THE COMMONWEALTH OF MASSACHUSETTS


Suffolk, ss. Division of Administrative Law Appeals

Joseph P. Clancy,

Petitioner

v. Docket No. CR-08-321

Bristol County Retirement Board,

Respondent

Appearance for Petitioner:

Alfred Gordon, Esquire

Pyle, Rome, Lichten, Ehrenberg & Liss-Riordan, P.C.
18 Tremont Street, Suite 500
Boston, MA 02108

Appearance for Respondent:

Michael Sacco, Esquire

285 College Highway
P.O. Box 479
Southampton, MA 01073-0479

Administrative Magistrate:

Judithann Burke

CASE SUMMARY


Building Inspector in Town of Norton applied for accidental disability retirement on the basis of an injury he sustained when he climbed over a full length counter/ barrier in order to reenter his office from an outside door, an injury not sustained while in the performance of his duties. Eighteen months later, in December 2006, he reinjured his back while getting out of a chair, a common movement which is not compensable under Section 7. The Petitioner continued to work on light duty after the December 2006 injury until he was placed on administrative leave on December 12, 2006. He was provided with a lawful reasonable accommodation.

DECISION

Pursuant to G.L. c. 32 § 16(4), the Petitioner, Joseph P. Clancy, is appealing from the April 22, 2008 decision of the Respondent, Bristol County Retirement Board (BCRB), denying his application for accidental disability retirement benefits prior to the convening of a regional medical panel. (Exhibit 1). The appeal was timely filed. (Exhibit 2). A hearing was commenced on January 9, 2009 then continued to January 22, 2009 when it was heard to completion at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, Boston, MA.

At the hearing, twenty-four documents were marked as exhibits. Exhibit 25, a compact disc (CD) containing video surveillance of the Petitioner on three different dates, was also entered into evidence. The CD was watched by the Administrative Magistrate and both parties during the first day of hearing. The Respondent presented the testimony of the following witnesses: Captain William Downes of the Town of Easton Fire Department and elected member of the BCRB; and, Charles Haskell, Senior Investigator at American Investigative Services. The Petitioner testified in his own behalf. A total of three (3) audiotapes were made of the proceedings; one (1) on January 9 and two (2) on January 22, 2009. The record was left open for the filing by the parties of post hearing memoranda of law. These were received at DALA on March 3, 2009 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 finding of fact:

1. The Petitioner, Joseph P. Clancy, d.o.b. 08/21/1949, began employment as the Building Inspector for the Town of Norton on September 21, 2000. He worked Monday through Friday from 8:30 AM to 4:30 PM. He was responsible for running the inspection office, including the supervision of inspectors and clerical staff. He also performed all of the tasks necessary to the carrying out of all stages of building inspections. He spent about half of his time in his office and the other half performing inspections. (Testimony and Exhibits 5 and 7).

2. While working in his office, the Petitioner reviewed applications and other documents related to building permits. He sat for extended periods of time, and he climbed stairs. When he was out in the field, the Petitioner performed soil inspections, foundation inspections, rough frame inspections and final building inspections. This all involved much climbing, twisting, lifting and navigating some narrow beams and other precarious settings during different stages of construction. (Id.).

3. The Petitioner saw his primary care doctor, Ross Reel, M.D., on May 13, 1999 for chronic low back pain. The doctor reported that the Petitioner had experienced low back pain since he had landed on his tailbone while he was performing a back flip as a gymnast during the seventh grade in the early 1960's. The Petitioner informed the doctor that his back pain had been worse over the ensuing months. He also reported that he had recently been waking up with pain over the lateral aspect of his hips. The doctor advised him to undertake a regular program of stretching and strengthening. (Exhibit 14).

4. On June 20, 2005, the Petitioner was alone in his office. The secretary was out of the office and other inspectors were out on the road. . He left his office in order to go downstairs and retrieve the mail. When he did so, he inadvertently locked his office door, the only means of ingress and egress to his inside office. To regain access, he went around to the outside door of the office, the public means of ingress and egress to a service counter that spanned from wall to wall. There was no doorway into his office from this outer area.
The Petitioner climbed up on and over the counter. As he was rolling off of the counter, his cell phone caught on the counter and he fell four feet down to the floor and landed on his back. He also hit his head. He remained on the floor for several minutes, then got up and reported the incident to the nurse in the office next door. He also made a report to the Assistant Town Manager. His low back was aching. He was unable to stand up straight. (Testimony and Exhibits 5, 8 and 14).

