COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. Division of Administrative Law Appeals
v. Docket No. CR-06-831
Plymouth Retirement Board,
Appearance for Petitioner:
Robert Deubel, Esq.
Law Offices of Deborah G. Kohl
191 Bedford Street
Fall River, MA 02720
Appearance for Respondent:
Michael Sacco, Esq.
285 College Highway
P.O. Box 479
Southampton, MA 01073-0479
Sarah H. Luick, Esq.
Pursuant to G.L. c. 32, §16(4), the Petitioner, Paul Balboni, is appealing the November 1, 2006 decision of the Respondent, Plymouth Retirement Board, denying his request for accidental disability retirement benefits. (Ex. 2) The appeal was timely filed. (Ex. 1) A hearing was held November 28, 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 - 26) The parties entered into some stipulations of fact. ("A") Two tapes were used. The Petitioner testified. Both parties made arguments on the record which closed December 12, 2008.
FINDINGS OF FACT
1. Paul Balboni, d.o.b. 1/21/52, worked for the Town of Duxbury from September 1992 - November 2003. Thereafter, he began work in November 2003 for the Town of Plymouth within the Department of Public Works as the Operations or Highway Superintendent. ("A". Exs. 3 & 4. Testimony)
2. The Operations or Highway Superintendent position performs administrative and supervisory work of planning, directing, and managing work for the Highway Department. The position works under the direction of the Director of Public Works. The job involves high level responsible functioning with "access to department-related confidential information." Expected is an ability to "exercise of considerable independent judgment in planning and inspecting the construction of highway projects and in determining the scope and scheduling of maintenance projects." When Mr. Balboni performed the job he supervised about 32 full time employees. He had to work outdoors, and had "frequent exposure to hazards associated with heavy equipment construction sites." He had to drive to various job sites. He used a computer and other standard office equipment when in the office. He had "constant contact with the general public and … frequent contact with other town officials, as well as utilities and private contractors." He had in person, telephone, or written discussions regarding "complex information." He had to resolve "difficult customer service requests." The work covered "three districts." He had to supervise personnel engaged in highway emergency and snow removal operations. He supervised the cleaning of streets, catch basins, culverts, drains, outfalls, and manholes. He supervised the construction and repair of bridges. He had to plan, schedule and supervise pavement markings, installation of traffic signs, and he had to supervise trash pick-up operations. He worked on highway budgetary issues. He had to do project coordination work. He had to be able to engage in moderate physical efforts such as pushing, pulling, carrying and lifting on occasion, "objects weighing up to 30 pounds." He had to sometimes "lift heavy objects and … occasionally perform some strenuous work under varying weather conditions." He had to be able "to walk and stand for long periods of time." This work also involved being on call twenty-four hours a day for emergencies. (Exs. 3, 5 & 26. Testimony)
3. In July 1995, Mr. Balboni was hospitalized to rule out a stroke. He had suffered a "TIA, a PFO and hyperlipidemia." He had no further TIAs. In or around 1998, he underwent a splenectomy. He was hospitalized in August 2002 "for a penetrating wound of the plantar aspect of his foot." He was treated "with IV antibiotics," and had a "surgical debreavement." He did well after that. He has been diagnosed with hypertension, high cholesterol, high triglycerides, and gout. He takes Coumadin medication which prevents taking some anti-inflammatory drugs. During the fall 2004, he was complaining to his primary care physician, Dr. David Z. Grace, of stress at work and of left shoulder discomfort. (Exs. 3, 12, 16, 18, 19, 20, 21 & 22)
4. On December 21, 2004, Mr. Balboni was at work to address ongoing snow storm and plowing/sanding roadway matters. He had been working without time off from the prior day. He was going to various Town locations such as important traffic intersections, schools, certain hilly roads, the police and fire stations, and the downtown roads. At about 10:00 AM, he was in the parking lot at his office standing near his car. He was on his way to his office after doing some site visits because he wanted to learn if new calls had come in for him to visit more sites. He then saw one of the sander truck drivers he needed to talk to about roadway issues. He began to signal and walk toward the moving truck to flag down the driver, when he slipped and fell to the ground, hitting his left side. He got up and then immediately slipped again and fell again onto the ground. He likely hit his head and landed on his back. He may have temporarily lost consciousness. He felt disoriented. He called out for help and began crawling on his hands and knees to the office. At the doorway, he rose to his feet and entered. ("A". Exs. 3, 5 & 8. Testimony)
5. Mr. Balboni told his secretary he had fallen. His back side was covered in snow. Because he had a crew at a job site waiting for him, he decided to go there first before being checked out at the hospital emergency room. While in the office he put his left arm behind his neck to relieve pain he had. His whole back, neck, and extremities felt sore. Mr. Balboni did not leave his car as he usually would have once he reached the crew. After that meeting, he drove to the Jordan Hospital Emergency Room. A notice of injury report was filed with his employer. (Exs. 3, 5 & 8. Testimony)
