Suffolk, ss. Division of Administrative Law Appeals
v. Docket No. CR-07-394
Worcester Retirement Board,
Appearance for Petitioner:
Christine G. Narcisse, Esquire
McGuire and McGuire, P.C.
14 Harvard Street
Appearance for Respondent:
Michael Sacco, Esquire
285 College Highway
P.O. Box 479
Southampton, MA 01073-0479
The Petitioner, a van driver of children with developmental disabilities, has proven that she is entitled to accidental disability retirement benefits after sustaining
a disabling shoulder injury during repetitive pulling of a defective door in order to open and shut it over the course of an entire work day. The Petitioner has also successfully proven that the accommodations offered by the employer were not reasonable in her case.
Pursuant to G.L. c. 32 s. 16(4), the Petitioner, Elizabeth Goodall, is appealing from the May 17, 2007 decision of the Respondent, Worcester Retirement Board (WRB), denying her application for Section 7 accidental disability retirement benefits. (Exhibit 1). The appeal was timely filed. (Exhibit 23). A hearing was held on May 29, 2008 at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, Boston, MA.
At the hearing, twenty-three (23) exhibits were marked. The Petitioner testified in her own behalf. The WRB presented the testimony of John P. Hennessy, Jr., Director of Transportation in the Worcester Public Schools, and the Petitioner's former supervisor. The record was left open for the filing by both parties of post-hearing memoranda of law. The last of these was received on July 2, 2008, thereby closing the record.
FINDINGS OF FACT
Based upon the testimony and documents submitted at the hearing in the above-entitled matter, I hereby render the following findings of fact:
1. The Petitioner, Elizabeth Goodall, d.o.b. 08/14/1950, has been employed as an Aide to the Physically Handicapped and a bus driver in the Worcester Public Schools Department of Transportation since January 27, 2003. In this capacity, her duties included: picking up and driving handicapped children to and from special education classes and events; observing and adhering to the safety rules and requirements of the physical care of these children; supervising the handicapped children during the rides; performing safety checks on vehicles at the beginning and end of each day; providing all of the necessary assistance to the children (lifting and carrying) according to their conditions, prosthetic devices and their special needs; being responsible, within the limits of in-service training for adjusting the devices according to the particular positions of the children when being carried, sitting or standing. The Petitioner also had to open and close the bus door approximately 100 times per day, reach up and put the bus lights on, carry fire extinguishers, and drive with both of her hands on the steering wheel. She was often exposed to the weather during her bus checks and in assisting the children onto the bus. (Testimony and Exhibit 2).
2. In order to drive the bus, the Petitioner was required to hold a Commercial Drivers License (CDL) with passenger endorsement. (Id.).
3. On March 4, 2003, the Petitioner was assigned to operate one of the older buses in the fleet. She encountered a problem when the door kept sticking. At each stop, she had to force the door open and shut with her right hand. She noted this defect in a log kept by the employer. She also reported the defect to a co-worker verbally at the end of her shift. (Testimony and Exhibit 3).
4. On March 5, 2003 while driving her route, the Petitioner felt sharp pain in her right arm and shoulder when she opened and closed the bus door. She had to push the door open and shut each time she moved it. She reported to her supervisor that she was in extreme pain and she left work in order to consult her doctor. (Testimony and Exhibits 2 and 8).
5. The Petitioner consulted with her personal doctor, Randy Wertheimer, M.D., on March 6, 2003, the day after she sustained her injury. Dr. Wertheimer reported, "episodic visit for this 50 year old woman who injured her arm while trying to go through a large heavy door that was pushing over a grate. She pushed very hard and was able to close it, but immediately developed severe pain in her arm and in her shoulder. She did not hear anything crack and she did not actually bruise herself. Since that time, she has felt lame in her left arm (sic) with diffuse pain." (Emphasis added).
Dr. Wertheimer opined that the Petitioner had a right arm strain secondary to pushing on a heavy door. He prescribed the anti-inflammatory medication Naprosyn and advised her to stay out of work for two weeks. (Exhibit 8).
