COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Milton Shoemaker,

Petitioner

v. Docket No. CR-02-104

Boston Retirement Board,

Respondent

Appearance for Petitioner:

William M. Batty, Jr., Esq.

41 North Road, Suite 205
Bedford, MA 01730

Appearance for Respondent:

Nicholas Poser, Esq.

197 Portland Street
Boston, MA 02114

Administrative Magistrate:

Maria A. Imparato, Esq.

DECISION

The Petitioner, Milton Shoemaker, appealed timely under G. L. c. 32, s. 16 (4) the January 30, 2002 decision of the Respondent, Boston Retirement Board ("Board"), to deny his request for accidental disability retirement benefits. (Exs. 1, 2)

I held a hearing on January 14, 2003 at the office of the Division of Administrative Law Appeals, 133 Portland Street, Boston. I admitted documents into evidence. (Exs. 1 - 32) I marked the Petitioner's pre-trial memorandum "A" for identification. The Petitioner testified on his own behalf.

I take administrative notice of a prior decision in this matter in case CR-99-719, issued on August 21, 2000, in which the magistrate remanded the case to the Board to convene a new medical panel to examine the Petitioner. The sufficiency of the new medical panel report is the subject of this appeal.

FINDINGS OF FACT

1. Milton Shoemaker, d.o.b. 5/15/1933, worked for the City of Boston as a Highway Maintenance Inspector from 1982 to December 31, 1996, when he retired for superannuation under the Early Retirement Incentive program created by St. 1996, c. 311.

2. Mr. Shoemaker's duties included driving a truck, picking up trash on the sidewalk, loading it onto the truck, and taking it to the City dump for disposal.
The "inspector" part of Mr. Shoemaker's job entailed checking to see whether contractors who were digging in the streets had the necessary permits to dig. He also looked for potholes. (Testimony)

3. Mr. Shoemaker suffered a variety of injuries to his back. In 1963 he was in a motor vehicle accident that caused disc herniations at two levels. He underwent posterior discectomy and decompression with spinal fusion at L4 through the sacrum. He was able to return to normal activities. (Ex.4)

4. In 1986 Mr. Shoemaker bent over to pick up something and felt a sharp pain in his back and leg. He saw Dr. Leahy and returned to work after one week of bed rest. (Testimony)

5. In 1992 Mr. Shoemaker again bent over to pick up something when he felt pain in his back and leg. He was out of work from September 29th to October 14, 1992. (Ex. 12, Testimony)

6. On July 5, 1996 Mr. Shoemaker picked up a heavy barrel to empty it when he felt a sharp pain in his back. He went to the yard to report the incident and fill out an accident report. On July 23, 1996 he filed an Employer's First Report of Injury. (Testimony, Ex. 13)

7. Mr. Shoemaker came under the care of Dr. Susan Racine on July 8, 1996.X-rays revealed degenerative disc disease. Dr. Racine advised Mr. Shoemaker to remain out of work. (Exs. 14, 15)

8. Two weeks later, Dr. Racine started Mr. Shoemaker on a course of physical therapy three times a week at Occupational Health and Rehabilitation in South Boston. The therapy helped Mr. Shoemaker's back, but caused pain in his right shoulder and neck. He was discharged from physical therapy on September 16, 1996. (Ex. 15)

9. On October 8, 1996, Dr. Steven Sewall, an orthopedic surgeon, evaluated Mr. Shoemaker for purposes of Workers' Compensation. Dr. Sewall noted Mr. Shoemaker's complaint of pain in the right shoulder area into the neck, without numbness or weakness in the upper extremities, and episodes of double and triple vision. (Ex. 15)

10. Dr. Sewall's physical examination of Mr. Shoemaker revealed minimal tenderness over the left sacroiliac joint region, no muscle spasm, and no atrophy in the lower extremities. He had good range of motion of his back in all directions, and could perform straight leg raising to 70 degrees, bilaterally. The reflexes, strength and range of motion of the lower extremities were all intact, with mild decreased sensation over the toes of the right foot, and over the calves of the left leg. Mr. Shoemaker's neck was tender on both sides, with decreased extension and neck rotation in both directions. (Ex. 15)

