COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS

Appeal of:

Denis Tourtellotte,


Petitioner

v. CR-07-640

Worcester Retirement Board,

Respondent

Appearance for Petitioner:

Sean McGrail, Esq.

Donahue, Rauscher & McGrail, PC
23 Harvard Street
Worcester, MA 01690

Appearance for Respondent:

Lane Rideout, Esq.,

Law Offices of Michael Sacco
285 College Highway
P.O. Box 479
Southampton, MA 01073

Administrative Magistrate:

Joan Freiman Fink, Esq.

SUMMARY OF DECISION


This matter is remanded to the same Medical Panel with instructions to review the report concerning the facet joint injections administered to the Petitioner after the initial Panel examination. After reviewing that report, the Medical Panel should then re-address the first certificate question concerning disability to determine whether it arrives at a different response or whether it re-affirms its original conclusion.

DECISION

Pursuant to G.L. c. 32, § 16(4), the Petitioner, Denis Tourtellotte, is appealing the August 20, 2007 decision of the Respondent, Worcester Retirement Board, denying his application for accidental disability retirement benefits. (Exhibit 1.) The appeal was timely filed in accordance with the provisions of G.L. c. 32, § 16(4).

A hearing pursuant to G.L. c. 7, § 4H was held on April 28, 2009 at the offices of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA. Various documents were entered into evidence at the hearing. (Exhibits 1 -21.) The Parties' Joint Pre-hearing Memorandum was marked as "A" for identification. The Petitioner testified in his own behalf. One cassette tape recording was made of the hearing.

FINDINGS OF FACT


Based on the testimony and evidence presented, I make the following findings of fact:

1. The Petitioner, Denis Tourtellotte, d.o.b. 6/4/58, commenced employment in or about November 1995 with the Worcester Housing Authority as a carpenter. He remained in that position until June of 2005 (Testimony of the Petitioner.)

2. His duties as a carpenter included performing general maintenance and repairs in the approximately 5,000 apartment units operated by the Worcester Housing Authority. Among the repairs the Petitioner routinely was called upon to perform was the replacement of doors and window frames, countertops, cabinetry and security locks. (Testimony of the Petitioner, Exhibit 6.)

3. The Petitioner frequently had to lift the doors to be replaced. The weights of these doors varied from 50 pounds to 200 pounds. Although he usually had one helper when he was required to lift a 200 pound door, on occasion, the Petitioner had to lift doors weighing in excess of 150 pounds by himself. (Testimony of the Petitioner.)

4. In or about 1997, the Petitioner received a work-related injury to his back while lifting heavy doors. He remained out of work for a period of six weeks when he returned to full duty. (Testimony of the Petitioner.)

5. In or about 2002, the Petitioner injured his back at work, again while lifting heavy doors. He remained out of work for three months recuperating from this injury and then resumed his full duties as a carpenter. (Testimony of the Petitioner.)

6. On June 2, 2005, the Petitioner was injured when he fell at work while unloading heavy aluminum materials from his truck. He landed on the cement injuring his back, shoulder, and left hip. A co-worker, who witnessed the incident, called an ambulance and Mr. Tourtellotte was transported to UMass Medical Center. (Testimony of the Petitioner.)

7. X-rays taken on that date, June 2, 2005, at UMass Medical Center revealed back, shoulder, and hip strain with no evidence of fracture. (Exhibit 18B.)

8. A CT scan of the thoracic spine also taken on June 2, 2005, revealed "no evidence of acute fracture or malalignment from T1 through T9. Significant scoliosis with degenerative changes." (Exhibit 18B.)

9. The Petitioner has suffered from back and hip pain subsequent to the injury of June 2, 2005 up to and including the present date. He has been treating with Dr. Talal Bou-Harb, an internist The Petitioner currently takes the pain medication "Percocet" three times daily. (Testimony of the Petitioner.)

10. Following Dr. Bou-Harb's recommendation, the Petitioner underwent a series of cortisone injections. However, these injections did not alleviate the pain. (Testimony of the Petitioner, Exhibit 21.)

11. After the completion of the cortisone injections, some the Petitioner's physicians recommended that he try facet joint injections. However, the Petitioner declined this treatment at that time as he felt that the injections would likewise not mitigate his symptomatology. (Testimony of the Petitioner.)

12. The Petitioner did not return to work after June 2, 2005. He has been receiving workers' compensation benefits from the date of the incident in June of 2005 up to and including the present date. (Exhibits 8 & 9; Testimony of the Petitioner.)

13. The Petitioner underwent a left hip replacement in November of 2005 performed by Dr. Walter LeClaire at UMass Medical Center. (Exhibits 18C & 18D; Testimony of the Petitioner.)

14. On June 27, 2006, the Petitioner filed an application for accidental disability retirement benefits claiming that he was permanently disabled from performing the essential duties of his position based on the personal injury sustained on June 2, 2005 when he fell from a truck while unloading supplies at work. (Exhibit 3.)