6. In his report of March 6, 2003, Dr. Wertheimer mischaracterizes the etiology of the Petitioner's injury. The Petitioner's credible testimony and the reports of the other treating and evaluating physicians in the record support her claim that she sustained the injury to her shoulder when she was opening and closing the sluggish bus door.". (Id.).
7. The Petitioner was seen by a Dr. K. Barnard on March 12, 2003 in order to get additional medical documentation of her injury. She told the doctor that her employer was pressuring her to return to an 8 hour work day notwithstanding the medical excuse that was provided to her the previous week. The doctor indicated that she was able to return to work the following week for 4 hours each day with no lifting at all on the right and very light lifting on the left. The Petitioner reported that she had constant pain that was not alleviated by the Naprosyn. (Id.).
8. On March 20, 2003, Dr. Wertheimer reported that the Petitioner continued to have pain in her biceps area and that she was developing limitation of range of shoulder movement. He reported that she was to continue on light duty. (Id.).
9. The Petitioner returned to light duty on or about March 20, 2003 and worked in this capacity until the end of that school year. She sat in a trailer and answered phones or processed time cards. She was not required to drive a bus while she was on light duty, however, she was still experiencing shoulder pain upon her return. She started a course of physical therapy. (Testimony and Exhibits 8 and 10).
10. On May 1, 2003, Dr. Wertheimer reported that the Petitioner was two thirds improved, and that the pain had localized and intensified in the right forearm area. (Exhibit 8).
11. In August 2003, the Petitioner took part in a work hardening program. (Id.).
12. On August 25, 2003, Dr. Wertheimer indicated that the Petitioner was ready to return to full duty, an 8 hour shift, after she completed the work hardening program. (Id.).
13. The Petitioner returned to full duty and worked 6 to 8 hour shifts during the first couple of weeks of the new school year. Her right arm always hurt, but the pain was less intense than that immediately following the March 2003 injury. She reported that the pain was now located in the upper arm and right shoulder, and, that she could not raise or rotate her arm without a deep aching. (Id. and Testimony).
14. An October 1, 2003 MRI revealed a full thickness tear of the distal supraspinatus tendon. (Exhibits 10 and 13).
15. The Petitioner stopped working again on or about October 10, 2003. She collected Workers Compensation benefits. (Exhibit 4).
16. An MRI of the cervical spine on October 4, 2003 revealed multilevel degenerative spondylosis with a slight right sided component at C5-6. (Exhibit 10).
17. Shoulder x-rays on October 24, 2003 revealed enthesophyte formation along the undersurface of the acromion. (Id. and Exhibit 11).
18. On February 24, 2004, the Petitioner underwent surgery to repair her rotator cuff tendon. Robert Q. Terrell, M.D. performed the surgery at the UMass Memorial Medical Center. (Exhibit 13).
19. Due to the placement of the anesthesia tube in her mouth, the Petitioner sustained cuts in her mouth and contracted temporomandibular joint syndrome (TMJ) during the surgery. The injuries to her mouth caused her to embark on an extensive course of treatment for TMJ. Due to mouth pain, she was unable to eat normally for an extended period, instead having to consume liquids and soft foods through a straw. (Exhibit 14 and Testimony).
20. In addition to the new problem with TMJ, the Petitioner reported no improvement in her shoulder after the surgery. She began physical therapy but was unable to continue due to the intense pain. She also became clinically depressed. Because she was teary and anxious, she was started on an antidepressant after being diagnosed with Major Depressive Disorder. (Id. and Exhibits 8, 11 and 16-17).
21. The Petitioner underwent an independent medical evaluation performed by Thomas Antkowiak, M.D. on August 18, 2004. She reported that she was worse since the surgery. She stated that she had intermittent sharp pains in her right shoulder with a continuous aching pain at all times.
Dr. Antkowiak noted that the Petitioner had lost some range of motion following the surgery. He could not explain the reason for her continued symptomatic condition. He opined that her anxiety and depression may be significantly impacting her situation, and, that, although orthopedically she may be able to return to work, the level of her anxiety and depression would prevent her from driving a school bus. The doctor's diagnoses were: chronic right shoulder pain, status post surgical procedure; and, chronic anxiety and depression. (Exhibit 15).
