COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Antonio Rizzo,

Petitioner

v. Docket No. CR-07-333

Revere Retirement Board,

Respondent


Appearance for Appellant:

Deborah G. Kohl, Esq.

191 Bedford Street
Fall River, MA 02720

Appearance for Respondent:

Ira H. Zaleznik, Esq.

Lawson & Weitzen, LLP
88 Black Falcon Avenue
Boston, MA 02210-2414

Administrative Magistrate:

Maria A. Imparato, Esq.

CASE SUMMARY

The Revere Retirement Board shall grant accidental disability retirement benefits to the Petitioner because he has sustained his burden of proving that his permanently disabling left knee condition is the natural and proximate result of a personal injury sustained while in the performance of his duties.

DECISION

Antonio Rizzo filed a timely appeal under G. L. c. 32, s. 16 (4) of the April 19, 2007 decision of the Revere Retirement Board to deny his application for accidental disability retirement benefits. (Exs. 1, 2)

I held a hearing on April 28, 2009 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA.

I admitted documents into evidence. (Exs. 1 - 21) I marked the Petitioner's pre-hearing memorandum "A" for identification, and the Respondent's pre-hearing memorandum "B" for identification. There is one tape cassette of the hearing.
I took administrative notice of a prior decision issued in this matter on July 5, 2005 by Administrative Magistrate Joan Freiman Fink in the case of Antonio Rizzo v. Revere Retirement Board, docket number CR-04-130, in which she ordered remand to a new medical panel. The sufficiency of the new medical panel report is the subject of this appeal. The parties stipulated to the facts found in the Magistrate's decision.

FINDINGS OF FACT

1. Antonio Rizzo, d.o.b. 4/13/1946, worked for the City of Revere Department of Public Works as a Parks Maintenance Craftsman from September 1992 to June 15, 2001. (Ex. 3, Testimony.)

2. Mr. Rizzo's job required him to perform maintenance and care of recreation areas, athletic fields, parks and playgrounds. He performed journeyman level carpentry and masonry duties. He performed grounds maintenance including planting, seeding, raking and fertilizing. He graded, cut, watered and trimmed fields and park areas. He performed skilled mechanical repair of power mowers, tractors and other equipment. He constructed and repaired chain link fences, benches, grandstands, and playground apparatus. He painted, flooded skating areas, trimmed tress and bushes, set up and lined athletic fields, and operated motor equipment, including street sweepers and snowplows. (Ex. 5; Testimony)
3. Mr. Rizzo's job required lifting and bending on a daily basis. He was required to kneel when planting and weeding. He was required to walk 2 - 3 miles daily. (Ex. 5, p. 2)

4. Mr. Rizzo was able to perform his duties and did not have any problems with his knees prior to December 2000. (Testimony.)

5. On December 5, 2000, Mr. Rizzo was greasing and oiling the blades of a snowplow. He slipped in a puddle of oil and water and landed on both knees on the edge of the snow plow support. (Testimony; Ex. 3, p. 5; CR-04-130.)

6. In February 2001, Mr. Rizzo went to North Shore Suburban Hospital complaining of pain in both knees. He came under the care of Dr. Lynch, an orthopedic surgeon. (Testimony; Ex. 3, p. 10; CR-04-130.)

7. On June 6, 2001, Mr. Rizzo had arthroscopic partial meniscectomy and debridement of his right knee. He did not return to work and began to collect worker's compensation benefits. (Testimony; CR-04-130; Ex. 10, History & Physical, 1/15/02.)

8. In August 2001, Mr. Rizzo underwent arthroscopic debridement of his left knee. (Testimony; CR-04-130; Ex. 10, History & Physical.)

9. Mr. Rizzo then went through a course of conservative therapy for his left knee, including non-steroidal anti-inflammatory medication, Cortisone injections and the use of Synvisc. X-rays revealed almost complete loss of the medial joint compartment with large spurring. Mr. Rizzo participated in an exercise program, but he continued to have severe incapacitating pain requiring the use of narcotics. On January 15, 2002, Mr. Rizzo had a left total knee replacement at Melrose-Wakefield Hospital. (Testimony; Ex. 10, Discharge Summary; CR-04-130.)

10. Mr. Rizzo's admission diagnosis in January 2002 was "degenerative arthritis left knee aggravated by industrial injury of 12/5/00." (Ex. 10, History & Physical.)

11. Mr. Rizzo's left knee developed a staph infection. On October 10, 2002 the knee was opened and the prosthesis was removed. Mr. Rizzo underwent resection arthroplasty with an implantation of an articulating antibiotic spacer. Mr. Rizzo's left leg was casted pending revision surgery in January 2003. (Ex. 12, Knee evaluation form; Ex. 13, Operative Report.)

12. On October 12, 2002, Mr. Rizzo underwent a surgical procedure to place a tunneled right subclavian catheter to deliver long-term IV antibiotics to fight the staph infection. (Ex. 11, Operative Report.)

13. On January 30, 2003, William D. Shea, M.D., an orthopedic surgeon, performed re-implantation of the left total knee arthroplasty with removal of the antibiotic spacer. (Ex. 13, Operative Report; office note 1/30/03; CR-04-130.)