11. Dr. Sewall diagnosed a flare up of degenerative disc disease in the back, with a flare up of some cervical spondylosis secondary to physical therapy. Dr. Sewall concluded that Mr. Shoemaker had reached an end result and could return to work as a laborer for the City. (Ex. 15)

12. Mr. Shoemaker's Workers' Compensation benefits stopped, and the City ordered him back to work. Mr. Shoemaker did not think that he would be able to perform the lifting duties of his job. (Testimony)

13. On October 21, 1996, Mr. Shoemaker applied for the Early Retirement Incentive, requesting a retirement date of December 31, 1996. His supervisor suggested retirement to him. (Ex. 30, Testimony))

14. On October 24, 1996, Dr. Racine's colleague, Dr. Laura T. Cloukey, cleared Mr. Shoemaker to return to work on October 27, 1996 "with restrictions as follows - no lifting, driving only - he will be re-evaluated by me in 2 wks." (Ex. 16)

15. Mr. Shoemaker does not recall being re-evaluated in two weeks. (Testimony)

16. Mr. Shoemaker returned to work on October 27, 1996 to a light duty job comprising only the "inspector" part of his job, that is, driving a truck looking for potholes and making sure contractors digging in the streets had appropriate permits. He had to stop the truck often and get out and walk around in order to cope with the pain in his back and left leg. He took aspirin. (Testimony)

17. Mr. Shoemaker had no medical care from the date he returned to work until his retirement for superannuation on December 31, 1996. (Testimony)

18. On or about March 14, 1997, Mr. Shoemaker bent to pick up a snow shovel in anticipation of shoveling the walk with his son when he felt excruciating pain radiating across his back. He was evaluated at Occupational Health and Rehabilitation, Inc. on March 20, 1997 for pain in his left hip that radiated down his left leg, with numbness in the lateral portion of his left calf. Dr. Barbara Rockett suspected a herniated disc, and referred Mr. Shoemaker back to his primary care doctor. (Ex. 17)

19. Dr. John F. Mahoney, a neurologist, evaluated Mr. Shoemaker on May 28, 1997 at the request of Mr. Shoemaker's attorney. Dr. Mahoney reported that a CT scan performed on March 27, 1997 revealed significant spinal stenosis at the L3-4 level, and possibly to a lesser degree at L5-S1. EMG testing on May 28, 1997 showed evidence of active acute denervation in the left L4 distribution as well as aspects of chronic denervation in the left L3 and L4 distribution. He concluded that Mr. Shoemaker is totally and permanently disabled from "any form of gainful employment [and] is a direct outgrowth of cumulative work injury to his back and primarily provoked by that July, 1996 work injury." (Ex. 18)

20. Dr. Bradford Selland, a neurosurgeon evaluated Mr. Shoemaker on July 29, 1997. After a CT scan and a lumbar myelogram on August 1, 1997 that demonstrated spinal stenosis at L3-4, Dr. Selland recommended that Mr. Shoemaker undergo decompressive lumbar laminectomy at L3-L4, bilateral and complete, "given the progressive nature of his weakness and numbness." (Exs. 19, 20, 21, 22)

21. On September 25, 1997, Dr. Selland performed decompressive lumbar laminectomy L3-L4 bilateral and complete with bilateral L3-L4 foraminotomies. (Ex. 23)

22. On November 4, 1997, Mr. Shoemaker's Workers' Compensation case was settled by lump-sum agreement. Liability was not established. The insurer agreed to pay all outstanding reasonable and related medical bills incurred as of that date. (Ex. 25)

23. Lumbar myelogram and CT scan performed on October 13, 1998 revealed central spinal stenosis and narrowing of the lateral recess opposite L2-3 level, a small intradural lipoma opposite the level of L-2, with no evidence of disc herniation or focal obliteration of the nerve roots. (Ex. 26)

