COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. Division of Administrative Law Appeals
v. Docket No. CR-05-923
Medford Retirement Board,
Appearance for Petitioner:
Harold Lichten, Esq.
Pyle Rome Lichten Ehrenberg & Liss-Riordan
18 Tremont Street
Boston, MA 02108
Appearance for Respondent:
Lane Hermann, Esq.
Law Offices of Michael Sacco
285 College Highway
PO Box 479
Southampton, MA 01073
Maria A. Imparato, Esq.
James Yarasitis filed a timely appeal under G. L. c. 32, s. 16 (4) of the September 13, 2005 decision, and the October 5, 2005 decision, of the Medford Retirement Board to deny the involuntary application for accidental disability retirement benefits filed on his behalf by Fire Chief Frank A. Gilberti, Jr. (Exs. 1, 2, 3, 4)
I held a hearing on December 18, 2007 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston. I admitted documents into evidence. (Exs. 1 - 39) I marked the Petitioner's pre-hearing memorandum "A" for identification, and the Respondent's pre-hearing memorandum "B" for identification. The Petitioner testified in his own behalf, as did Deputy Fire Chief Stephen Michael Howe. There is one tape cassette of the hearing.
FINDINGS OF FACT
1. James Yarasitis, d.o.b. 2/26/1946, worked for the City of Medford as a firefighter from March 1977 to August 13, 2004. He held the rank of Captain when he stopped working.
2. Mr. Yarasitis was assigned to an Engine Company. His duties as a Captain included the regular line duties of a firefighter. He was responsible to proceed to his assigned apparatus upon receipt of a call for service. He connected or hooked up the apparatus to a fire hydrant, operated pumps to supply water, advanced hose to the seat of fire or other hazard, operated ladders, performed ventilation, performed search and rescue, performed salvage and overhaul operations, returned equipment to the apparatus, and provided medical assistance. He was responsible for equipment and apparatus maintenance. (Testimony; Ex. 7, Captain Essential Tasks)
3. During the course of his employment Mr. Yarasitis sustained six injuries to his back prior to the events of August 13, 2004. On October 21, 1979 Mr. Yarasitis fell to the ground and injured his back when he was trying to open a hydrant. He sought medical attention on October 24, 1979 and was ordered to bed rest until October 29, 1979. (Testimony; Ex. 30)
4. On June 25, 1981 Mr. Yarasitis sustained an acute lumbosacral spine strain with left sided sciatica when he had to get off the engine sideways, which caused him to fall half-way to the ground. He sustained his injury while trying to break his fall. Mr. Yarasitis sought medical attention on July 31, 1981. He was provided medication and exercises and cleared to return to work unless the problem became more severe. (Testimony, Ex. 31)
5. On May 20, 1988 Mr. Yarasitis felt back pain when he lifted a victim from a bed to the floor in order to perform CPR. He did not lose any time from work (Testimony; Ex. 32)
6. On November 27, 1988 Mr. Yarasitis slipped on mud and sustained a lumbar strain while erecting a ladder. He remained on duty and sought medical attention the next day at Lawrence Memorial Hospital where he was prescribed bed rest, ice and Tylenol. (Testimony; Ex. 33)
7. On March 10, 1995 Mr. Yarasitis sustained a lower back strain when he moved a bed to check a wall inside the bedroom for fire extension of an outside fire. He sought medical attention on March 13, 1995, and again on March 22, 1995. He was advised to remain out of work from March 22 - 29, 1995. (Testimony; Ex. 34)
8. On September 26, 1999 Mr. Yarasitis suffered a left low back muscular strain when he lifted a metal grate weighing 100 pounds to clean out brush. He sought medical attention that day. He was diagnosed with a pulled muscle and spasm, and was prescribed ice and Motrin. He missed two days of work. (Testimony; Ex. 35; Ex. 22, 9/26/1999)