6. At the hospital, Mr. Balboni reported he fell on ice and may have lost consciousness for awhile. He reported "some pain in his left shoulder, neck and hip." He reported some left knee tenderness. He had x-rays done on the pelvis, lumbosacral spine, left knee, and left shoulder. He had lab work done. He was admitted for observation. He had a head CT scan that was normal. He was evaluated by Dr. Joseph F. Zabilski, an orthopedist, for left shoulder pain. By x-ray, he had no "fracture or bony abnormalities." Dr. Zabilski opined he had "rotator cuff tendonitis," and was prescribed a sling and Vicodin medication for pain. Dr. Zabilski could not rule out an occult fracture. (Exs. 9, 12 & 17. Testimony)
7. Mr. Balboni stayed out from work. He was followed by Dr. Grace. Mr. Balboni had more testing done. He had a lumbar spine MRI on January 12, 2005 that was normal but for "a minor facet arthropathy." He had a left shoulder MRI on January 22, 2005,
showing a linear area of high T2 signal within the superior aspect of the rotator cuff which may represent a partial intrasubstance tear … [no] definite evidence of full thickness tear … otherwise essentially unremarkable …. (Ex. 13)
Mr. Balboni had a thoracic spine MRI on January 28, 2005 revealing, "degenerative findings … [and] a tiny central bulge or contained herniation at T7-8 without evidence of neural impingement." He had a cervical spine MRI on February 26, 2005 showing; "No evidence of disc protrusion or herniation." Another head CT scan on March 7, 2005 was normal. (Exs. 3, 5, 13 & 16. Testimony)
8. Mr. Balboni was prescribed physical therapy with conservative measures for his pain complaints. He had this between January 25 and February 14, 2005. His spine at T6-8 was found to be "hypersensitive" to light pressure. His left shoulder had clinical symptoms consistent with a rotator cuff condition. The treatments ended because Mr. Balboni had not experienced much symptom relief. (Ex. 14. Testimony)
9. Dr. Alan R. Murphy, a neurosurgeon, evaluated Mr. Balboni on February 28, 2005. He opined Mr. Balboni had, "cervicalgia with right hemi-hypalgesia without cear-cut compression of the spinal cord or exiting nerve roots or cauda equine." He also found a left rotator cuff tear and a lumbar strain. He recommended "a directed rehabilitation program." (Ex. 18)
10. Mr. Balboni was evaluated on March 4, 2005 by Dr. DeWitt Brown, an orthopedic surgeon. Dr. Brown had the MRI results and found a left shoulder rotator cuff tear. He found the MRIs of the neck, thoracic spine, and lumbar spine to all be "within normal limits." By physical examination he detected most of Mr. Balboni's "discomfort" was "about the left side of his low interscapular area." (Ex. 19)
11. Dr. Zabilski saw Mr. Balboni for follow-ups on January 7 and March 9, 2006. He diagnosed a "traumatic left shoulder rotator cuff tendonitis, and inter-scapular right shoulder and back pain." He found the films of the thoracic spine revealed, "mild degenerative scoliosis of the upper thoracic spine with the apex in the region of the interscapular back pain." He found Mr. Balboni's examination to be "consistent with inter-scapular back pain as well as traumatic rotator cuff tendonitis." He recommended a cortisone injection for the shoulder condition. By an April 6, 2005 evaluation, Dr. Zabilski opined Mr. Balboni was doing well and could "return to full, non-restricted work activities." By his April 4, 2005 visit, Mr. Balboni's right paraspinal pain had diminished to permit a return to work. (Exs. 17 & 20)
12. As late as March 25, 2005, Dr. Grace found Mr. Balboni unable to return to work. He then changed his mind to find him able to return to work part-time starting April 4, 2005. He cleared him to gradually reach full-time work after April 18, 2005. (Ex. 16)
13. Mr. Balboni had been out from work receiving workers' compensation. He returned to perform his same job duties. By the start of May 2005, he was working full-time. He experienced recurring pain symptoms in his back, neck and right leg, triggered by no particular activity, and occurring even when sitting at his desk or when driving. He was still taking Vicodin for pain. (Exs. 3, 5, 7 & 8. Testimony)
14. On April 20, 2005, Mr. Balboni's employer gave him and discussed with him, "a ninety day work plan as Highway Manager … [which] provided a continuing series of dates by which … to complete specified tasks." Now full-time, on May 9, 2005, Mr. Balboni met with his employer to evaluate how he was readjusting to a return to work. There were some "deficiencies" found in his reports, and he was given a new deadline to improve them. At the meeting, Mr. Balboni did not assert and did not provide to his employer information showing an inability to work. (Exs. 3, 5 & 7. Testimony)
15. Mr. Balboni was evaluated on May 10, 2005 by Dr. Grace. He reported stress at work due to his secretary being out from work. He was sleeping poorly and was concerned he might have another stroke. Dr. Grace found his spine to be tender. He concluded the back pain was now chronic. Mr. Balboni told Dr. Grace he wanted to stop working because it was hard to sit at work without pain symptoms. Thereafter, Dr. Grace produced a short note for Mr. Balboni's employer simply stating Mr. Balboni was "unable to work due to back pain and stress." (Ex. 16. Testimony)
16. When Mr. Balboni's employer saw the May 10, 2005 note from Dr. Grace, a concern was raised that there was "no additional information concerning diagnosis, prognosis, treatment plans, medication, therapy, etc." By now, his workers' compensation had stopped and Mr. Balboni told his employer he "might need an indefinite leave of absence." This request was refused. He was placed on medical leave. His employer informed him about being "skeptical about your current claim of total, indefinite, incapacity." There was a concern he was magnifying his symptoms. The employer was relying on the report of Dr. Brown of March 4, 2005. (Exs. 7 & 19. Testimony)