24. On October 27, 1998, Mr. Shoemaker filed an application for accidental disability retirement benefits citing spinal stenosis as a result of injuries to his back in 1992, 1994 and July 5, 1996. (Ex. 3)

25. Dr. Susan Racine filed a statement in support of the application, answering all certificate questions in the affirmative. She diagnosed spinal stenosis that prevents Mr. Shoemaker from driving for more than 15 minutes without pain, and prevents him from heavy lifting. With respect to causation, she opined, "probably the [patient's] work related injury and his underlying condition [of spinal stenosis and past lumbar fusion] were both equally responsible for his symptoms." She noted that the onset of Mr. Shoemaker's pain was related to heavy lifting on July 5, 1996. (Ex. 7)

26. A single-physician regional medical panel examined Mr. Shoemaker in November and December 2000. The panel was composed of Drs. Douglas Howard, George Hazel and John Groves, all of who are board-certified in orthopedic surgery. (Exs. 4, 5, 6, Board of Registration in Medicine website)

27. Dr. Howard answered in the affirmative to disability and permanence, and in the negative to causation. Drs. Hazel and Groves answered in the affirmative to all certificate questions. (Exs. 4, 5, 6)

DR. HOWARD

28. Dr. Howard examined Mr. Shoemaker on November 21, 2000. He diagnosed degenerative osteoarthritis of the lumbar spine, status post disc herniation and decompression with spinal fusion 1963, and spinal stenosis with decompression in 1997, ongoing degenerative changes in the lumbar spine, and degenerative changes in the cervical spine. (Ex. 4)

29. Dr. Howard opined that Mr. Shoemaker is permanently unable to perform the duties of his job, but that the disability is not causally related to the injury of July 5, 1996. He opined that the July 5, 1996 injury was a lumbosacral spine strain that had resolved by September 1996. (Ex. 4)

30. Dr. Howard opined that Mr. Shoemaker had asymptomatic spinal stenosis for a period of years, and that bending over to pick up a snow shovel in March 1997 "resulted in the pre-existing spinal stenosis becoming symptomatic and requiring surgical intervention." (Ex. 4)

31. Dr. Howard opined that the spinal stenosis is not causally related to Mr. Shoemaker's employment, nor is it the result of multiple back injuries, nor is it causally related to a traumatic event or recurrent traumatic event. He opined that the spinal stenosis is "a spontaneous development with the aging process in his lumbar spine." (Ex. 4)

DR. HAZEL

32. Dr. Hazel examined Mr. Shoemaker on November 28, 2000. He diagnosed post-laminectomy disc excision L4-5, S1 in 1963, decompressive lumbar laminectomy L3-4, bilateral, complete, and bilateral L3-4 foraminotomies for lumbar stenosis L3-4 in September 1997. (Ex. 5)

33. Dr. Hazel opined that Mr. Shoemaker's spinal stenosis is related to his previous surgeries and to the injuries that have occurred between 1963 and 1996. He opined that injuries in 1982, 1986 and 1996 aggravated the pre-existing condition, and "each successive injury had an accumulative effect of the total picture of disability." (Ex. 5)

DR. GROVES

34. Dr. Groves examined Mr. Shoemaker on December 13, 2000. He diagnosed a lumbosacral spine strain with intervertebral disc disease and spinal stenosis. He opined that Mr. Shoemaker is permanently unable to perform the duties of his job. (Ex. 6)

35. Dr. Groves opined, "[T]he back strain and intervertebral disc disease that occurred in July of 1996 significantly aggravated the underlying spinal stenosis and contributed in a major part to his present disability. In addition he had a further injury in March of 1997 which aggravated a pre-existing injury that occurred on July 5, 1996 while he was at work. …[T]he injury that he sustained in March of 1997 aggravated the underlying condition that he developed as a result of lifting at work in the line of duty in July of 1996." (Ex. 6)

36. On July 23, 2001, the Board held a hearing and concluded that Mr. Shoemaker was not entitled to accidental disability retirement benefits because he had not established that he was permanently disabled on his last day of work on December 31, 1996, and he was not permanently disabled until a non-job related incident in March 1997. (Ex. 2, attachment)

CONCLUSION AND ORDER

The Boston Retirement Board shall award accidental disability retirement benefits to Milton Shoemaker.

