THE COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Alan Munn,

Petitioner

v. Docket No. CR-06-284

Middlesex County Retirement Board,

Respondent

Appearance for Petitioner:

Pro Se

63 Sleigh Road
Westford, MA 01886

Appearance for Respondent:

Thomas F. Gibson, Esquire, Chairman

Middlesex County Retirement Board
25 Linnell Circle - P.O. Box 160
Billerica, MA 01865

Administrative Magistrate:

Judithann Burke

CASE SUMMARY

The Petitioner, a former police officer retired on an orthopedic disability, failed to prove that he was disabled due to a cardiac condition prior to his retirement. His Section 94 application under the Heart Law is denied.

DECISION

Pursuant to G.L. c. 32 s. 16(4), the Petitioner, Alan Munn, is appealing from the April 24, 2006 decision of the Respondent, Middlesex County Retirement Board(MCRB), denying his application for accidental disability retirement benefits pursuant to G.L. c. 32 s. 7 and 94, the Heart Law. (Exhibit 1). The appeal was timely filed. (Id).

A hearing was held on October 14, 2008 at the offices of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA.
At the hearing, nine (9) exhibits were marked. The Petitioner testified and argued in his own behalf. The Respondent stated its argument for the record. One (1) tape was made of the proceedings.


FINDINGS OF FACT

Based upon the evidence submitted at the hearing in the above-entitled matter, I hereby render the following findings of fact:

1. The Petitioner, Alan Munn, d.o.b. 02/18/1951, was retired on accidental disability on 09/25/2004, based upon orthopedic injuries to his left knee sustained while in the performance of his duties as a police sergeant in the Town of Billerica. (Stipulation).

2. On June 1, 2005, the Petitioner submitted a second accidental disability application wherein he listed heart disease as the medical reason for the application. He sought benefits under G.L. c. 32 s. 94, the Heart Law. (Exhibit 2).

3. The Petitioner began his career with the Billerica Police Department in March 1975. A job description for the position of Police Sergeant in the Town of Billerica is part of the record. The job includes a variety of traditional, physically stressful police duties. (Exhibits 3 and 7).

4. Prior to October 31, 2000, the Petitioner had no history of heart problems.He had no family history of heart problems. He smoked two packs of cigarettes per day for About twenty-five years and stopped smoking in 1998. (Exhibit 8).

5. On October 31, 2000, the Petitioner experienced chest pains while off duty. He reported to work in order to be checked out by the paramedics. He went to the Emergency Room at the Lahey Clinic where he was admitted overnight. There was no evidence of a myocardial infarction. He was released on November 1, 2000 with a diagnosis of angina. He was provided with Nitroglycerin for the chest pains. The Petitioner's supervisor completed an injury report. (Exhibits 1 and 9).

6. The Petitioner had exercised on a treadmill while at the Lahey Clinic on November 1, 2000. There were no arrhythmias. The sinus rhythm was normal. His electrocardiogram was normal. The EKG was not significantly different from one he underwent in 1997. The maximal exercise test was determined to be abnormal due to the development of 1MM horizontal ST depressions at peak heart rate. (Exhibit 8).

7. The Petitioner underwent regular blood testing and EKG studies from and after November 1, 2000 in order to monitor his cardiac health. (Id).

8. On November 29, 2000 the Petitioner underwent a follow-up examination. He stated that he had daily chest pain, but that it lasted for a few minutes. He indicated that on one occasion when the pain was bad, he took the Nitroglycerin and it did not relieve the pain. The Petitioner was advised to continue with the Nitroglycerin as neededand continue to be monitored. The conclusion on that date was "paroxysmal chest pain". (Id).

9. A second exercise tolerance test on December 7, 2000 revealed excellent exercise capacity and no significant arrythmias. There was a suggestion of ST segment depression, but the tester concluded that this did not reach a significant level during exercise. The tester's conclusion was, "the test is considered borderline, probably negative for myocardial ischemia at this high workload." (Id).

10. A wall motion myocardial perfusion study on December 7, 2000 revealed decreased tracer uptake in the inferior wall of the left ventricle with minimal radiotracer uptake at rest. The remaining ventricles were normal. The wall motion study was normal. The conclusion was "inferior wall ischemia". (Id).

11. On January 2, 2001, the Petitioner had a cardiac consultation with Maurizio Diaco, M.D. of the Lahey Clinic. The doctor indicated that the Petitioner had no prior history of cardiac disease. The doctor noted that the chest pain that the Petitioner had experienced in October and November 2000 was very mild. The Petitioner described his symptoms at that time as a chest tightness/pressure, localized mostly in the lower sternum without radiation, no associated diaphoresis or shortness of breath. He reported that his symptoms were usually triggered by exercise, but they also occurred at rest. An EKG on that date revealed a "normal sinus rate and rhythm with 74 beats per minute with subtle ST changes inferiorly,? (sic) of ischemic multiple artifact, but no acute changes."

The doctor's impression was: angina pectoris, hyperlipidemia, and an abnormal stress test with evidence of inferior wall ischemia.