17. Mr. Balboni stopped working on May 11, 2005, but on May 14, 2005, he wrote his acceptance of the job of Highway Manager his employer was offering him. A job description for this position was created. Mr. Balboni felt it was just a new title on the job he had been performing. (Exs. 5, 6, 7 & 8. Testimony)
18. The Highway Manager performs:
Administrative and supervisory work in planning, directing and managing the operations of the Highway Department … under the administrative direction of the Director of Public Works …. Performs highly responsible functions requiring the exercise of considerable independent judgment in planning and inspecting the construction and maintenance of highway projects and in determining the scope and scheduling of maintenance projects …. Supervises a department of 32 full-time employees. (Ex. 5)
The job description calls for use of a car, a computer and standard office equipment, and requires being on-call 24 hours a day, seven days a week for emergencies. The work contemplates "constant contact with the general public and … frequent contact with other town officials, … utilities and private contractors." The work includes making contact "in person, by phone, or in writing" to discuss "complex information" and to resolve "difficult customer service requests." There is "access to department-related confidential information." The job description sets forth the "Essential Functions" as follows:
Plans, assigns, schedules, supervises and reviews the work of subordinates with regard to the construction and maintenance of streets, roads, sidewalks, traffic lights, bridges, drains, storm-control structures, and related facilities; supervises the installation of signs.
Specific tasks encompass the following: supervising all highway workers and private contractors involved with emergencies and snow removal; securing the cleaning of streets, catch basins, culverts, drains, outfalls and manholes, and sweeping relating to the construction and repair of bridges; ordering materials needed; planning, scheduling and supervising the pavement markings and installing of traffic signs; inspecting work "for compliance with standards or instructions or for contract compliance;" supervising three districts as to the maintenance of secondary roads along with coordinating the work of the districts; doing the preparation, submission and administration of the Highway Division budget; taking responsibility "for trash pick-up at various streets and buildings;" planning the use of manpower and equipment for highway projects and programs as well as directing the work of field crews and assigning tasks to laborers, operators, and foremen, and ensuring that safety procedures are followed; and, coordinating field operations. The job description calls for an ability to expend:
Moderate physical effort … Occasionally … to move (push, pull, lift or carry) objects weighing up to 30 pounds … to lift heavy objects and to occasionally perform some strenuous work under varying weather conditions … to work and stand for long periods of time …. (Ex. 5)
19. On May 16, 2005, Mr. Balboni was evaluated by Dr. Adriana Carillo. He complained of "severe thoracic pain, especially on the right side … pain goes back and forth from his shoulder blades and irradiates to the right buttocks and/or right hamstring muscles." He reported feeling "severely stressed at work … [and that] he stopped working … taking Vicodin … at night for pain." Dr. Carillo found "myofascial pain of the right thoracic region," and opined that "usually the myofascial pain would increase with stress … apparently what's happening." She recommended physical therapy and use of Vicodin. (Ex. 20)
20. By letter of May 18, 2005 to Mr. Balboni, he was informed that he would be evaluated by a Town appointed physician, Dr. Anthony Caprio, on May 24, 2005. He was asked to bring along his medical records. By this letter, Mr. Balboni was warned that the Town was not finding credible his claim of being disabled from work. (Ex. 7. Testimony)
21. Mr. Balboni was evaluated by Dr. Caprio on May 24, 2005. Dr. Caprio learned about Mr. Balboni's medical history. He understood Mr. Balboni's principal complaint was "burning electrical pain that sometimes shoots down his back in between the shoulder blades around T6-T7 sometimes causing pain in his right shoulder … no specific low back discomfort per se." Dr. Caprio learned about the December 21, 2004 injury at work of a slip and fall on ice which caused him "left shoulder, low back , and mid-thoracic spine" symptoms. He understood Mr. Balboni was out from work until about April 11, 2005. Dr. Caprio understood he worked only about three weeks before experiencing "mid-thoracic discomfort … again." Dr. Caprio was aware that Mr. Balboni was a public works superintendent with a varied job involving both office work and in the field work that could be "quite strenuous at times." Dr. Caprio was aware that Mr. Balboni had a left shoulder rotator cuff tear with no surgery done on it, an "unremarkable" cervical spine MRI, a dorsal spine MRI showing "degenerative changes predominantly at T2-T3, T3-T4 and T7-T8," with the "maximum tenderness … in the T7-T8 area." He was aware Mr. Balboni had physical therapy treatments. He had the results of Dr. Brown's evaluation. Dr. Caprio gave a physical examination. He diagnosed a left shoulder injury involving the rotator cuff that had resolved, a neck strain that resolved, intrascapular thoracic pain with left parascapular pain having an unknown etiology, and a lumbar spine strain that resolved. He opined these diagnoses were related to the fall at work other than the intrascapular thoracic pain that "may or may not be on a degenerative basis." He recommended an evaluation with a thoracic spine specialist. He did not feel a medical end point had been reached. (Ex. 21) He concluded Mr. Balboni could not, handle all of the duties outlined [in the job description he received] such as strenuous work, but certainly he can do sedentary light work … can lift up to 25 pounds but should restrict his overhead work and repetitive bending … can work on a full time basis. (Ex. 21)