22. X-rays taken on August 20, 2004 revealed a mild bony irregularity along the inferior aspect of the acromion with small bony spur formations and mild degenerative changes at the acromioclavicular joint. Minimal bony degenerative change was noted about the neck of the head of the right humerus. (Exhibits 8 and 11).
23. The Petitioner resumed physical therapy in the late fall of 2004 and experienced some relief in her shoulder. She still suffered from depression. She continued to take Lexapro for depression and Oxycontin for shoulder pain. (Id.).
24. On December 17, 2004, Dr. Antkowiak conducted another independent medical evaluation of the Petitioner. She stated that her right shoulder was sore all of the time. She also indicated that she felt intermittent "jolting" pains in her right shoulder when she reached or turned her arm in certain directions. Dr. Antkowiak's diagnoses remained the same, however, and he noted that the Petitioner had gained range of motion in the right shoulder. Dr. Antkowiak stated that the Petitioner remained unable to perform the duties of a school bus driver due to her anxiety and depression. (Exhibit 15).
25. The Petitioner was evaluated by James G. Nairus, M.D. on January 19,2005. She complained of right shoulder pain that was mostly on the anterior and lateral aspect of the right shoulder and radiated down the lateral aspect of the right arm and elbow. Dr. Nairus concluded that the Petitioner suffered from chronic right shoulder pain from either impingement syndrome or a recurrent rotator cuff tear. He noted that she would be unable to manipulate the door handle on a school bus. He added that she was totally disabled at that time. (Exhibit 18).
26. On January 21, 2005, Dr. Wertheimer reported that, although the Petitioner had improved slightly with her treatment for anxiety and depression, she was still chronically tearful and ill prepared to handle the stress of all of her physical problems. He noted that she had 19 months of significant disability after the injury on March 5, 2003, and that it was extremely unlikely that her condition would improve any further. He opined that she would never again be able to perform as a school bus driver. (Exhibit 2).
27. The Petitioner applied for accidental disability retirement benefits on February 5, 2005. She listed her disabling conditions as the right shoulder injury, the development of severe TMJ and the onset of extreme anxiety and depression. In the application, she indicated that the forceful pushing and pulling of the bus door on March 5, 2003 had caused a severe injury to her right shoulder/arm. (Id.).
28. On April 7, 2006, the Petitioner was offered a light duty position by the Worcester Public Schools. She was asked to return to work as the driver of a seven-passenger van. She was told that this would require no opening and closing of doors. She was guaranteed to have a bus monitor with her at all times. She would not be required to lift children. All of the children on her bus would be ambulatory. (Testimony and Exhibit 4).
29. In response to the employer's offer, on April 13, 2006, the Petitioner's attorney reported that the combination of medical impairments to the Petitioner rendered her totally disabled and incapable of performing any type of work. (Exhibit 4).
30. Single Physician Medical Panel Doctor Hwa-hsin Hsieh, an orthopedist, evaluated the Petitioner on July 26, 2006. Dr. Hsieh answered the Certificate "yes, yes, yes." The diagnosis was "post status right rotator cuff tendon tear repair decompression acromion. Post-op developed TMJ syndrome, and depression and anxiety which required psychiatric and psychologist treatment." (Exhibit 5).
31. In the narrative report, Dr. Hsieh thoroughly summarized the history of the Petitioner's injury and medical treatment. The doctor set forth the following conclusion:
Patient's job is basically driving a bus, which includes deliveries of handicapped students, which the activity at this time (sic) I don't see patient capable of being able to perform duties, which is causally related to initial injury on March 5, 2003 when she developed rotator cuff tendon rupture. (Id.).
32. Single Physician Medical Panel Doctor Lawrence H. Luppi, also an orthopedist, evaluated the Petitioner on August 2, 2006. Dr. Luppi answered the Certificate "yes, yes, yes." The doctor's diagnosis was "status-post right shoulder surgery with residual." (Exhibit 6).