9. On August 13, 2004 Mr. Yarasitis was the Captain on Engine 4 for fire suppression. He rode in the front passenger seat of the truck, sitting forward with an air tank on his back. He was dressed in full turn-out gear comprising a helmet; a jacket with a mask and flashlight attached; bunker pants; and firefighting boots with 1 ½ inch heels. In his pocket he carried a hose wrench, wedges and tools. This gear weighed about 35 pounds. (Testimony)
10. On August 13, 2004 Engine 4 was called to the scene of a car fire. Mr. Yarasitis overhauled the back seat of the car. This entailed digging out the carpet and cutting the seat with a carpet knife. Mr. Yarasitis had to lean into the car, kneel and bend to accomplish this task. He felt slight pain in his back. (Testimony)
11. Several hours later Engine 4 was called to the scene of a motor vehicle accident. Mr. Yarasitis did not have to perform any work at the scene, and Engine 4 returned to the station. (Testimony)
12. When Engine 4 returned to the station, Mr. Yarasitis, in one fluid motion, jumped out of the front passenger seat while the engine was rolling by holding onto the rail on the dashboard, descended two 20-inch steps at a 45 degree angle, and landed on the ground in order to direct traffic as the engine backed into the station. Mr. Yarasitis felt pain in his back when he landed on the ground. (Testimony, Ex. 8)
13. Mr. Yarasitis applied ice to his back at the station. His back pain continued to increase and radiated down his right leg. Deputy Chief Stephen Howe took Mr. Yarasitis to Lawrence Memorial Hospital Emergency Room where he was diagnosed with lumbar strain and spasm and prescribed Vicodin, Valium and Motrin. (Testimony, Ex. 36)
14. Dr. Abraham Shurland, an orthopedic surgeon, evaluated Mr. Yarasitis on August 25, 2004. Dr. Shurland noted that Mr. Yarasitis experienced the acute onset of back pain while working. "There was no traumatic event." Dr. Shurland reviewed x-rays from the emergency room that revealed mild arthritic changes. He recommended physical therapy and an MRI. (Ex. 20, 8/25/04)
15. An MRI on September 11, 2004 revealed disc degeneration at T11-12 and at the three caudal lumbar interspaces, with a small midline L4-5 disc herniation or degenerative annulus bulge with minimal canal encroachment. (Ex. 28)
16. At a follow-up visit on September 16, 2004 Dr. Shurland noted that Mr. Yarasitis was in physical therapy twice a week. Dr. Shurland extended the physical therapy prescription for four additional weeks and prescribed an anti-inflammatory. (Ex. 20, 9/16/04; Ex. 29)
17. On October 28, 2004 Dr. Shurland referred Mr. Yarasitis to Spaulding Rehab for a back evaluation because his continuing back pain was making it difficult for Mr. Yarasitis to be as active as he wished to be. (Ex. 20, 10/28/04)
18. On November 1, 2004 Alec Meleger, MD, evaluated Mr. Yarasitis at Spaulding Rehab. He noted Mr. Yarasitis's complaint of right sided lower lumbar regional pain with radiation to the right anterior thigh, exacerbated by walking up stairs and sitting. Dr. Meleger recommended a trial of lumbar facet joint injections into the right L3-4, L4-5 and L5-S1 facet joints. Mr. Yarasitis declined the suggestion and asked to be referred to chiropractic treatment. (Ex. 23, 11/1/04)
19. At Mr. Yarasitis's visit on December 13, 2004, Dr. Shurland recommended a work hardening program to try to "strengthen him up and get him ready for a return to work." (Ex. 20, 12/13/04)
20. Mr. Yarasitis received chiropractic adjustments by William W. Girouard, DC, but continued to experience lumbar pain and hesitance in moving, walking and bending. By letter of December 20, 2004 Dr. Girouard recommended additional chiropractic treatment. (Ex. 26)
21. On December 27, 2004 Mr. Yarasitis underwent a Functional Capacity Evaluation at Spaulding Rehab. Mr. Yarasitis did not "demonstrate functional capacities adequate to perform full duty work as a Fire Captain at this time," although he was deemed to have given full effort during the evaluation. He performed in a light to medium level of physical demand with respect to load handling, but his job required a medium to very heavy level of physical demand. A work hardening program was recommended by the physical therapist. (Ex. 24)