5. The Petitioner continued to work half days for several weeks following the injury. (Exhibit 14).

6. On June 27, 2005, the Petitioner saw Dr. Reel for his low back pain. The doctor reported that the Petitioner had fallen "at work one week ago and injured his back; continues to have low back pain; with certain movements he gets radiation down his right leg and this pain is severe; takes Vicodin and soma during the day; has been going to work but no climbing or lifting and is working half days". The Petitioner was treated conservatively with ice and medications and he was referred to physical therapy. Dr. Reel's initial diagnosis was "lumbar contusions."(Id.).

7. On June 29, 2005, Dr. Reel updated his notes to indicate that the Petitioner was also referred for an MRI of the head at that time because of anosima (loss of sense of smell) and tremors. The Petitioner had complained of a loss of smell and an intermittent tremor in the left arm. The Petitioner also reported a long history of migraine headaches. He complained of elbow pain. The elbow pain was diagnosed as "tennis elbow", or "bilateral humeral epicondylitis." This condition was also treated conservatively. (Id.).

8. A June 29, 2005 MRI of the brain revealed small vessel disease with no evidence of stroke or tumor. (Exhibits 15 and 16).

9. On July 16, 2005, the Petitioner saw William Mullahy, M.D., a neurologist, for the tremors in his left arm. Dr. Mullahy indicated that he was concerned about the possibility of early Parkinson's disease. The Petitioner reported that, in addition to the tremors, he had been walking very slowly over the previous month, which he attributed to low back pain. (Exhibit 16).

10. The Petitioner returned to work full time in July 2005 and continued to work through the summer with restrictions on lifting and climbing. He collected temporary Workers' Compensation benefits from July 12, 2005 through August 28, 2005 at which time the benefits were terminated. (Exhibits 7 and 10).

11. The Petitioner continued treating with Dr. Reel and undergoing physical therapy through the summer of 2005. His back pain became worse if he tried to lift. (Exhibit 14).

12. On September 23, 2005, the Petitioner informed Dr. Reel that he had been able to keep working with restrictions on lifting and climbing, but that the low back pain had not improved. The restrictions included: no lifting a weight greater than ten pounds; climbing limited to one to two hours; and limited bending and squatting. At this time, Dr. Reel indicated that the Petitioner suffered from a "lumbar strain." (Id.).

13. In late October 2005, the Petitioner stopped undergoing physical therapy because of increased pain. (Id.).

14. A November 17, 2005 MRI of the lumbar spine revealed:
Impression:
1. At the L5-S1 level, there is a small disc protrusion, more prominent
to the right. The protruding disc abuts the S1 nerve roots, greater right
than left. Mild bilateral facet hypertrophy and hypertrophy of the
ligamentum flavum is identified.
2. At the L3-4 level, there is a posterior disc bulge which effaces the L4 nerve roots. Bilateral facet hypertrophy and hypertrophy of the ligamentum flavum is noted. There is moderate foraminal stenosis.
3. Degenerative changes involving the L3-4, L4-5 and L5-S1 intervertebral discs.

(Exhibits 15 and 17).

15. On December 2, 2005, the Petitioner reported to Dr. Reel that he was making slow progress. He noted that his daily walking was helping his low back symptoms. By late December 2005, the Petitioner told Dr. Reel that he had increased the number of Darvocet he used to six per day because he was tired of living with the pain from taking a lower dose. He continued to work with restrictions. (Exhibit 14).

16. On February 6, 2006, Dr. Reel changed the Petitioner's muscle relaxant medication from Soma to Flexeril for the latter's additional pain relieving properties. The Petitioner was seeing a chiropractor three times per week at that point, but he did not feel that it was helping a great deal. During this appointment, the Petitioner also informed Dr. Reel that he had been experiencing increasing mental slowness. He indicated that he had not been able to pass the open book certification test for work. He also complained that he had a constant tremor. Dr. Reel raised the question of whether the Petitioner had Parkinson's disease. At this point, Dr. Reel indicated that the Petitioner was not to perform any outside inspections at work. (Id.).

17. The Petitioner saw the neurologist, Dr. Mullahy, again on February 17, 2006. He told the doctor that he was having trouble with activities of daily living, including buttoning his shirt, tying his tie and tying his shoes. He stated that he walked slowly, and he then attributed this to low back problems. Dr. Mullahy noted during this visit that the tremor of the left arm was easily suppressed and, that there appeared to be a volitional component to the symptoms. He also noted that the patient walked slowly with a rigid posture. The doctor prescribed Sinemet and noted that he suspected early Parkinson's disease. (Exhibit 16).

18. In a note addressed "To Whom It may Concern" dated February 17, 2006, Dr. Mullahy indicated that the Petitioner had been under his neurologic care for tremor. The doctor stated that the patient would require an extension for certification requirements for his position as inspector, and, that he should be allowed twice the usual time to complete the testing. (Id.).