22. Mr. Balboni underwent further physical therapy treatments that started in early June 2005. He had only slow progress in improving his symptoms. (Ex. 15) He was evaluated by Dr. Carillo on June 13, 2005, and found to have "right myofascial pain" over his paraspinal muscles in the right thoracic region. (Ex. 20)
23. Mr. Balboni was evaluated on July 8, 2005 by chiropractor Ian C. Paskowski, D.C., for his pain in the upper right and middle right back. Dr. Paskowski had a history on Mr. Balboni that included the test results and the details about the fall at work on December 21, 2004. He gave a physical examination. He opined the "thoracic MRI does not indicate significant disc pathology … primary complaint seems to be residual myofascial pain and spasm at the inferior angle of the right scapula." Dr. Paskowski recommended "instrumented and manual myofascial release technique, scapular stabilization exercises and graded spinal manipulation." (Ex. 22)
24. On July 14, 2005, Mr. Balboni was evaluated again by Dr. Brown. He understood Mr. Balboni was not working due to "increasing discomfort involving his right shoulder." He knew that Mr. Balboni was having "some ongoing pain associated with his posterior right scapular area." By now Mr. Balboni had begun treatments with Dr. Paskowski. Dr. Brown gave a physical examination, and diagnosed right scapular discomfort. Dr. Brown found no causal connection between these symptoms and the December 21, 2004 fall. He did not connect the current right shoulder pain to this fall. Dr. Brown concluded Mr. Balboni "has no objective findings … does have some signs that are not physiologic … has reached a medical end result with respect to … the December 21, 2004 incident," and "no ongoing disability related to the December 21, 2004 injury." (Ex. 19)
25. The Town had Mr. Balboni evaluated on July 21, 2004 by Dr. Douglas G. Bentley. Dr. Bentley understood he hurt his neck and left shoulder during the December 21, 2004 fall. He understood he returned to work in April 2005 for only about one month, stopping again "because of continued symptoms." Dr. Bentley was aware of the left shoulder rotator cuff tear by MRI, the dorsal spine MRI showing "a small herniated disc at T7-T8," and he was told by Mr. Balboni that recent dorsal spine x-rays showed "wedge compression fractures." Dr. Bentley learned he had done left shoulder physical therapy treatments and was having ongoing physical therapy for the neck and upper back. Dr. Bentley gave a physical examination. He diagnosed an acute contusion, shoulder strain, and partial rotator cuff tear in the left shoulder that had "essentially resolved." He diagnosed an acute cervical and dorsal spine strain, a herniated disc at T7-T8, and a possible herniated cervical disc at C6-C7 on the right. He opined these conditions were due to the December 21, 2004 injury. He opined that EMG and nerve conduction studies to the upper extremities might determine if there is any nerve injury, and that there should be a cervical MRI to determine if there is a herniated disc. Dr. Bentley found Mr. Balboni "capable of light sedentary work with no repetitive bending or squatting and no lifting over 15 pounds." Dr. Bentley could not determine a time when Mr. Balboni might return to his full duties. (Ex. 23)
26. Dr. Grace evaluated Mr. Balboni on July 29, 2005. Dr. Grace reported to Mr. Balboni's employer that Mr. Balboni was "undergoing a work up and treatment for back pain … remains unable to return to work." (Ex. 16)
27. On July 11, 2005, Mr. Balboni had a chest x-ray that revealed a possible "nondisplaced right posterior/posterolateral rib fracture." That day he also had thoracic spine x-rays showing: "Likely chronic minimal anterior wedge deformities in the mid and lower thoracic spine," and cervicothoracic scoliosis. On July 26, 2005 he had a scoliosis x-ray series showing; "Shallow scoliosis of the lumbar spine convex to the right …." On August 11, 2005 he had a bone scan that was normal. (Ex. 13)
28. On August 5, 2005, Mr. Balboni's employer wrote to him concerning a return to work. The Town found him able to perform all of the supervisory functions in the job description of Highway Manager on a full time basis with the "only limitations … [being] strenuous work." (Ex. 5) The Town explained it was willing to modify and/or waive (as appropriate), those requirements as an accommodation … not be 'required to move (push, pull, lift or carry) objects weighing up to 30 pounds' … not be required to lift heavy objects or perform strenuous work or stand for long periods of time … accommodations … for a period of ninety (90) days at which time you will be reevaluated to determine if an extension of the accommodations may be required. (Ex. 5)
A response was sought by August 15, 2005. (Ex. 5)
