COMMONWEALTH OF MASSACHUSETTS



Suffolk, ss. Division of Administrative Law Appeals

Gary Provenzano,

Petitioner

v. Docket No. CR-06-903

Arlington Retirement Board,

Respondent

Appearance for Petitioner:

Nicholas Poser, Esq.

197 Portland Street, 5th Floor
Boston, MA 02114-1716

Appearance for Respondent:

Thomas Paul Gorman, Esq.

Sherin and Lodgen, LLP
101 Federal Street
Boston, MA 02110

Administrative Magistrate:

Sarah H. Luick, Esq.

DECISION

Pursuant to G.L. c. 32, §16(4), the Petitioner, Gary Provenzano, is appealing the October 26, 2006 decision of the Respondent, Arlington Retirement Board, denying his request for accidental disability benefits. (Ex. 2) The appeal was timely filed. (Ex. 1) A hearing was held November 29, 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. Exhibit 17 is a voluminous set of medical records the parties organized and filed post hearing.) The parties entered into some stipulations in their pre-hearing memoranda. ("A") Two tapes were used. The Petitioner testified, and presented the testimony of: Kenneth Hughes, an Arlington Police Lieutenant; and, Joyce Wilson, an Arlington Police Detective. Both parties made arguments on the record which closed December 29, 2007.

FINDINGS OF FACT

1. Gary Provenzano, d.o.b. 11/19/51, was appointed an Arlington Police Officer in 1977. He had a career doing patrol work in a cruiser and on foot. ("A". Exs. 3 & 5. Testimony)

2. In and around the mid-1990's, Officer Provenzano was diagnosed with Multiple Sclerosis (MS). The symptoms he was having were preventing him from carrying out the exertional aspects of Police Officer work such as exerting physical force when needed or running after suspects. Walking even became a concern as he would not always be able to maintain his balance. He did receive treatment for the MS, but it is not a condition that can be controlled sufficiently by treatments to permit exercise of full exertional police tasks, and it progresses with time. From the time he was diagnosed, Officer Provenzano has regularly been followed by MS specialists. (Ex. 17. Testimony)

3. Officer Provenzano was able to reach an agreement on a job accommodation with his employer who had initially tried to involuntarily retire him. The accommodation involved an assignment to the Detectives Division that occurred in 2002. Officer Provenzano investigated criminal matters, in particular, credit card fraud. He did much of his work using a telephone to secure information, and did other work he could accomplish from behind a desk. He also investigated firearm licensing matters, and did other tasks he could investigate and address doing no exertional police work. With time, this accommodation was working out well for him. (Exs. 5 & 17. Testimony)

4. By March 2004, Officer Provenzano was working in the Detectives Division on the second floor of the Police Station. He had use of an elevator to reach his office. The station has a garage connected to it where he parked his car. He had a desk with a computer, telephone and other office equipment. He was using a cane to help him keep his balance when walking. His hours were officially noon to 8:00 PM, Monday through Friday. His practice was to come to work by 11:45 AM and often to leave, depending on what he was working on, at 8:15 PM, although he was able to leave by 7:45 PM. He did not have to log in his time, and after 4:00 PM, there was no superior officer within the Detective Division he reported to. He would be seen by the Front Desk Officer as he entered and left the building during his shift, but no one worked directly with him and he did not have someone taking over his work at the end of his shift just as he did not have to relieve any officer at the start of his shift. He had a special assignment he alone did. (Ex. 5. Testimony)

5. Officer Provenzano knew and got along with many of the officers, including superior officers, who worked at the station since he had been on the force for so many years. He was supervised by the head of the Detectives Division who would give him a particular job assignment. At some point during March 2004, he was investigating credit card fraud at the A & A Deli. That case involved viewing a surveillance video which was on a disc/cd that could be put into a computer for viewing. He did not know how to do this using the computer at work. He took the disc/cd home to view it on his home computer since his brother-in-law felt he could show him how to view it. This is what happened. He then had to return it to his office. (Testimony)