22. Mr. Yarasitis began work hardening at Spaulding Rehab on January 3, 2005 which included stretching, strengthening, cardiovascular conditioning and work simulation. He suffered a severe increase in back pain on January 13, 2005 when he sneezed. The program was put on hold on January 21, 2005 pending the outcome of facet joint injections performed on February 8, 2005. By February 22, 2005 Mr. Yarastitis's pain had returned to its pre-injection level. On February 25, 2005 Mr. Yarasitis was discharged from work hardening "secondary to an inability to progress to functional work levels due to marked increased pain." (Exs. 23, 2/22/05; Ex. 25, 2/25/05)
23. By letter of March 17, 2005 Fire Chief Frank A. Giliberti, Jr. requested information from Dr. Shurland about whether Mr. Yarasitis would be able to return to his position of Fire Captain. Dr. Shurland indicated that Mr. Yarasitis suffered from low back pain, that he planned to have Mr. Yarasitis have another epidural injection, and that he planned to prescribe a lumbar corset. Dr. Shurland indicated that the expected medical outcome of his plan was unknown. (Ex. 21, 3/17/05)
24. By letter of March 29, 2005 Dr. Meleger informed Dr. Shurland that Mr. Yarasitis had obtained two days of relief from his facet injection. He suggested radiofrequency ablation of the lumbar facet joints. (Ex. 23, 3/29/05)
25. On May 9, 2005 Chief Giliberti filed an involuntary application for accidental disability retirement benefits on behalf of Mr. Yarasitis, together with Mr. Yarasitis's acceptance of the application and waiver of a hearing before the retirement board. (Ex. 7)
26. A regional medical panel composed of Drs. Frederick Mansfield, Mark Friedman and Thomas Sciascia convened on July 7, 2005 to evaluate Mr. Yarasitis. Dr. Mansfield is an orthopedic surgeon. Dr. Friedman is an internist. Dr. Sciascia is a neurologist. (Ex. 12, Board of Registration in Medicine website)
27. The panel answered in the affirmative to all certificate questions. (Ex. 12)
28. The panel summarized Mr. Yarasitis's treatment, and noted his symptoms of back pain and right buttock pain that radiated down his posterior thigh to his knee. Physical examination revealed tenderness in the right iliolumbar angle, forward bending to 60 degrees with right posterior thigh pain, backward bending to 10 degrees with right low back pain, and bilateral lateral bending to 20 degrees with discomfort. Ankle jerks were absent. (Ex. 12)
29. The panel noted that Mr. Yarasitis said that "his back pain prevents him from carrying the firefighter's protective equipment and from pulling hoses and lifting heavy equipment, as would be required as part of his job." (Ex. 12)
30. The panel concluded that Mr. Yarasitis was physically incapable of performing the essential duties of his job, and that the incapacity is likely to be permanent "since it has persisted from 8/13/04 to the present." (Ex. 12)
31. The panel opined that the incapacity is such as might be the natural and proximate result of the personal injury sustained on August 13, 2004. "This injury probably represented an aggravation of an underlying condition of lumbar disk degeneration." (Ex. 12)
32. On July 26, 2005 the Board voted to allow Mr. Yarasitis's application for accidental disability retirement benefits, and forwarded its decision to the Public Employee Retirement Administration Commission (PERAC) for approval. (Ex. 13)
33. By letter of August 31, 2005 PERAC remanded the matter to the Board as unsupported by substantial evidence because stepping off of a fire truck is deemed to be a common movement done frequently by many people both in an out of work. PERAC asked the Board to review the situation to determine whether there was in fact an injury sustained, and to determine whether the situation could be distinguished from the case of Ouellet v. Lowell Retirement Board, CR-97-1796 (DALA dec. 7/31/1998, no CRAB dec.) (Ex. 14)