In order to qualify for an award of accidental disability retirement benefits, the Petitioner must demonstrate that he is totally and permanently unable to perform the essential functions of his job as the proximate result of a personal injury sustained or hazard undergone, as a result of, and while in the performance of his duties, at some definite place and at some definite time. G. L. c. 32, s. 7 (1) In order to meet his burden, the Petitioner must prove one of two hypotheses: that his disability was caused by a single or series of work related events, or that his employment exposed him to an "identifiable condition … that is not common and necessary to all or a great many occupations" that resulted in disability through gradual deterioration. Blanchette v. CRAB, 20 Mass. App. Ct. 479, 481 N.E>2d 216 220 (1985). Aggravation of a pre-existing condition to the point of permanent disability satisfies the natural and proximate requirement. Baruffaldi v. CRAB, 337 Mass. 495, 150 N.E.2d 269, 271 (1958).

The Petitioner has met his burden.

Since disability is the inability to perform the essential duties of one's job, the record demonstrates that the Petitioner was disabled by one work-related event: he picked up a heavy barrel on July 6, 1996. The Petitioner was unable to perform the essential duties of his job after that date. When the Petitioner returned to work in October 1996, he did not return to the full duties of a Highway Maintenance Inspector. He was unable to perform the lifting duties of his job. He was only able to perform the "inspector" duties that required driving. He took the early retirement suggested to him by his supervisor and retired on December 31, 1996, while he was disabled.

In order to succeed on his application, the Petitioner must be examined by a regional medical panel certifies that he is physically incapacitated for further duty and that the disability is such as "might be the natural and proximate result of the accident or hazard undergone." G. L. c. 32, s. 6 (3) (a). The Petitioner bears the burden of proof to establish a causal nexus between his injury and his disability. Campbell v. CRAB, 17 Mass. App. Ct. 1018, 460 N.E.2d 213 (1984). Certification by a majority of the medical panel that the disability might be the natural and proximate result of an injury sustained while in the performance of one's duties is not conclusive, but is only some evidence to be considered. Mathewson v. CRAB, 335 Mass. 610, 141 N.E.2d 522 (1957); Wakefield Retirement Board v. CRAB, 352 Mass. 499, 226 N.E.2d 245 (1967).

The final determination on the issue of causation is for CRAB, "based on the facts found and all the underlying evidence, including both the medical and non-medical facts." Blanchette, 481 N.E.2d at 219.

The record of medical and non-medical facts supports the conclusion of a majority of the panel (Drs. Hazel and Groves) that the Petitioner's disabling spinal stenosis might be the natural and proximate result of the lifting injury of July 5, 1996 because the event aggravated his pre-existing asymptomatic spinal stenosis into a symptomatic and disabling condition.

Prior to July 5, 1996 the Petitioner was able to perform all the duties of a Highway Maintenance Inspector. After that date, he was only able to perform half of the essential duties of his job; he was able to drive and inspect, but he was not able to lift. After retirement, the Petitioner's condition apparently deteriorated until March 7, 1997 when he bent over, felt excruciating pain and eventually required surgery. The fact that the Petitioner has already retired does not prevent the Petitioner from filing for accidental disability retirement benefits because it is the Petitioner's status as a member-in-service at the time of the injury that determines eligibility under G. L. c. 32, s. 7 (1). State Retirement Board v. CRAB, 12 Mass. App. Ct. 306, 423 N.E.2d 1046 (1981).

The Petitioner's claim is not barred by the reasoning in the Vest case because the Petitioner had an established disability at the time he separated from public service on December 31, 1996. Vest v. CRAB, 41 Mass. App. Ct. 191, 668 N.E.2d 1356 (1996).

The Board shall award accidental disability retirement benefits to the Petitioner.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Maria A. Imparato, Esq.
First Administrative Magistrate

DATED: January 30, 2003


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