19. A February 24, 2006 MRI of the cervical spine revealed a posterior disc protrusion at C4-5 and disc bulges at C5-6, C6-7 and T1-2. The bulging discs at C6 and C7 abutted the nerve roots. (Exhibit 15).

20. The Petitioner saw Dr. Reel for a follow up of back pain on May 2, 2006.

At that time, Dr. Reel noted that the Petitioner had begun taking the medication Sinemet

for his tremors. The Petitioner was not sure whether the medication had helped. He

reported to the doctor that he had lost significant motor control of his left arm and that he

could no longer play the guitar, mandolin or banjo. (Exhibit 14).

21. On May 15, 2006, the Petitioner reported to Dr. Mullahy that he had noted some improvement in the tremors, but that he was bothered by being restricted in his movements. He moved very slowly (bradykinesia). The doctor changed the medication from Sinemet to Requip. (Exhibit 16).

22. On June 17, 2006, Dr. Mullahy reported that the Petitioner had noted improvements after taking the Requip, although he still could not play the guitar. The doctor rendered the diagnosis "Parkinson's disease." (Id.).

23. The Petitioner worked with restrictions into the summer of 2006. On June 23, 2006, Dr. Reel addressed a letter "To Whom it May Concern" that the Petitioner should continue with the following restrictions at work: 1) no outside inspections; 2) no lifting of more than ten pounds; and 3) he should avoid climbing, squatting, bending and twisting. (Exhibit 14).

24. Some time in the summer of 2006, the Petitioner's employer hired two part time building inspectors to be available to assist the Petitioner in those duties he was unable to perform. The employer heeded the June 23, 2006 letter from Dr. Reel and modified the Petitioner's other job duties accordingly. These part-time inspectors were available for nineteen hours a week. (Exhibit 7 and Testimony).

25. On July 21, 2006, Dr. Reel indicated that he was referring the Petitioner to a pain program for advice from a pain specialist about the management of his back pain. (Exhibit 14).

26. On July 21, 2006, Dr Mullahy changed the Petitioner's medication from Requip to Mirapex due to the Petitioner having nausea on the Requip. (Exhibit 16).

27. The Petitioner saw Dr. Mullahy again on September 8, 2006. The doctor noted that the patient had not noticed any progression of his gait abnormality or significant worsening of the bradykinesia. Dr. Mullahy stated that the Petitioner had stopped taking the muscle relaxant Soma in late July 2006 and started Neurontin. He suffered several major motor seizures. He went back to taking the Soma. His left arm tremors continued. He also had a mild tremor in the right arm. Dr. Mullahy advocated that the patient come off of all narcotic medications and begin taking a trial of Lyrica.
In addition, Dr. Mullahy noted that the Petitioner's back complaints were out of proportion to his MRI findings. (Id.).

28. On September 15, 2006, Dr. Reel noted that the Petitioner's back pain seemed to be doing better, but, that he was experiencing ongoing problems with family stress. The Petitioner informed Dr. Reel that he had seen a lawyer about applying for medical disability. The Petitioner indicated that he was having problems driving to work and that he was unable to do lifting. Dr. Reel indicated that the Petitioner was to perform no outside inspections. (Exhibit 14).

29. The Petitioner saw neurologist Bonnie Hersh, M.D. on September 21, 2006. He reported that the tremor in his left arm felt worse in the morning. He also indicated that his voice did not project as well, and, that he was slow to get up out of a chair. He attributed this to his low back pain. The doctor noted that he also had a postural tremor. The Petitioner stated that his balance was not quite as good as it had been and he needed to be a bit more cautious, although he had not yet fallen. The doctor wondered whether some of the Petitioner's back discomfort was related to his axial rigidity (rigidity of the trunk and head). The doctor opted to change his medication to Rasagiline. The Petitioner was to continue trying to taper off of the Soma. (Exhibit 20). 30. The Petitioner got out of his chair at work during the morning of December 4, 2006 and felt back pain. He informed a co-worker over the phone that he would be unable to attend an upcoming seminar. He remained at work and reported the incident to Dr. Reel the next day. He completed a medical incident report on December 13, 2006. (Testimony and Exhibits 5, 8, and 11).

31. On December 5, 2006, Dr. Reel noted that the Petitioner was there for a follow up of low back pain. The Petitioner informed the doctor that he was unable to perform outdoor inspections which were part of his job. He indicated that he was contemplating going out on permanent disability and that he was under a lot of stress due to his son's Asperger's syndrome.