14. In February 2003, Mr. Rizzo continued to walk on crutches, bearing half of his weight on the left leg when standing. He was unable to drive a car. He began physical therapy. (Ex. 13, 2/11/03; Ex. 12, Notes.)

15. On February 24, 2003, Mr. Rizzo filed an application for accidental disability retirement benefits citing loss of function of his left knee and two total knee replacements in January 2002 and January 2003 as the result of falling onto his knees on December 5, 2000. (Ex. 3; CR-04-130.)

16. Dr. Shea filed a statement in support of the application answering all certificate questions in the affirmative. Dr. Shea offered a diagnosis of "status post painful failed infected total knee arthroplasty." Dr. Shea opined, "He presently continues to ambulate on two crutches. He is totally disabled from work. This condition is work related and permanent." (Ex. 4)

17. On March 29, 2006, a regional medical panel composed of John F. McConville, M.D., an orthopedic surgeon; James S. Hewson, M.D., an orthopedic surgeon; and Judy Fine-Edelstein, M.D., a neurologist, convened to examine Mr. Rizzo. (Ex. 6.)

18. The panel answered in the affirmative to all certificate questions. (Ex. 6.)

19. The panel reviewed medical records and a job description, took a history and performed a physical examination. The panel diagnosed advanced degenerative arthritis, multi-compartmental, left knee; status post failed arthroscopic medial meniscectomy and total joint replacement without patella resurfacing; revision total joint arthroplasty, left knee joint; hypertension; obesity; and atrial fibrillation. (Ex. 6.)

20. The panel noted that Mr. Rizzo was capable of ambulating, "but with considerable difficulty, still requiring the use of a cane or crutch." The panel noted that the "severe pain noted prior to his revision joint replacement has never completely resolved, but has improved considerably, now rated at 5/10." (Ex. 6.)

21. The panel noted that Mr. Rizzo's current symptoms include constant discomfort; an inability to walk without a crutch or cane; an inability to manage stairs; an ability to get in and out of only a large vehicle such as an SUV; an inability to use public transportation; and an inability to walk for a distance of greater than 50 yards before requiring rest. (Ex. 6.)

22. The panel noted that there were no prior problems involving the left knee requiring medical attention, "other than the work site incident of December 5, 2000." (Ex. 6.)

23. The panel concluded that Mr. Rizzo is unable to perform the essential duties of his job, that the disability is likely to be permanent, and that the disability might be the natural and proximate result of the personal injury claimed or hazard undergone on account of which retirement is claimed. (Ex. 6.)

24. By letter of June 6, 2006 from the Board to PERAC, the Board opined that the medical panel had failed to address the issue of whether Mr. Rizzo's work injury of December 5, 2000 aggravated his underlying osteoarthritis to the point of permanent disability. The Board requested that PERAC convene a third medical panel and ask the third panel to address the causation question, as well as two other questions: 1) If the knee replacement failed to cure his disability, did the knee replacement operation fail due to the overall physical condition and weight of the petitioner, as opposed to lack of success of the operation itself, and 2) Are the complication experienced by Mr. Rizzo the result of the procedures, or the result of the injury sustained by him in December 2000. If the complications resulted from the failure of the procedures, were the medical procedures required to be performed as a result of the accident of December 2000. (Ex. 15.)

25. By letter of July 31, 2006, PERAC denied the Board's request for a third medical panel. PERAC offered to forward to the medical panel any questions that the Board wanted submitted to the panel for clarification of their findings. (Ex. 16.)

26. By letter of August 28, 2006, Dr. Shea responded to the questions posed by the Board in its letter of June 6, 2006. Dr. Shea opined that Mr. Rizzo is permanently and totally disabled secondary to an injury sustained on December 5, 2000 in which he tore his medial meniscus which required orthopedic treatment including surgery. He required a total knee replacement, which was a direct result of the initial injury. His diagnosis at the time of surgery was traumatic arthritis of the left knee. (Ex. 19.)

27. Dr. Shea further opined that the second knee replacement procedure "was the direct result of the complications of the first surgery. The infection is one of the potential risks of such a procedure. The necessity of this surgery is the direct result of the original injury of 2000." (Ex. 19.)

28. By letter of September 28, 2006, PERAC denied the Board's second request that a new medical panel be convened to examine Mr. Rizzo. PERAC offered again to assist the Board in obtaining clarification from the medical panel. (Ex. 17.)

29. By letter of October 11, 2006, the Board requested that the panel answer a series of questions, among them: 1) whether the injury aggravated Mr. Rizzo's underlying osteoarthritic condition to the point of permanent disability; 2) if the second knee replacement failed to cure Mr. Rizzo's disability, did the knee replacement fail due to the overall physical condition and weight of the petitioner, as opposed to the lack of success of the operation itself; and 3) whether the complications experienced by Mr. Rizzo were the result of the procedures themselves, or the result of the injury sustained in December 2000. (Ex. 7.)