15. Dr. Philip Lahey, an orthopedic surgeon, filed a Statement in Support of the Application. Dr. Lahey responded to the three certificate questions in the affirmative indicating that the diagnosis is "degenerative disc disease" with a secondary diagnosis of "chronic low back sprain." He also noted that the Petitioner had a "possible small tear of the supraspinatus tendon." Dr. Lahey concluded that he "believe(s) this disability is permanent and causally related to the fall off the truck in June of 2005." (Exhibit 4.)

16. On August 1, 2007, the Petitioner was examined by a Regional Medical Panel that was comprised of Dr. Hillel Skoff, chairman, specializing in orthopedic surgery, Dr. David Krohn, specializing in internal medicine and Dr. Robert Levine, specializing in neurology. (Exhibit 12.)

17. The Medical Panel performed a physical examination of the Petitioner including range of motion testing, straight leg raising testing, and reflex testing. In addition, the Medical Panel reviewed the x-rays of his low back performed in both 2002 and 2005 as well as the surgical report of Dr. LeClaire and the medical reports of Drs. Talal Bou-Harb, Joseph Bradley, and Edward Calkins. (Exhibit 12.)

18. After conducting its examination and review of the medical records, the Medical Panel diagnosed the Petitioner as suffering from chronic low back pain and status-post left hip replacement and concluded that there is an "absence of objective findings to account for his (Tourtellotte's) complaints." (Exhibit 12.)

19. The Medical Panel then responded to the first certificate question concerning disability in the negative indicating that the Petitioner is not disabled from performing the essential duties of his position as a Carpenter. However, the Panel noted that with respect to the range of motion testing, the Petitioner was noted to have range of motion limited principally to backward flexion, raising the possibility of facet arthropathy accounting for his complaints. (Exhibit 12.)

20. The Medical Panel also added that its "review of all available medical records has not indicated he (Tourtellotte) has received facet joint injections, and the claimant has not related that he has had facet joint injections. It is the Panel's opinion that facet joint injections should be performed since his range of motion findings could be consistent with the diagnosis of facet arthropathy … The Panel would be pleased to review medical records following an adequate trial of facet injections." (Exhibit 12.)

21. On August 20, 2007, the Worcester Retirement Board sent the Petitioner written notification that his application for accidental disability retirement had been denied. (Exhibit 1.)

22. On August 22, 2007, the Petitioner filed an appeal of this decision with the Contributory Retirement Appeal Board. (Exhibit 2.)

23. In or about August of 2008, the Petitioner underwent a series of facet joint or intralaminar epidural steroid injections at the L4-5 level performed by Dr. Christian Gonzalez, an anesthesiologist. His pain did not alleviate as a result of having received those injections. (Exhibit 21; Testimony of the Petitioner.)

CONCLUSION

In order to receive accidental disability benefits pursuant to G.L. c. 32, § 7, an applicant must establish by substantial evidence, including an affirmative medical panel certificate that he/she is totally and permanently incapacitated from performing the essential duties of his/her position as a result of an injury sustained or hazard undergone while in the performance of his/her duties. The medical panel's function is to determine "medical questions which are beyond the common knowledge and experience of the local board (or the Appeal Board)." Malden Retirement Board v. CRAB, 298 N.E. 2d 902, 1 Mass. App. 420 (1973). Unless the panel applies an erroneous standard to fails to follow proper procedures, lacks pertinent facts, 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).

In the current case, I conclude that the Medical Panel, in rendering its response to the question concerning disability, lacked pertinent facts in that it did not have the benefit of reviewing the results of the facet joint injections that were performed on the Petitioner in August of 2008. In its narrative report, the Panel indicated that the Petitioner demonstrated limited mobility on the range of motion testing. The Panel noted that this limitation may be caused by facet arthropathy and then suggested that he undergo a series of facet joint injections.


Acting upon the Panel's recommendation, in or about August of 2008, the Petitioner underwent a series of facet injections performed by Dr. Christian Gonzalez. Since these injections occurred subsequent to the Panel's examination, the members of the Panel did not have an opportunity to review the results prior to arriving at its determination concerning whether the Petitioner is disabled from performing the essential duties of his position as a Carpenter with the Worcester Housing Authority. In its narrative report, the Panel indicated that it "would be pleased to review medical records following an adequate trial of facet injections." In order to have a fair and comprehensive assessment of the issue of the Petitioner's ability to perform the essential duties of his position as a Carpenter with the Worcester Housing Authority, the Medical Panel should be afforded the opportunity to review the medical records relating to the facet joint injections performed in August of 2008.

Accordingly, I order that the matter should be remanded to the same Medical Panel and that the Panel be given the comprehensive report concerning the facet joint injections that occurred in August of 2008. After reviewing those records, the Medical Panel should then re-address the first certificate question to determine whether it arrives at a different response or whether it re-affirms its original conclusion. If the Medical Panel changes its response to the question concerning disability, it must then answer the subsequent two questions concerning permanence and causation.


SO ORDERED.


DIVISION OF ADMINISTRATIVE LAW APPEALS

\s\

Joan Freiman Fink
Administrative Magistrate
Dated: August 11, 2009