33. In Dr. Luppi's narrative report, he thoroughly summarized the Petitioner's
injury and treatment history. He concluded:
It is my opinion that the above diagnosis is directly related to the injury sustained at work on 3/5/03 as described. It is further my opinion that as a result she is left with permanent work restrictions that would not allow her to be able to return to her former occupation as an aide to handicapped students.
34. Single Physician Medical Panel Doctor DeWitt Brown evaluated the Petitioner on August 16, 2006. He answered the Certificate "yes, yes, yes." The doctor's diagnosis was "adhesive capsulitis right shoulder status post repair of rotator cuff tear." (Exhibit 7).
35. On January 11, 2007, counsel for the WRB wrote to the Panel Doctors and informed them that the Petitioner had been offered a position with the accommodation that she would be assigned to a vehicle which did not require her to use her arm or shoulder to open and close the doors of the vehicle. The WRB attorney added that the Petitioner would not be required to perform the physical aspects of the position related to lifting and carrying 75 pounds, pushing or pulling 40 pounds or carrying children. The Doctors were asked whether, after learning this new information, the Petitioner was capable of returning to the light duty position. (Exhibits 5-7).
36. On February 2, 2007, Dr. Brown responded to counsel's inquiry. He stated:
She certainly would be capable of performing a job which involves operating a vehicle which does not require her to use the right upper extremity to open and close doors, no lifting/carrying 75 pounds, no push/pull up to 40 pounds and no lifting or carrying children, as noted in the letter of January 7, 2007.
37. Dr. Hsieh responded to counsel's inquiry on March 5, 2007. The doctor
…patient will still be limited from elevation of the arm beyond shoulder level, which will limit the patient from opening the door, closing the door and assisting the passengers and obviously if her job is only getting into the car and driving, obviously she should be able to do that, but in view of postoperatively (sic) the patient also developed so-called depression and anxiety and requires psychiatric evaluation and treatment, which will require she be evaluated from psychiatrist in regard to that aspect...
38. On April 10, 2007, Dr. Luppi responded to WRB's counsel. He indicated:…based on the findings described in my evaluation of August 2, 2006, she would be unable to perform all the essential duties of this position, even with the exclusion of the lifting, carrying and pushing/pulling requirements. (Exhibit 6).
39. On May 17, 2007, the WRB denied the Petitioner's application for accidental disability retirement benefits "based on medical determination and job accommodations." (Exhibit 1).
40. The Petitioner filed a timely appeal. (Exhibit 23).
41. On June 7, 2007, the Petitioner underwent a medical evaluation in order to try and obtain a School Bus Operator Certificate. Dr. Wertheimer reported that with the sudden movements inherent in driving a bus, the Petitioner would experience pain and this would affect the safety of her and the bus passengers. Dr. Wertheimer indicated that the combination of her shoulder injury, anxiety and depression rendered her unable to drive a bus. He added that the passengers would be at risk. Dr. Wertheimer concluded that the Petitioner did not meet the standards for qualification for a two year certificate. (Exhibit 20).
42. Without a valid School Bus Operator Certificate, the Petitioner is ineligible for a School Pupil Transport License (7D). (Exhibit 22, pages 7 and 34).
Citing Foresta v. Massachusetts Turnpike Employees' Retirement Board, CR-04-512 (DALA, 2005)(CRAB, 2006), the WRB has contended that the Petitioner was offered an accommodated position on April 7, 2006 which would not require that she deviate from the physical limitations on her right shoulder and would not result in loss or pay or benefits. The WRB contends that the Petitioner's refusal to accept the reasonable accommodation disqualifies her from receiving accidental disability retirement.