6. On March 29, 2004, Officer Provenzano, at 7:45PM, left the second floor Detectives Division for the first floor. He passed by Lieutenant Hughes at the Front Desk who saw him, and continued by him into a Z-shaped down sloping hallway or corridor which led to the attached parking garage where his car was parked. There were no doors from the Front Desk area through the end of the Z-shaped corridor. Officer Provenzano had in his hand a plastic grocery bag filled with papers he was taking home to review. He also was using a cane for walking. He found that he could not use a backpack as that would throw him off balance. At this time his left leg gave him the most trouble when walking. As he turned corner, the thin matting or carpet in the corridor was bunched up and twisted, and Officer Provenzano walked ahead without an ability to avoid this condition. He tripped on the bunched up matting. He fell, hitting his head against the wall causing his glasses to fly off his head. He then landed directly onto his right knee and left forearm before then falling onto the floor. The bag and cane came out of his hands. He felt immediate pain in his right knee. (Exs. 6 & 17. Testimony)

7. Officer Provenzano called out for help. Lieutenant Hughes had heard a thud or bang noise in the hallway. He left the Front Desk to go to him. He found him still on the ground and appearing to be dazed and hurt. He asked him if he was alright and if he wanted an ambulance. Despite feeling the strong right knee pain, Officer Provenzano refused the ambulance. He asked Lieutenant Hughes to help him up, which Lieutenant Hughes did. Officer Provenzano felt very embarrassed about his circumstances. He did not say anything much to Lieutenant Hughes. At this point Officer Provenzano asked Lieutenant Hughes to help him to his car in the garage which Lieutenant Hughes did. He helped him into his car, and saw him drive away with no apparent significant problem doing so. Lieutenant Hughes did not conclude Officer Provenzano was leaving work early. (Ex. 6. Testimony)

8. In Officer Provenzano's car at this time was the disc/cd surveillance video that he was going to return to the office. He had not taken it in with him when he came to work that day. He did not ask Lieutenant Hughes to bring it to the Detectives Division after he fell. (Testimony)

9. Officer Provenzano did not immediately seek medical attention. He first was seen about the right knee two days later, although he had not come to work those next two days. He saw Dr. Tsai at the Lahey Clinic on March 31, 2004 who noted about the visit at which Officer Provenzano explained how he had tripped and fell in the hallway:
He had immediate pain of the right knee. He didn't
seek medical attention on the following day. This is
day #2. The injury occurred 3/29/04. The patient notes
initial swelling of the right knee. (Ex. 17)

No information was listed in Dr. Tsai's report about the work circumstances surrounding the injury. (Ex. 17)

10. Dr. Geoffrey Van Flandern saw Officer Provenzano on April 1, 2005.
Regarding the background circumstances leading up to the March 29, 2004 injury, Dr. Van Flandern wrote:
While the patient was on the job on 3/29/04, he … got up
from his seat to actually leave [for] the day … (Ex. 17)

11. Officer Provenzano filed an incident report on his fall, as did Lieutenant Hughes. Lieutenant Hughes remarked that Officer Provenzano "fell down in the hallway that leads to the parking garage … I helped him to his fee and then I assisted him to his vehicle. He reported no injuries at the time." (Ex. 6) Officer Provenzano wrote:
[W]hile leaving the police station at the completion of
my shift, as I entered the corridor leading to the garage,
I tripped and fell on the rug which was askew and not
completely flat. As I fell, I struck my head against the
wall, damaging my eyeglasses, and landed on my right
knee and left forearm. I called to Lt. Hughes, who was
on the front desk, and asked for his assistance. Lt. Hughes
arrived, asked me if I was all right and assisted me in standing.
Lt. Hughes then asked me if I wanted Rescue to respond or
if I needed any medical attention. I declined and asked
him to assist me to my vehicle. I did not tell Lt. Hughes the circumstances involving my fall at that time. (Ex. 6)

12. Officer Provenzano returned to work on April 5, 2004. He stayed working until the first week of August 2004 when the right knee pain and problems moving about became very difficult for him. He was using crutches with difficulty. He had an MRI which showed a torn meniscus tear, and he was evaluated for surgery. He did not opt for surgery since there was no assurance he would have diminished pain. Once he stopped working he was out from work receiving G.L. c. 41, §111F benefits through the June 2005, when he was removed from this status and he stayed out from work using his sick leave time. He was taken off Section 111F status based on an evaluation by a Town appointed physician who cleared him for a return to perform light duty largely sedentary work. Officer Provenzanso found the right knee pain too much along with the use of the crutches to get around to permit a return to work. Officer Provenzano retired under superannuation effective April 11, 2007. (Exs. 3, 4, 5, 14 & 17. Testimony)