34. On September 13, 2005 the Board informed Mr. Yarasitis and Chief Giliberti that it agreed with PERAC and was denying the application for accidental disability retirement benefits. (Exs. 1, 13) Mr. Yarasitis appealed. (Ex. 2)
35. By letter of September 28, 2005 the Board requested that PERAC rescind the Board's denial because the Board was going to hold a special meeting on October 4, 2005 to review additional documentation submitted by Mr. Yarasitis. (Ex. 16)
36. By letter of September 28, 2005 the Board acknowledged receipt of Chief Giliberti's involuntary application for superannuation retirement on behalf of Mr. Yarasitis. The Board declared its intention to table the application until its meeting on October 4, 2005. (Ex. 17)
37. On October 5, 2005 the Board voted to deny the involuntary application for accidental disability retirement benefits, and to accept the involuntary application for superannuation retirement. (Exs. 3, 18) Mr. Yarasitis appealed. (Ex. 4)
CONCLUSION AND ORDER
The decision of the Medford Retirement Board is reversed. The Board shall award accidental disability retirement benefits to James Yarasitis. The Petitioner did suffer a personal injury on August 13, 2004 when he jumped down from a moving fire truck and felt pain in his lower back. Jumping down two 20-inch steps, dressed in 35 pounds of turn-out gear, while the fire truck was rolling to a stop is not a job duty "involving common movements done frequently by many humans both in and out of work." Injury caused by a common movement would not be sufficient to establish entitlement under G. L. c. 32, s. 7 (1). Adams v. CRAB, 414 Mass. 360, 609 N.E.2d 62, 66 (1993).
This case is distinguishable from the case of Ouellet v. Lowell Retirement Board, CR-97-1796 (DALA dec. 7/31/1998; no CRAB dec.) where a firefighter claimed to need a hip replacement as a result of "stepping off" of a fire truck which aggravated his pre-existing osteoarthritis of the left hip. He did not describe any trauma. Five years later the firefighter needed a total replacement of the new hip, claiming that the revision was necessary because of a fall he suffered at work.
The medical panel in Ouellet concluded that the first hip replacement was as a result of the firefighter's degenerative arthritis of the hip, and not as a result of stepping off the fire truck. The panel concluded that the second hip replacement was the result of natural degeneration and complications of the type of procedure used to insert the first new hip.
In the instant case, the Petitioner described in detail the maneuver that he needed to use in order to get off of a rolling fire truck. He did not merely "step off" the truck. The Petitioner described immediate trauma after hitting the ground, needed to ice his back, and soon after required a visit to the Emergency Room. He has not been able to return to work since. Furthermore, the instant medical panel (which is the same medical panel convened in Ouellet), concluded that the injury of August 13, 2004 aggravated to the point of total and permanent disability the Petitioner's pre-existing degenerative disk disease. There is no basis on which to conclude that the panel employed an erroneous standard to reach this conclusion with respect to causation. The panel reviewed medical records and a job description, took a history, performed a physical examination and considered and accepted the aggravation theory of causation. The Petitioner has therefore met his burden of proof with respect to causation by demonstrating that his disabling degenerative disk disease was aggravated to the point of permanent disability by a work-related event. See, Blanchette v. CRAB, 20 Mass. App. Ct. 479, 481 N.E.2d 216, 220 (1985); Baruffaldi v. CRAB, 337 Mass. 495, 150 N.E.2d 269, 271 (1958).
The Board shall award accidental disability retirement benefits to the Petitioner.
DIVISION OF ADMINISTRATIVE LAW APPEALS
Maria A. Imparato
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