29. This letter resulted in a meeting on August 16, 2005 where the job performance issues were discussed. Mr. Balboni refused to return to work full-time even with the offered accommodations. He informed the Town that he could provide further medical opinion evidence to support why he could not do this offered work. The Town refused the offer to work part-time. The Town responded that it would be willing to consider further job accommodations if supported by medical documentation, but would need Mr. Balboni "to perform all of the normal duties and responsibilities." He was warned to return to work by September 12, 2005 with the accommodations offered or with further negotiated accommodations, or he would risk losing the job. (Ex. 5. Testimony)
30. Mr. Balboni was evaluated on September 1, 2005 by Dr. Paskowski. He complained of continuing discomfort symptoms that had not improved. (Ex. 22) Dr. Paskowski opined,
the initial injuries including left shoulder strain and cervical and thoracic sprain injuries are resolved/resolving. The remaining complaint's etiology remains unidentified. (Ex. 22)
Dr. Paskowski felt a medical end point had not been reached with a need to explore cervical intervertebral disc pathology and the disc herniation at T7-T8. (Ex. 22) He found Mr. Balboni able to do, light duty (sedentary) responsibilities … return to work …
should be gradual … environment should allow for frequent change of position … responsibilities should not include repetitive forward bending, reaching or lifting. Objects that he moves should not exceed 15 pounds. (Ex. 22)
31. Mr. Balboni had a cervical MRI on September 14, 2005 that revealed:
Minimal degenerative disease of the uncovertebral facet joints primarily on the right side of the neck … no evidence of a focal disc herniation or evidence of cord impingement … only mild neural foraminal narrowing … (Ex. 13)
32. Mr. Balboni had workers' compensation payments resumed in August 2005. (Ex. 8)
33. Mr. Balboni did not try to return to work and instead filed for accidental disability retirement benefits at the end of September 2005. Dr. Grace supported his claim of a disability based on the December 21, 2004 fall. ("A". Exs. 3 & 4)
34. On October 5, 2005, Mr. Balboni was admitted to the Jordan Hospital for a consultation by Dr. David P. Gannon, Jr., concerning the mid-scapular pain, right arm pain, low back pain, and right leg pain. Pain complaints were of "aching, sharp stabbing pain between the shoulder blades with paresthesias and dysesthesias running down the right upper extremity." Dr. Gannon gave a physical examination. He reviewed the test results such as the cervical and thoracic spine MRIs showing minimal degenerative changes. (Ex. 13) Dr. Gannon opined Mr. Balboni had:
Long thoracic nerve injury as a result of either C7-8 radiculitis or C7-8 irritation … scapular winging … strongly suggestive of long thoracic nerve weakness or palsy resulting in seratus anterior dysfunction … obtain neurologic consultation and obtain electrodiagnostic studies in an attempt to map out the extent of the patient's
deficit. (Ex. 13)
Dr. Gannon concluded that Mr. Balboni cannot lift or do physical activity involving his upper extremities. (Ex. 13)
35. Mr. Balboni was evaluated by Dr. Douglas Childress, a neurologist, in the fall 2005. He found "lower cervical and upper thoracic cord injury." He prescribed Cymbalta. He also found EMG and Nerve Conduction Studies on the right arm and leg were normal, so that Dr. Childress opined Mr. Balboni had had "some type of regional pain syndrome post trauma." He switched him to Neurontin. By January 2006, Dr. Childress noted Mr. Balboni "had cortalgia of the upper limb … and … would explore injection and medication management of pain." (Exs. 13 & 16)
36. Dr. Grace examined Mr. Balboni on February 14, 2006. Mr. Balboni complained of persisting pain in the back, right leg and right arm. He reported intermittent shoulder pain. He did not secure relief from the medications Dr. Childress prescribed. He felt a "coldness in his right leg, numbness with decreased sensation from the knee to his toes." He noted "stabbing pain in his right buttocks." By examination Dr. Grace found "tenderness of the right scapular to palpation." His neck showed a "decreased range of motion to the left … unable to abduct his right shoulder without pain." Dr. Grace concluded that Mr. Balboni had chronic pain due to the December 21, 2004 injury. (Ex. 16)
37. At a February 22, 2006 evaluation, Dr. Gannon found Mr. Balboni to likely be "suffering from either suprascapular neuralgia and/or long thoracic nerve neuritis and neuralgia." He recommended injection treatments which Mr. Balboni had. On March 29, 2006 Dr. Gannon opined that Mr. Balboni was still showing "signs of long thoracic nerve injury, and/or irritation … parascapular pain may very well be a result of lower cervical and upper thoracic uncovertebral or facet irritation with subsequent radiation of the pain to his parascapular area." He again recommended injections for pain relief. Dr. Gannon could not determine its causation. (Ex. 13)
38. Mr. Balboni was evaluated by Single Physician Medical Panels in August 2006. The Plymouth Retirement Board provided to the three physicians records from the Jordan Hospital, Braintree HealthSouth physical therapy, Jordan Hospital physical therapy, and records from Dr. Grace, Dr. Paskowski, Dr. Eric Johnson, and Dr. Zabilski. In addition, the Panel physicians were sent the application documents which included job description information for Highway Manager, and Dr. Grace's statement in support of the accidental disability claim. Dr. John Groves, one of the Panel physicians, sought the job description for Highway Superintendent which was sent to him. (Exs. 9, 10, 11, 24, 25 & 26)