30. By addendum dated November 10, 2006, the medical panel responded to the Board's questions as follows: 1) the medical impact of a fall upon an already diseased joint is one of increasing damage to the involved joint, depending on the extent of the trauma sustained; 2) Mr. Rizzo did aggravate his underlying osteoarthritic condition, "but this superimposed injury did not in itself 'turn it into a permanent disability;'" 3) the vast majority of all surgical procedures are "elective" and only those instances of impending loss of limb or loss of life fall into the category of "necessary" surgery; 4) advancing age with chronic repetitive use of a joint may be expected to impact unfavorably upon the arthritic condition; 5) the complications of a postoperative deep infection after any major joint replacement surgery is related to the operation itself and not necessarily to the overall physical condition and weight of the patient; 6) obese candidates are less likely than those of normal body habitus to obtain a successful result in joint replacement arthroplasty; 7) the complications experienced by Mr. Rizzo appear to be the result of the procedures themselves, but also in part are attributable to the injury sustained in December 2000; 8) there is no precise method to pinpoint, in terms of percentage of damage, the medical impact of Mr. Rizzo's fall; 9) the medical procedures required were a result of the claimed accident of December 2000. (Ex. 8.)

31. By letter of January 31, 2007, the Board wrote to PERAC again requesting a new medical panel because "the clarification did not address the questions and concerns raised with respect to the first report." (Ex. 20)

32. By letter of March 27, 2007, PERAC denied the Board's request. "PERAC finds that the board should have enough information from the medical panel physicians to make a determination on this application and no reason to grant a new panel at this time." (Ex. 21.)

33. On April 19, 2007, the Board denied Mr. Rizzo's application because he "failed to establish that the permanency of his disability resulted from the claimed injury of December 5, 2000, and did not sustain his burden of proof that his disability was the natural and proximate result of the claimed injury of December 5, 2000. Applicant has a degenerative condition and other factors which appear to have caused his disability." (Ex. 1.) Mr. Rizzo appealed. (Ex. 2.)

CONCLUSION AND ORDER

The decision of the Revere Retirement Board is reversed. The Board shall award accidental disability retirement benefits to Antonio Rizzo.

In order to qualify for an award of accidental disability retirement benefits the Petitioner must demonstrate that he is totally and permanently incapacitated for further duty by reason 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 under G. L. c. 32, s. 7(1).

The Board's denial of this application rests on its opinion that the Petitioner has not met his burden of proof with respect to causation.

The Petitioner bears the burden of proof to establish a causal nexus between a personal injury and his disability. Campbell v. CRAB, 17 Mass. App. Ct. 1018, 460 N.E.2d 213 (1984).

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, 270 (1958).

The Petitioner advances the first hypothesis in Blanchette: that the injury of December 5, 2000 aggravated his asymptomatic degenerative arthritis of the left knee to symptomatic arthritis that required a partial meniscectomy, then a total knee replacement that became infected, then another total knee replacement that has left the Petitioner unable to perform the essential duties of his job.
The medical panel's certification that the disability might be the natural and proximate result of a personal injury sustained while in the performance of one's duties is not conclusive, but is only some evidence to be considered. Wakefield Retirement Board v. CRAB, 352 Mass. 499, 226 N.E.2d 245 (1967); Mathewson v. CRAB, 335 Mass. 610, 141 N.E.2d 522 (1957.).

The final determination on causation is for the Contributory Retirement Appeal Board (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 panel's conclusion that the Petitioner's permanently disabling left knee condition is the proximate result of falling onto his knees on December 5, 2000. Prior to this event, the Petitioner had asymptomatic degenerative arthritis of the knees. After this event, the Petitioner's degenerative arthritis became symptomatic and ultimately disabling.

The Petitioner required a partial meniscectomy of the left knee after the fall in December 2000. After the meniscectomy he underwent a course of conservative care without relief from his severe incapacitating pain. As a result, the Petitioner had a total knee replacement in January 2002. The knee became infected, and the Petitioner had to undergo treatment for the staph infection, and then another total left knee replacement in January 2003. I conclude, therefore, that the injury of December 2000 began an unbroken chain of causation from asymptomatic degenerative arthritis to a torn left meniscus to total left knee replacement to a staph infection to a second total knee replacement to total and permanent disability. The injury of December 5, 2000 is therefore the proximate cause of the Petitioner's permanent disability.

Proximate cause is "that which in a continuous sequence, unbroken by any new cause, produces an event and without which the event would not have occurred." Wallace v. Ludwig, 292 Mass. 251, 198 N.E.159, 161 (1935.)

This is a "but for" standard. But for falling on December 5, 2000, the Petitioner's asymptomatic degenerative arthritis would not have become symptomatic, requiring a partial medial meniscectomy. He would not have required a total knee replacement, which developed an infection, which required a second knee replacement leaving the Petitioner permanently unable to perform the essential duties of is job.

The Petitioner has met the requirements for an award of accidental disability retirement benefits. The Board shall grant accidental disability retirement benefits to Antonio Rizzo.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

___/s/__________________________________________
Maria A. Imparato
Administrative Magistrate


DATED: 6/16/09