13. Officer Provenzano filed for accidental disability retirement in August 2005 based on the March 29, 2004 fall. Dr. Edward Wolpow, his neurologist, supported the application. In his application, Officer Provenzano did not explain why he was in the hallway when he fell, i.e., that he was leaving work, or that he was retrieving the disc/cd to bring back to his office from his car. (Exs. 3 & 4. Testimony)

14. A Medical Panel was convened on February 16, 2006, which answered their certificate unanimously in the affirmative. The Panel physicians were: Dr. Frederick Mansfield, an orthopedist; Dr. Mark Friedman, an internist; and, Dr. Thomas R. Sciascia, a neurologist. The Panel report of April 2, 2006 discussed how Officer Provenzano "was at work on March 29, 2004 when he was leaving a police station and he tripped, falling on his right knee." They acknowledged how he returned to work using crutches. They were aware of his MS diagnosis from about 1995, and that he had been doing "job duties that were mainly desk related work" at the time of the fall, using a cane to ambulate. The Panel were aware that he was found to have suffered a right knee meniscus tear from the fall, and that the pain from it was found not likely to improve with surgery. The Panel were aware that the MS condition had involved the "left lower extremity," and that the injury was to the good leg. By the time of the Panel evaluation, Officer Provenzano was using "a wheelchair on a regular basis," with "no independent capability of ambulation." The Panel opined the MS condition is what is disabling and that it is harder to accommodate now. The Panel opined the right knee injury might be the natural and proximate cause of the permanent disability since it was the right leg that had been relied upon by Officer Provenzano to be able to ambulate sufficiently to accomplish his limited police work, and he now had to be in a wheelchair. (Exs. 8 & 9)

15. The Arlington Retirement Board sent along its vote to the Public Employee Retirement Administration Commission (PERAC), to award accidental disability benefits to Officer Provenzano on August 3, 2006. (Ex. 10)

16. In response, PERAC remanded the case to the Arlington Retirement Board on September 15, 2006 based on insufficient proof that Officer Provenzano had been in the performance of his duties when he fell in the hallway at work. PERAC noted how in his incident report about the March 29, 2004 fall, that he wrote had he entered the hallway "at the completion of my shift" and was headed for the garage. (Ex. 11)

17. The Arlington Retirement Board sought further information from the Arlington Police Chief concerning Officer Provenzano's status at the time of his fall. Chief Frederick Ryan explained:
[O]n March 29, 2004 between the hours of 12:00p.m. to 8:00 p.m. Gary Provenzano was on his regular tour of duty as a police officer and it was during this tour of duty that he sustained the injury … During such time he was under the direct supervision of the department's command and subject to all the customary police policies regulating the on-duty functions and conduct of police officers which include, but are not limited to, the following:

- Compliance with all lawful orders … of superior officers;
- Faithful discharge of relevant essential functions of a
police officer as promulgated by the Human Resources
Division;
- To promptly report any on duty injuries to himself and/or
fellow officers; and,
- In good faith take necessary and appropriate action to
address any matter potentially compromising public
safety. (Ex. 7)

18. The Arlington Retirement Board also sought advice from its counsel about whether or not Officer Provenzano was in the performance of his duties at the time he fell. That opinion found no facts present to demonstrate any job performance Officer Provenzano was engaged in at the time even if he was still on duty and subject to his department's command and policies. The facts were presented as showing him going to his car to leave work for the day. The Board's counsel cited case law to support a determination that he had not shown a compensable G.L. c. 32, §7(1) personal injury in the performance of his duties. (Ex. 12)

19. Thereafter, by letter of decision of October 26, 2006, the Arlington Retirement Board voted to deny accidental disability benefits to Officer Provenzano. He was provided with his appeal rights and he filed a timely appeal. (Exs. 1 & 2)

20. By correspondence of April 5, 2007, Officer Provenzano petitioned the Arlington Retirement Board to reconsider its denial determination. He filed an affidavit setting forth an account of how he fell in the hallway when he was on his way to retrieve from his car the disc/cd that he was then going to return to his office. He noted how he began this trip to his car fifteen minutes earlier than the end of his shift, and that he was planning on making some notes on the case involving the surveillance video before ending his work day. He noted he had no recollection of turning off his computer before going to his car. He explained that he did not tell anyone about this intention to get the disc/cd and bring it back to the office to do more work on the case, since he had no supervision after 4:00 PM anyway, and that it was not uncommon for him to leave his office without reporting that to any superior. He noted how it was his practice to generally leave "ten to fifteen minutes" after the end of his shift. He noted he "was never asked … why … [he] was going to the garage when … [he] fell … so … [he] never had the opportunity to tell the Arlington Retirement Board the … facts." (Ex. 13)

