence of a disability. Dr. Basta answered in the affirmative to all certificate questions. (Exs. 9, 10, 11)

Dr. Antkowiak

42. Dr. Antkowiak evaluated Mr. Oliva on January 22, 2007. He noted Mr. Oliva's complaint of tiredness in his right arm with activity and pain associated with certain neck motions. Dr. Antkowiak diagnosed a right shoulder strain and a possible cervical strain as a result of the incident of December 28, 2005. (Ex. 9)

43. Dr. Antokowiak opined, with respect to his diagnosis, "This would also have been considered a temporary exacerbation of a preexisting apparently diffuse degenerative condition of his cervical spine and also some degenerative rotator cuff disease, which has been operated on, on several occasions in the past." (Ex. 9)

44. Dr. Antkowiak concluded, "[A]lthough he has a persistent symptomatic condition in his right upper extremity and neck area, there are no objective findings of any kind that would indicate that the claimant has any significant weakness, loss of muscle mass, or loss of range of motion of either his cervical spine or right upper extremity that would prevent him from returning back to work as a toll collector. … [T]he member is not physically incapable of performing the essential duties of his job as described in the current job description." (Ex. 9)

43. Dr. Antkowiak did not perform a physical examination. (Testimony, Oliva)

Dr. Basta

45. Dr. Basta evaluated Mr. Oliva on January 31, 2007. He reviewed medical records and a job description, took a history and performed a physical examination. Dr. Basta diagnosed right shoulder strain, status post three surgical procedures. (Ex. 10)

46. Dr. Basta noted Mr. Oliva's complaint of pain and discomfort and numbness in his hand since the injury of December 28, 2005. Physical examination revealed deltoid atrophy on the right. Range of motion of the right shoulder was up to 110 degrees of active abduction, with pain beyond that. Internal rotation was up to L1 and flexion and extension were within normal limits. There was no evidence of impingement syndrome, and there was a negative Near and Hawkins test. The rest of the neurological exam was unremarkable. (Ex. 10)

47. Dr. Basta concluded that Mr. Oliva is not physically able to perform the essential duties of a toll collector because he is unable to perform the lifting and repetitive actions required in the job on account of his right shoulder injury. (Ex. 10)

48. Dr. Basta concluded that the incapacity is likely to be permanent. (Ex. 10)
49. With respect to causation, Dr. Basta opined, "[S]aid incapacity [is] such as might be the proximate result of the work injury sustained on account of which retirement is claimed. The aggravation caused by the accident in December 2005 accelerated his pre-existing shoulder condition." (Ex. 10)

Dr. Fuchs

50. Dr. Fuchs evaluated Mr. Oliva on January 23, 2007. He reviewed medical records and a job description, took a history and performed a physical examination. Dr. Fuch diagnosed chronic right glenohumeral myofascitis, and status post arthroscopic surgeries on February 22, 2002, March 13, 2001 and August 1, 2000. (Ex. 11)

51. Physical examination revealed motor strength of the right shoulder of 4/5 with respect to abduction, forward elevation and depression. Range of motion was full with respect to abduction, forward elevation and depression. Mr. Oliva lacked 5 ½ inches of internal rotation in the intrascapular region when compared to the left upper extremity. Liftoff test was graded motor power 4 with pain noted in the right shoulder region. (Ex. 11)

52. Dr. Fuchs concluded that Mr. Oliva is capable of performing the essential duties of a toll collector. "Examination reveals that the patient had enough satisfactory range of motion and motor power to do the tasks of a toll collector which include: arranging the booth for operation as well as closing procedures, issuing violation tickets, preparing reports and other administrative tasks, provide information and assistance, and collect tickets and currency from drivers and provide change as necessary." (Ex. 11)

53. Currently, Mr. Oliva uses cervical traction two or three times a week for headache. He is unable to use his right shoulder repetitively for more than 15 minutes. He cannot lift more than 20 pounds with his right arm. He takes Percocet and Gabapentin. (Testimony)

54. Mr. Oliva does not recall receiving a survey from PERAC after his panel examinations. He did not make a complaint about Dr. Antkowiak to PERAC. (Testimony, Oliva)

55. Right after Mr. Oliva's evaluation by Dr. Antkowiak, he called Attorney Neelon to report that Dr. Antkowiak had not performed a physical examination. (Testimony, Oliva)

CONCLUSION AND ORDER

This case is remanded to the Massachusetts Turnpike Authority Employees' Retirement Board with instructions to convene a newly composed medical panel of orthopedic surgeons to evaluate Scott Oliva.