The follow-up plan was for the Petitioner to undergo cardiac catheterization. The

doctor concluded:Mr. Munn's symptoms are very suggestive of coronary artery disease. He has, quite frequent now, episodes of chest discomfort triggered by exertion. The stress test was definite (sic) positive for inferior wall ischemia. He certainly has multiple risk factors for coronary artery disease. At this point, I would like to treat him with a small dose of a beta blocker. The baseline rate was not significantly high. A small dose of Atenolol will be started.
(Id).

12. The Petitioner underwent cardiac catheterization at the Lahey Clinic on January 8, 2001. It was discovered that the left anterior descending coronary artery showed a 30-40% area of stenosis present proximally, but, that the remainder of the vessel was non-obstructed. The left circumflex and the right coronary artery were non-obstructed. The catheterization was determined to be negative. (Id).

13. The Petitioner saw Dr. Diaco for a follow-up visit on January 23, 2001. The doctor reported that he would like to aggressively reduce the patient's risk factors for progression of coronary artery disease. Dietary changes, weight reduction and exercise were discussed. (Id).

14. The Petitioner returned to the Lahey Clinic for re-evaluation of his cardiac symptoms on February 7, 2002. He reported occasional slight chest pain with exertion. He was able to tolerate moderate exercise. The doctor's diagnosis was "insignificant coronary disease with borderline hyperlipidemia." (Id).

15. An EKG on March 25, 2004 showed normal sinus rhythm at 60 and no acute changes. (Id).

16. On November 9, 2004, Dr. Diaco reported that the Petitioner appeared to be stable from a cardiovascular point of view. The physical examination showed no signs of congestive heart failure and no active ischemia. The doctor stated, "his symptoms remain very atypical. He does carry a history of mild non-obstructive LAD with about a 30-40% stenosis, however he has a history of hypercholesterolemia. I discussed with him the importance of arresting the risk factors of progression of disease and the patient understands the importance of that." (Id).

17. The impression after stress echocardiography on December 21, 2004 read: "1. Good exercise tolerance with adequate myocardial stress level; 2. Stress test negative for angina, non-diagnostic for ischemia by EKG criteria; 3. No echocardiograph evidence of inducible ischemia at high workload; 4. Baseline preserved systolic function, EF of 65% with borderline LVH, no regional wall motion abnormality, trace MR, trace TR with normal pulmonary arterial systolic pressure, apparently normal diastolic
function." (Id).

18. On March 31, 2005, Internal Medicine Doctor Kenneth Krutt reported that the Petitioner had a normal cardiac exam. The Petitioner informed the doctor that he had been well. The Petitioner's lipid profile remained high. (Id).

19. In March 2005, after his retirement from the Billerica Police Department, the Petitioner performed "some private investigative work." (Id).

20. On June 2, 2005, Dr. Diaco issued the Statement of Applicant's Physician. He reported that the Petitioner was totally and permanently disabled from police work due to his cardiac condition, and, that the disability was work related. The doctor stated that he had thought the Petitioner to be stable back in November 2004, although his lipid profile was unsatisfactory. The doctor indicated that the Petitioner still reported significant limitation of his physical activity by occasional exercise-induced chest discomfort. The doctor opined that the etiology of these symptoms was "possibly spasm." An EKG performed on that date was normal and unchanged from November 2004. The doctor's diagnoses were: coronary artery disease; exercise-related chest discomfort, suspicion for angina; hypercholsterolemia; hypertension; and, mildly overweight. Dr. Diaco also reported:
Mr. Munn in the office appeared to be without symptoms and with no signs of congestive heart failure or active ischemia. Note Mr. Munn has just retired from the police force and at present time applying for disability. His history reports a functional limitation due to his exercise-induced chest pain. He did have in the past exercised-induced pain. I cannot rule out the possibility of a coronary spasm due to an underlying endothelial dysfunction…I did support his application for disability based on his exercise-induced chest symptoms. (Exhibit 4).

21. On January 3, 2006, Dr. Diaco reported: Mr. Alan Munn has been a patient of mine I have been following because of history of CAD and exercise-induced chest discomfort. To note, Mr. Munn was seen by me first in January 2001. At that time, he did have a severe episode of chest pain, which did require ER evaluation and note a stress test at that time did show the possibility of inferior wall defect suggesting underlying coronary artery disease. However, did (sic) show plaque in the LAD and spasm of the right coronary artery. Mr. Munn has always had exercise-induced and occasionally rest chest pain. I felt at the time that these symptoms were definitely related to his stressful job and also related to likely a coronary spasm due to an endothelial dysfunction. This underlying pathophysiology may also have explained the presence of a redistribution defect in the inferior wall by stress nuclear in 2001. Mr. Munn does carry a history of progression of coronary artery disease and I felt that since 2001 that he was substantially limited in performing the duty of a police officer. He continued to experience exercise induced chest pain and I feel that this condition is most likely going to be permanent due to probably underlying endothelial dysfunction triggering a coronary spasm and symptoms. Mr. Munn has on multiple occasions reminded me that he is at risk to develop a future cardiovascular event.