21. The Arlington Retirement Board wrote to PERAC on May 9, 2007 about this new information from Officer Provenzano, and how the Board reconsidered this information at its April 26, 2007 meeting, but voted again to deny the claim for the same reason as the October 26, 2006 denial. The Board noted how one of the Board members found Officer Provenzano's new information to be credible to show he was in the performance of his duties. PERAC responded on June 8, 2007 that there was no reopening of Officer Provenzano's claim that PERAC was acknowledging in light of the outstanding appeal filed with the Contributory Retirement Appeal Board (CRAB), and that PERAC would not be reviewing the new facts Officer Provenzano presented. (Exs. 13, 14, 15 & 16)

Conclusion

I did not find Officer Provenzano's account provided after the denial of his claim by the Arlington Retirement Board, to be credible. I conclude he was not in the performance of his duties when he fell in the hallway on March 29, 2008. I conclude he was leaving for the day with his bag of papers to read at home, and was not intending to return to his office with the disc/cd and work further on the case relating to that surveillance video. I do not find credible that if he was all along intending to return from his car with the disc/cd to do more work in his office, that he would not have asserted this fact at some point before his claim was denied for not being in the performance of his duties. I do not find that he would have written in his incident report of the injury that he was leaving "at the completion of his shift" if he wasn't. (Ex. 6) I do not believe he would have repeated that account to his medical care providers if that was not the case. (Ex. 17) I do not believe he would have failed to mention he was not leaving for home to the Medical Panel physicians if he intended to return to his office. (Ex. 8) The findings made show this conclusion.


To find Officer Provenzano was not in the performance of his duties when he fell pursuant to the requirement for accidental disability benefits set forth in G.L. c. 32, §7(1), is supported by case law. If you are on your way to start work, or you are on your way home after stopping the work day, or if you are going to or coming back from lunch or another break, and you become injured, the case law finds you are not in the performance of your duties. This appears to be what Officer Provenzano came to be aware of. I do not have reason to doubt that he did have the disc/cd in his car and could have brought it back to the office and worked further on the case, and if he had, such facts would have satisfied the standard for being in the performance of his duties.
In Namvar v. CRAB, 422 Mass. 1004 (1996), a professor was returning from her lunch break in the school cafeteria when she fell and suffered an injury before reaching her office to hold scheduled office hours. The Court noted that if she had been performing a duty in the cafeteria and was on her way to start the office hours that she would have been found in the performance of her duties.
If the employee had been going from one place at
which she had an employment obligation to another
place, if she had had an employment duty at the cafeteria
(as well as at her office), or if she had been performing a
duty of her employment while walking to her office, the
result would be different. Id., at 1005

In Richard v. Worcester Retirement Board, 431 Mass. 163, 164-165 (2000), a public health nurse driving to her first appointment for the workday from her home and was injured in a car accident, was not found to be in the performance of her duties even though she received travel reimbursement for that travel time and even though she did not need to first come to work to check in before going to her first appointment for the workday. The Court relied on the reasoning of Namvar, supra.

In Saulnier v. CRAB, et al, Mass. App. Ct. #01-P-789 (3/10/03), a Correction Officer who was injured when she was in the parking lot checking on her car during the work day, was found not to be in the performance of her duties even though she had the permission to leave to check on her car from her supervisor and even though she maintained her radio contact.

Officer Provenzano may have been, as his Chief indicated, on duty and having to respond as called upon when he was in the hallway and fell. But, he was not on his way to have a fellow officer begin to take over his slot to end his work day. That was not a job duty he had to perform in this special assignment. Application of the prevailing case law to his circumstances shows that he was not in the performance of his duties when he fell.
For these reasons, the decision of the Arlington Retirement Board is affirmed.

SO ORDERED.


DIVISION OF ADMINISTRATIVE LAW APPEALS

Sarah H. Luick, Esq.
Administrative Magistrate


DATED: March 10, 2008


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