39. Panel physician Dr. David G. Heller, an orthopedist, evaluated Mr. Balboni on August 9, 2006. He answered his certificate in the affirmative. He understood Mr. Balboni's job was "overseeing operation of the highway [department], solid waste vehicle maintenance, as well as other functions." Dr. Heller understood Mr. Balboni fell on ice in the parking lot on December 21, 2004, suffering a "very severe" fall that involved injury to the shoulders with loss of consciousness. Dr. Heller understood Mr. Balboni was seen at the Jordan Hospital Emergency Room and was admitted overnight for observation. Dr. Heller was aware that Mr. Balboni did not return to work due to symptoms in his shoulders, upper back, and numbness in the right arm and leg. He understood Mr. Balboni "has not been able to resume any activities that were at all strenuous … daily activities are very limited." Dr. Heller was aware that the treatments Mr. Balboni has undergone have been conservative including physical therapy and Vicodin for pain relief. Dr. Heller was aware of Mr. Balboni's "cardiac problems with valvular and septal defects … on long-term Coumadin." Dr. Heller gave a physical examination. He also evaluated the various test results such as the shoulder and upper back MRI showing the rotator cuff tear and the "ruptured thoracic disk at T7-8, compression fracture of the upper thoracic spine … reference to a possible right tenth rib fracture." Dr. Heller diagnosed an impingement syndrome including partial tear of the right shoulder rotator cuff as per history and examination, a compression fracture of the thoracic spine by history, and undiagnosed nerve damage that may be cervical in origin that involves the right arm and right leg by history. Dr. Heller found Mr. Balboni unable to do his job duties. He found that this disability is permanent and might be the natural and proximate result of the December 21, 2004 injury. There was no further discussion on causation. (Ex. 9)
40. Panel physician Dr. Lawrence H. Luppi, an orthopedist, evaluated Mr. Balboni on August 16, 2006. He answered his certificate in the negative. He understood Mr. Balboni's job was Operating Superintendent within the Public Works Department. He understood he slipped and fell on ice on December 21, 2004 and may have suffered a loss of consciousness. He understood he was evaluated at the Jordan Hospital, given a head CT scan, as well as x-rays of the left shoulder, lumbosacral spine and pelvis, which were all normal. He understood he was followed by Dr. Grace. He understood Mr. Balboni has had "varying degrees of neck, diffuse spinal, right arm, right leg, and bilateral scapular pain which prevents regular employment … attempted to return to work in April of 2005." Dr. Luppi was aware that Mr. Balboni had been evaluated by Dr. Zabilski, Dr. Murphy, Dr. Carillo, Dr. Paskowski, Dr. Childress, and Dr. Gannon. He was aware of the diagnostic studies Mr. Balboni has undergone including the lumbosacral spine MRI showing minimal degenerative changes, the left shoulder MRI, the thoracic spine MRI showing minimal degenerative findings, the cervical spine MRIs showing minimal degenerative findings, the head MRI that was normal, the head CT scan that was normal, and the upper and lower electrodiagnostic tests done with Dr. Childress that were within normal limits. Dr. Luppi was aware of the various physical therapy and medical treatments Mr. Balboni has undergone. He understood that Mr. Balboni was taking Vicodin for pain. He understood his symptoms were of neck, right shoulder and diffuse dorsal and lumbosacral pain, and right leg pain that starts in the low back. He understood that Mr. Balboni had a medical history that includes gout, an anxiety disorder, a history of colonic ulcers, "mitral valve prolapse, and transient ischemic attack secondary to patent foramen ovale." Dr. Luppi was aware that Mr. Balboni takes a number of medications including Coumadin. Dr. Luppi gave a physical examination. He diagnosed Mr. Balboni with chronic pain by history, and found no "ongoing significant orthopedic/anatomical diagnosis to account for his pain, and … unable to establish a disability as related to any employment." (Ex. 10)
41. Panel physician Dr. John Groves, an orthopedist, evaluated Mr. Balboni on August 24, 2006. He answered his certificate in the affirmative. Dr. Groves was aware of the fall at work on December 21, 2004 of slipping on ice and landing hard onto the left shoulder, including sustaining "a fractured right rib." Dr. Groves noted Mr. Balboni was unconscious for awhile as a result of the fall. He noted he fell onto his back and also injured his right arm. He was aware Mr. Balboni was seen at the Jordan Hospital, and that he was since evaluated by a number of physicians including Dr. Zabilski of the Jordan Hospital Pain Clinic. Dr. Groves was aware that he tried to return to work in April 2005 but was not able to last more than four weeks with no work since and with continuing symptoms from the December 21, 2004 fall. Dr. Groves understood Mr. Balboni has pain in his right scapular region, has weakness in his right arm, and radiating pains into his right leg and foot. He understood he has trouble bending and stooping. He understood he has left shoulder pain that improved. He understood he has trouble due to numbness in the right hand with typing and writing, and that he cannot engage in strenuous activities because of the right arm and right shoulder. Dr. Groves was aware of his diagnosis of "a patent foramen ovale and … significant TIA some twelve years ago for which he is being treated with Coumadin." He had knowledge of the 2002 foot injury and the splenectomy. He understood Mr. Balboni has been treated for gout, hypercholesterolemia, and hypertension. Dr. Groves gave a physical examination. He also saw the various test results such as the x-rays and MRIs. He found they revealed: minimal degenerative disease without herniation or impingement in the cervical and lumbar spines; "chronic minimal anterior weight deformities in the lower thoracic spine with cervical thoracic scoliosis," and degenerative findings; and, the left shoulder rotator cuff partial tear. He also reviewed the reports of Dr. Grace, Dr. Carillo, Dr. Paskowski, Dr. Murphy, and Dr. Zabilski. He reviewed the job description for Highway Superintendent. (Ex. 11) He diagnosed:
1. Paralysis thoracic anterior muscle right shoulder blade;
2. Mild adhesive capsulitis right shoulder related to diagnosis
3. Degenerative arthritis thoracic spine;
4. Facet arthropathy lumbar spine;
5. Foot drop right lower extremity with absent ankle reflex;
6. Fractured right tenth rib, resolved. (Ex. 11)
Dr. Groves opined that Mr. Balboni could not perform his essential duties on a permanent basis and that this disability might be the natural and proximate result of the December 21, 2004 injury. He found "objective physical findings of paralysis of the anterior serratus muscle of the right shoulder blade area due to inactivity of the long thoracic nerve." He opined Mr. Balboni has reached a medical end result. (Ex. 11)
42. The Plymouth Retirement Board voted to deny Mr. Balboni's application for accidental disability retirement. Mr. Balboni filed a timely appeal. ("A". Exs. 1 & 2)
Mr. Balboni's claim involves a complicated set of medical conditions. At the very least, the Plymouth Retirement Board has shown that it provided to the three Medical Panel physicians, all the pertinent medical information that existed at the time of filing for accidental disability retirement. It is unclear from the record if all the Panel physicians had information on the treatments Mr. Balboni had after filing for retirement, by Dr. Childress and Dr. Gannon. Dr. Luppi notes his knowledge of their evaluations, but the reports of Dr. Heller and Dr. Groves do not. Mr. Balboni should have provided the evaluations of these two physicians to the Respondent Board for forwarding to the Panel physicians. The record shows that all three physicians gave Mr. Balboni a physical examination, and understood that he had fallen on ice on December 24, 2004.
The Panel physicians were able to review the details of the many medical tests and evaluations done following that fall. They also had a past medical history on Mr. Balboni. In terms of the job description information, the Panel physicians had the job description for Highway Manager, and Dr. Groves also had the job description for Highway Superintendent. I agree with Mr. Balboni, that absent some accommodations made to avoid the exertional work set forth in both job descriptions, both descriptions read largely the same including as to the essential duties.
The Medical Panel physicians are to address the medical evidence that is beyond the expertise of a lay person to adequately assess. They must also have before them the pertinent non-medical information such as proper job description information and a proper understanding of the claimed injury at work. Malden Retirement Board v. Contributory Retirement Appeal Board (CRAB), 1 Mass. App. Ct. 420 ( 1973) The Medical Panel take into consideration the job's essential duties and determine if these tasks can be performed on a sustained basis. G.L.c.32, §7(1) See, Brookline Retirement Board v. CRAB, 33 Mass. App. Ct. 478 (1992) (The Police Officer is disabled even if can perform light duty and at least some of the regular required duties.); Quincy Retirement Board v. CRAB, 340 Mass. 56 (1960) (There is a disability when there is an inability to carry out regular required duties on a sustained basis.). The Panel physicians had to determine if any total disability found is permanent, or if it is a condition that may be improved with reasonable treatments, or will improve within a reasonable period of time. Retirement Board of Revere v. CRAB (DiDonato), 36 Mass. App. Ct. 99 (1994) (Police Officer refused arthroscopic knee treatments likely to have improved his condition at reasonable risk to him.) See also, Yoffa v. Metropolitan Life Insurance Company, 304 Mass. 110 (1939); Hovhanesian v. New York Life Insurance Company, 310 Mass. 625 (1942) (Improvement to the point of no further disability at some unforeseeable time does not prevent finding the disability to be permanent.). The Panel had to determine whether any total and permanent disability found might be the natural and proximate result of the December 21, 2004 incident. This means finding this incident was more than a contributing cause among a number of causes for why Mr. Balboni cannot work at the job any longer. Campbell v. CRAB, 17 Mass. App. Ct. 1018 (1984) This also involves considering whether what happened on December 21, 2004 might be the primary cause for aggravating a pre-existing condition into a total and permanent disability. Zavaglia v. CRAB, 345 Mass. 483 (1963); Baruffaldi v. CRAB, 337 Mass. 495 (1958)
The findings made show that Mr. Balboni had pre-existing health issues including a 2002 foot surgery, and a stroke/cardiac incident that resulted in being placed on Coumadin ever since. He was also being treated for high cholesterol, hypertension, and for an anxiety disorder. He was complaining of left shoulder discomfort in the fall just prior to the December 2004 injury. The left shoulder condition was one of the complaints Mr. Balboni had following the fall. He also experienced stress at work upon his return in April 2005. It is not clear from the medical evidence just how significant a role any of these conditions played in why Mr. Balboni stopped working. None of these pre-existing conditions was set forth by the majority of the Medical Panel physicians as playing a factor in why Mr. Balboni is disabled.