(Id).

22. The MRB forwarded all of the records from the Lahey Clinic to the Regional Medical Panel. (Exhibit 5).

23. The Regional Medical Panel of cardiologists evaluated the Petitioner on March 15, 2006. Drs. Thakur, Phillippides and Ellison answered "no" to Question 1. The doctors also noted on the Certificate that they had reviewed the member's job description. (Exhibit 6).

24. In the narrative report, the Panel noted that the Petitioner's current symptoms were exertional dyspnea and rare episodes of chest discomfort. They also noted the Petitioner's hyperlipidemia. The Panel correctly summarized the history of the Petitioner's onset of chest pains and his cardiac treatment. The final diagnosis was
"atypical chest pain/non-obstructive CAD." The Panel's Final Conclusion read:

The Panel carefully reviewed the patient's cardiovascular workup and came to the conclusion that the patient had atypical chest pain but non-obstructive coronary disease. Though the patient's first exercise tolerance test suggested inferior wall ischemia, subsequent cardiac catheterization and coronary angiography did not show significant obstructive coronary disease. Therefore, the patient's symptoms were not related to coronary destruction and therefore not cardiac in nature. This contention is backed up by the fact that the patient subsequently did very well with very few symptoms, good exercise capacity, and, in December 2004, he underwent an exercise tolerance test/echo where he exercised for a good level and showed absolutely no signs of ischemia. In essence, the first exercise test is probably a false positive. In summary, the Panel felt that there was no disabling cardiac condition and therefore answered no to Question One. (Id.).

25. The MRB denied the Petitioner's Heart Law application on April 24,

2006. (Exhibit 1).

26. The Petitioner filed a timely appeal. (Id.).

CONCLUSION

After a careful review of all of the evidence in this case, I have concluded that the Petitioner is not entitled to prevail in this appeal. He has not met his burden of proving that he qualifies for retirement under the Heart Law.
In order to receive accidental disability retirement benefits under G.L. c. 32, s. 7, an applicant must establish by a preponderance of the evidence, including an affirmative Medical Panel Certificate, that he is totally and permanently incapacitated from performing the essential duties of his job as a result of an injury sustained or hazard undergone while in the performance of his duties. The Medical Panel's function is to "determine medical questions which are beyond the common knowledge and experience of the local board (or Appeal Board)." Malden Retirement Board v. CRAB, 298 N.E. 2d 902, 1 Mass. App. Ct. 420 (1973). Unless the Panel employs an erroneous standard or fails to follow proper procedures, or unless the Certificate is "plainly wrong," the local board may not ignore the Panel's medical findings. Kelley v. CRAB, 341 Mass. 611, 171 N.E. 2d 277 (1961).

The Medical Panel had all pertinent medical and non-medical facts, including the Petitioner's accurate job description. Revere Retirement Board v. CRAB, 36 Mass. App. Ct. 99 (1994). In answering the Certificate, the doctors did not employ an erroneous standard.
The Petitioner has attempted to support his application with the 2005 and early 2006 statements of Dr. Diaco. The Panel Doctors did not agree with the finding of Dr. Diaco that the Petitioner was disabled from his police work due to "exercise induced chest pains." In fact, Dr. Diaco himself did not render this opinion simultaneous with his treatment of the Petitioner from late 2000 to late 2004 while the Petitioner was actively employed as a police sergeant. In fact, he noted in several reports that the Petitioner's cardiac condition was stable during that period. Not until the Petitioner approached him to support a Heart Law retirement in 2005 did Dr. Diaco speak of the Petitioner being disabled by virtue of a cardiac condition. The untimely and otherwise unsupported statement by Dr. Diaco raises a question concerning his credibility and accuracy as well as the validity of the Petitioner's claim.

In contrast, the Panel's conclusion on total disability is consistent with other objective medical evidence in the record, including all of the diagnostic studies and the simultaneous reports of Dr. Diaco. Further, there is absolutely no non-medical evidence in the record that, from and after the initial incident in October and November 2000, the Petitioner missed any time from work due to exercise-induced chest pains or coronary artery disease. The focus of the medicals in the record for the period from 2003-2004 is centered on the orthopedic disability for which the Petitioner retired in September 2004.

Lastly, there is merit to the MCRB's contention that the Petitioner would not be entitled to a Heart Law retirement even if he were determined to be presently disabled from heart disease. Because there is absolutely no evidence that any cardiac disability was manifest prior to his retirement in 2004, the Petitioner cannot benefit from an accidental disability retirement based upon a subsequently matured disability. Vest v. CRAB, 41 Mass. App. 191 (1996).
Accordingly, the decision of the Middlesex County Retirement Board, denying the Heart Law application of Alan Munn, is affirmed.

So ordered.
Division of Administrative Law Appeals,
BY:

/s/
Judithann Burke
Administrative Magistrate

DATED: July 24, 2009