The Foresta case is inapposite here for three reasons. First, the Petitioner cannot legally perform the modified duty of seven person van driver. She cannot obtain a 7D license. Therefore, she does not meet the criteria for the position. Next, the Petitioner has not received medical approval to perform the modified duty. Dr. Wertheimer failed to provide the necessary medical clearance for the Petitioner in order for her to obtain the School Bus Operator Certificate. Thus, the Petitioner has failed to meet another of the criteria for the position. Third, the safety of the Petitioner and any other passengers in the van is at issue during every trip that she would be the driver. While the Petitioner's primary responsibility would be driving the van and she would not be required to lift children in and out of the van, she would have the inherent responsibility of ensuring their safety in the event of any type of emergency. This responsibility might necessitate some physical contact with the children or parts of the vehicle which would involve her compromised shoulder. The Petitioner in Foresta, supra, did not face these inherent risks and responsibilities in his modified employment. He was given administrative responsibilities to be performed in one location. He was also given the opportunity to shift his position every thirty minutes. He was neither legally nor medically precluded from performing the proposed modified work. The Foresta case is not controlling here. A reasonable accommodation must be both reasonable and accommodating to the employee. The position created for and offered to the Petitioner was neither.
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 she is totally and permanently incapacitated from performing the essential duties as a result of an injury sustained or hazard undergone while in the performance of 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 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 Petitioner is entitled to prevail in this appeal. In this case, the Petitioner has met her burden of proving that she qualifies for accidental disability retirement benefits. In responding to the original Certificate after reviewing the Petitioner's actual job description, the Panel Doctors, who had all of the pertinent medical reports and diagnostic studies, answered all three questions in the affirmative. The Panel doctors displayed an adequate understanding as to the nature of the Petitioner's original injury at work; her treatment history; and, her physical job requirements. In their original responses, the doctors did not apply any erroneous standards, lack any pertinent medical facts or engage in any procedural irregularities. Their initial opinions must be weighed heavily. The opinions of the Petitioner's treating physicians are also supportive of the Panel's original findings.
The Panel doctors' letters of clarification are weighed far less heavily not only because of the aforementioned factors that prevent the Petitioner from performing the "reasonable accommodation," but also because it is unclear what specific job description was actually shown to the Panel doctors that represented the reasonable accommodation. The modified job description was not put into the record. However, it is reasonable to infer that her every day duties in the modified position would not only involve her driving full shifts, but also performance of daily maintenance checks, administrative record keeping, carrying equipment such as the fire extinguisher, and her inherent, constant responsibility for the safety of all van passengers. Finally, the Panel did not address the question of whether her underlying Major Depression would impede her performance of even the shortest of automobile rides. Cf. Joshua Filipek v. Bristol County Retirement Board, CR-03-672 (DALA, CRAB 2004).
The Respondent has also challenged the Petitioner's version of how she was injured. The Respondent has contended that, if the bus door was actually functional on the day in question, the Petitioner would have been injured while executing a common movement and she would be precluded from an accidental disability award by virtue of Adams v. CRAB, 414 Mass. 360 (1993). This argument also lacks merit. First, I have found the Petitioner's description of her injury to be credible. She did make an entry into the log book on March 4, 2003 regarding her difficulties with the bus door. Further, she notified her supervisor and co-workers immediately after the injury and she told the same story to them as she did to all of the health care providers. More importantly, even if the Petitioner's injury were the result of a common movement, the Superior Court has stated that, if there is no evidence of a pre-existing condition or no evidence that the injury was the result of a gradual deterioration, then the Petitioner did not sustain a "wear and tear" injury of the sort precluded by the Adams case, supra. Holly Clancy was a police officer who reached over to pull open the cruiser door and felt a pop and severe pain in her left shoulder, ultimately leading to total and permanent disability. The court found that Clancy had a right to Section 7 benefits and that CRAB had committed an error of law in denying her claim on the basis of Adams. See Holly M. Clancy v. CRAB, Plymouth Superior Court Civil Action No. PLCV2006-1012A (Locke, J., October 24, 2007). In conclusion, the Petitioner has put forth a strong and credible case which the Respondent has failed to refute. The decision of the WRB denying her application for Section 7 benefits is reversed. This matter is remanded in order for the application to be granted and the benefits to be awarded.
Division of Administrative Law Appeals,
DATED: July 24, 2009