THE COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Paul D. Sweeney,

Petitioner

v. Docket No. CR-06-684

State Board of Retirement,

Respondent

Appearance for Petitioner:

Pro Se
48 Church Street
Bridgewater, MA 02324

Appearance for Respondent:

Melinda E. Troy, Esquire

Legal Department
State Board of Retirement
One Ashburton Place, RM 1219
Boston, MA 02108

Administrative Magistrate:

Judithann Burke

DECISION

The Petitioner, Paul D. Sweeney, is appealing from the September 29, 2006

decision of the Respondent, State Board of Retirement (SBR), the denial of the

application for involuntary Section 7 accidental disability retirement benefits filed on his

behalf by the Department of Correction (DOC). (Exhibit 1). The appeal was timely

filed. (Exhibit 2). A hearing was held on January 2, 2008 at the offices of the Division

of Administrative Law Appeals, 98 North Washington Street, Boston, MA.

At the hearing, the parties agreed that the appropriate resolution of this case is the

remand to an all new Medical Panel. No testimony was taken. Exhibits 1-9 were

marked. One (1) tape was made of the proceedings.

FINDINGS OF FACT

Based upon the documentary exhibits in this case, I hereby render the following

findings of fact:

1. The Petitioner, Paul D. Sweeney, d.o.b. 10/20/60, began employment as a

Correction Officer in the Department of Correction on February 26, 1984. He was

assigned to MCI Bridgewater State Hospital, the facility for the criminally insane. At

some point, the Petitioner was promoted to the position of Correction Officer II.

(Exhibits 3 and 4).

2. Page 5 of the written job description for the position of Correction Officer II

includes the following with regard to firearms:

Additional qualifications required at hire for Correction Officer II and
higher positions:

6. Knowledge of the safety practices and procedures followed in the use
of firearms.
7. Knowledge of the methods followed in the care and maintenance of
firearms.
11. Skill in the use of firearms.

(Exhibit 4).

3. The Massachusetts Human Resources Division posting for the position of

Correction Officer for those taking the open competitive examination provides the

following with regard to firearms:

Working Conditions: Correction Officers…are subject to injury from
firearms…

4. OTHER REQUIREMENTS AFTER PASSING THE WRITTEN EXAMINATION AND PRIOR TO AN APPOINTMENT:

Fire Arms Permit and Special State Police Commission- Certification
as a Correction Officer requires that the applicant be able to satisfy and
maintain the eligibility requirements for obtaining a license to carry a
firearm pursuant to Massachusetts General Laws, Chapter 140.

(Exhibit 9).

4. The Petitioner was required to be familiar with different categories of fire

arms, including pistols, revolvers and rifles. He had to undergo annual testing for

recertification.

5. On October 20, 2002, the Petitioner was involved in an on-duty altercation.

He attempted to restrain an inmate who had attacked another Correction Officer. He

sustained injuries to his neck, upper back and right knee. (Exhibits 3 and 4).

6. The Petitioner continued to complain of, and seek treatment for, pain in the

neck and right shoulder, and numbness down the right arm into the fingers. (Id.).

7. On March 2, 2006, the DOC filed an application for involuntary accidental

disability retirement on the Petitioner's behalf on the basis of disabling "left C6 and right

C8 radiculopathy". (Exhibit 3).

8. Regional Medical Panel Doctors Thomas Galvin, Ronald Rosenthal, and Lalit

Savla evaluated the Petitioner on July 27, 2006. They answered "no" to Question 1.

The Medical Panel had only two of the Petitioner's medical records at the time of

the evaluation. These were medical reports from Robert Pick, M.D. on August 5, 2004

and from Stanley Hom, M.D. on February 23, 2005. (Exhibits 6-8).

9. The Petitioner treated with his primary care doctor, Dr. Gagne, following the

October 2002 injury and he underwent several independent medical evaluations and

diagnostic studies. (Exhibits 3, 4 and 8).

10. Medical records that the Medical Panel did not have include: abnormal

April 11, 2003 and June 14, 2005 EMG studies; cervical MRIs from November 24, 2002

and March 23 2005; and, several reports following neurological evaluations in 2003,

2004, 2005 and early 2006. (Exhibit 8).

11. The Medical Panel did not discuss the physical requirements of the

Petitioner's job as a Correction Officer II in any detail, including the necessity that he be

proficient in the operation of fire arms and in methods of inmate restraint. (Exhibit 7).

DECISION

Both parties agree that the Petitioner is entitled to prevail in this appeal. He was

deprived of a proper Medical Panel evaluation.

The Panel Doctors did not demonstrate that they had a thorough understanding of

the Petitioner's job description or his medical history. The Panel made no reference to

the high risk, physically demanding job duties of a Correction Officer II at Bridgewater

State Hospital, which include regular physical altercations with inmates and annual

qualification in the use of myriad department-issue firearms.

Without the complete medical file, including all of the diagnostic reports and

neurological evaluations, and, without the ability to apply full knowledge of the

Petitioner's medical condition to the question of the Petitioner's ability to fulfill all of the

requirements of his job, the Panel could not perform its function properly. The Panel's

findings are null and void. See Malden Retirement Board v. CRAB, 1 Mass.App.Ct. 420

(1973) and Noone v. CRAB, 34 Mass.App.Ct. 756 (1993).


Accordingly, the decision of the SBR is reversed. This matter is remanded to said

board for the convening of an all new Medical Panel which will conduct a thorough

evaluation of the Petitioner and an exhaustive review of all of his pertinent pre-

July 27, 2006 medical records. The Medical Panel must have access to the correct,

complete job description of the Petitioner, including information on the inmate

population at Bridgewater and the requirement that he be certified in the use of fire arms.

So ordered.

Division of Administrative Law Appeals,

Judithann Burke
Administrative Magistrate

DATED: January 25, 2008


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