The case is remanded for two reasons: Dr. Antkowiak failed to perform a physical examination of the Petitioner; and both Dr. Antkowiak and Dr. Fuchs failed to consider the risk of re-injury to the Petitioner when answering in the negative with respect to the existence of a disability.

Dr. Antkowiak

The Petitioner asserts that Dr. Antkowiak failed to examine him during his evaluation on January 22, 2007 despite the fact that Dr. Antkowiak's narrative indicates that he performed a physical examination. Right after his meeting with Dr. Antkowiak, the Petitioner called his attorney to report the absence of a physical examination. Dr. Antkowiak has no present recollection of his evaluation of the Petitioner, but he did testify about the procedure that he uses at all evaluations, which includes performing a physical examination.

Because the Petitioner remembers this evaluation, and reported the absence of a physical examination immediately to his attorney, and because Dr. Antkowiak does not have a present recollection of the Petitioner's evaluation, I conclude that the Petitioner's recollection is more reliable than that of Dr. Antkowiak. I therefore find that Dr. Antkowiak failed to perform a physical examination of the Petitioner.
Under G. L. c. 32, s. 6 (3) (c), "A physical examination of such member shall be conducted by the medical panel." The failure to perform a physical examination warrants a remand and re-examination.

Risk of re-injury

The Contributory Retirement Appeal Board is not bound by the negative response of a majority of the medical panel to any certificate question where the panel majority employed an erroneous standard to reach its conclusion. Malden Retirement Board v. CRAB, 1 Mass. App. Ct. 420, 298 N.E.2d 902 (1973).
Disability is the inability to perform the essential duties of one's job. Implicit in the definition of disability is the notion that a claimant is unable to perform the essential duties of his job if doing so would subject him to significant risk of re-injury or death. See, Dimitropoulos' Case, 343 Mass. 341 (1961), where the Supreme Judicial Court held that a finding of partial incapacity is warranted where an employee, in accordance with medical advice, refrains from engaging in his former work because of a considerable risk of re-injury.

CRAB considered the issue of the risk of re-injury in its decision in the case of Joshua Filipek v. Bristol County Retirement Board, CR-03-672 (DALA dec. 3/29/04; CRAB dec. 12/23/04), where a county correction officer who sustained physical and psychological injuries in a prison riot did not want to return to work where he faced a considerable risk of re-injury. In its decision of December 23, 2004, CRAB held that "the proper standard to be applied to evaluating the risk of re-injury or harm to third parties for determining disability under Chapter 32 is whether the member is able to perform the essential duties of his or her position without a reasonable probability of substantial harm to himself or third parties." The fact finder and the medical panel "shall take into account (a) the likelihood of re-injury or harm to the member or third parties posed by the member's return to work; and (b) the seriousness of the consequences to the member or third parties of the injury to be risked. It is not enough that there is some risk of some harm. There must be a reasonable probability of substantial harm. Moreover, the test is an objective one. Where a member is refusing to return to work because of a fear of re-injury … the test is whether, in light of all the circumstances including the member's disability and the conditions of the position, a reasonably careful person desirous of making a living would be reasonable in refusing to accept such work."

In view of the fact that the Petitioner suffered his first injury in March 2000 when his right shoulder froze; that he required arthroscopic surgery to that shoulder on three occasions in 2000, 2001 and 2002; that he was able to perform a desk job without aggravating his right shoulder condition until 2005; and that within months of returning to his toll collector job he re-injured his right shoulder, the panel majority employed an erroneous standard to the issue of disability by failing to analyze the Petitioner's risk of re-injury as set forth in CRAB's decision in Filipek.
The new medical panel shall be instructed to consider the risk of re-injury to the Petitioner, using the standard enunciated by CRAB, above, before certifying with respect to the issue of disability.

This case is remanded with the instructions enumerated above.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

/s/ Maria A. Imparato
Administrative Magistrate

DATED: 3/12/09