From the December 21, 2004 time period through the time of the Medical Panel evaluations in August 2006, the kinds of pain complaints Mr. Balboni experienced, changed in ways that appear to be significant. He was given lumbar spine, pelvis, left shoulder, and left knee x-rays as well as a head CT scan as a result of his emergency room visit after the accident. Nothing emerged at that time concerning right shoulder issues or right arm, hand and leg symptoms, or interscapular thoracic discomfort. He fell onto his left side and back during the fall. The opinion of Dr. Brown was that Mr. Balboni was not disabled, and the etiology of the thoracic spine discomfort was not due to the December 2004 fall. The opinion of Dr. Caprio was that the thoracic spine condition was not due to the December 2004 fall, and that Mr. Balboni was able to do his job's non-exertional tasks on a full-time basis. Dr. Bentley found Mr. Balboni able to do sedentary work. Dr. Gannon could not determine the etiology of the thoracic spine condition. Dr. Paskowski found Mr. Balboni could do sedentary work, and he could not determine the etiology of the thoracic spine condition.
These are conditions that existed at the time of the Panel evaluations. Dr. Heller notes in his report that the fall produced "injury to his shoulders and loss of consciousness," and that subsequently, he felt unable to work "because of ongoing problems in multiple areas, including both shoulders, upper back, and decreased sensation with feeling of numbness of the right arm and right leg." Dr. Heller found he had by MRIs, a "partial tear of the right rotator cuff, ruptured thoracic disk at T7-8, compression fracture of the upper thoracic spine, with the exact level not identified … a reference to a possible right tenth rib fracture." He goes on to diagnose an impingement syndrome in the right shoulder, a compression fracture in the thoracic spine, and an undiagnosed nerve damage involving the right arm and leg. He does not provide any detailed explanation about how the August 2006 disabling conditions are tied to the December 2004 fall. (Ex. 9)
Dr. Luppi notes in his report that Mr. Balboni landed "on his back with questionable loss of consciousness …[had] head CAT scan and x-rays of the left shoulder, lumbosacral spine, and pelvis … reported to be within normal limits." He understood after this Mr. Balboni had complaints of "varying degrees of neck, diffuse spinal, right arm, right leg, and bilateral scapular pain." He simply found by his August 2006 evaluation, no "ongoing significant orthopedic/anatomical diagnosis to account for his pain." (Ex. 10)
Dr. Groves notes in his report that Mr. Balboni "fell heavily" on the ice on December 21, 2004, "landing on his left shoulder and he sustained a fractured right rib." He also found he landed on his back, and "injured his right arm." He notes complaints in August 2006 in the "upper back, right shoulder, right scapular region, low back and right leg." He further notes an August 2006 complaint of right hand numbness and right arm limitations. He notes that now Mr. Balboni has "paralysis of the anterior serratus muscle of the right shoulder blade area due to inactivity of the long thoracic nerve." He finds there is a "right foot drop and signs of right leg radiculopathy." Dr. Groves does not provide any detailed information to support his affirmative certificate response as to causation. (Ex. 11) I read the majority Panel physicians reports as finding it medically possible all the disabling conditions they found are due to the December 21, 2004 fall.
There is no discussion in any of the Panel reports that address the job accommodations Mr. Balboni was offered by his employer which he rejected. He testified that even with accommodations, he could not work full time due to back pain. The accommodations allowed him for 90 day time periods at a time to avoid any heavy lifting or strenuous tasks. This information reflects the actual job standard that the Panel physicians should have considered of the Highway Manager with the job accommodations, and not just the job as it was written. There is some indication in the Employers Statement concerning the accommodation, and it may be that the Panel physicians were provided with the letters from the employer discussing the ability to work with an avoidance of strenuous tasks. But, either they did not consider these job accommodations or they did not realize there were such accommodations. Either way, this is a significant piece of factual information that taints the propriety of the Panel evaluations as to the existence of a disability. Kelley v. CRAB, 341 Mass. 611 (1961)
Dr. Luppi found no disability even employing the full job description which includes the occasional need to do strenuous tasks, so appreciating he could avoid such tasks due to the job accommodations would not have altered his certificate answers.
Based on this failure to give consideration to the pertinent job accommodation/ modification of duties issue, the case is remanded to the same Medical Panel physicians for reconsideration of their certificate responses in light of Mr. Balboni's ability to avoid strenuous tasks in working as Highway Manager, although he still had to work full-time. In addition, the Panel physicians need to be provided with the evaluations done by Dr. Childress and Dr. Gannon. (Exs. 5, 6, 7 and 13) If it is not practicable for the same Panel physicians to reconvene about this issue, then a new Medical Panel is to be convened.
DIVISION OF ADMINISTRATIVE LAW APPEALS
Sarah H. Luick, Esq.
DATED: March 12, 2008
This information is provided by the Division of Administrative Law Appeals .