Dr. Reel agreed with the Petitioner's pursuing disability. He stated that "both back pain and Parkinson's disease limit his ability to work." A treatment for anxiety was also discussed along with a plan for family counseling. The doctor's diagnoses on that occasion were "low back pain, chronic pain syndrome and anxiety."(Exhibit 14).

32. The Petitioner saw Dr. Hersh again on December 8, 2006. He reported that he continued to have slowness in speech, slowness in movement and low back pain. The doctor determined that he was only slightly improved from the last visit and she added the medication Amantadine to his regimen. She indicated that he was a stage
2.5 on the Hoehn and Yahr scale. (Exhibit 20).

33. The Petitioner continued to work part time and on intermittent days with limitations until December 12, 2006 when he was placed on administrative leave for suspected misconduct. (Testimony and Exhibit 7).

34. On December 18, 2006, Dr. Reel reported "To Whom It May Concern" that the Petitioner had chronic low back pain as a result of an injury sustained at work in June 2005. The doctor noted that he continued to have significant limitations due to his back pain despite physical therapy.
Dr. Reel concluded, "he remains unable to perform essential functions of his job and, in my opinion, is permanently disabled effective December 5, 2006." (Exhibit 14).

35. The Petitioner filed his Employee's Accident Report relative to the December 4 incident with the Town of Norton on December 26, 2006. He was denied Workers' Compensation benefits for the December 4, 2006 incident. (Testimony and Exhibit 8).

36. In late January 2007, the Petitioner saw Dr. Reel and complained of tingling in the right cheek and substernal chest pain. It was determined that he suffered from a lacunar infarct (stroke). The medications aspirin and Coumadin were added to his regimen. (Exhibit 14).

37. After suffering the stroke, the Petitioner began having chest pains and underwent a stress evaluation. It was determined that he had suffered a myocardial infarction. He underwent an angiography and had a stent implanted. The medications Plavix and nitroglycerin were added to his regimen. (Id.).
38. In early February 2007, the Petitioner's workers' compensation claim was
denied. On February 5, 2007, Dr. Reel wrote "To Whom It May Concern" that he understood that the Petitioner was denied based on an injury that allegedly occurred on November 12, 2006. The doctor indicated that the form he signed contained two different dates: November 12, 2006 and December 4, 2006. The doctor noted that the Petitioner had been seen repeatedly for back pain since June 2005, and, that he "reinjured his back on December 4, 2006 when he slipped getting out of his chair at work." Dr. Reel indicated that his patient was disabled "due to his inability to perform all of the functions of his job." (Id.).

39. n June 30, 2007, the Petitioner's employment officially terminated with the Town of Norton. The parties executed a Settlement Agreement. (Exhibit 9).

40. The Petitioner submitted his application for Section 7 accidental
disability retirement benefits to the BCRB on July 31, 2007. He claimed that because of back injuries he had sustained on June 20, 2005 and December 4, 2006, he was totally and permanently disabled form performing the essential duties of Building Inspector. On page 02 of his application, the Petitioner indicated that the activities that he was required to perform in his current position were climbing, bending, lifting, pushing, walking, sitting, using a computer and using tools. The Petitioner also applied for ordinary disability benefits at that time, however, he had not accrued ten years of service and he was not eligible for Section 6 benefits. (Exhibit 5).

41. On April 22, 2008, the BCRB denied the Petitioner's application for accidental disability retirement benefits prior to the convening of a medical panel.


DECISION


After a careful review of all of the testimony and documents in this case, I have concluded that the Petitioner is not entitled to prevail in this appeal. He has not met the threshold requirement that he demonstrate that his accident occurred "while in the performance of his duties". See Boston Retirement Board v. CRAB, 340 Mass. 109 (1959)and Lisbon v. CRAB, 41 Mass. App. Ct. 246 (1996).
The June 2005 injury which the Petitioner has asserted is the main cause of his low back symptoms, was not incurred in the performance of his duties. While he may arguably have been responsible for retrieving the office mail in his secretary's absence, he certainly had no obligation to return to his office by climbing over the counter in the outer reception area in order to regain entry from the front entrance. No employer or job description imposes this sort of risk taking behavior on its employees. In fact, conduct which places employees at risk for injury is discouraged in the workplace. Cf. Damiano v. CRAB, 72 Mass. App. Ct. 259 (2008).
The record reflects that the Petitioner had some ongoing health issues in June 2005. He had experienced intermittent back pain from and after the incident in gymnastics during his youth. Further, he was experiencing the beginning of Parkinson's disease and had already complained about the onset of tremors. If anything, he had an obligation NOT to perform and activity that would place himself at risk. Scaling the counter cannot be deemed as an activity consistent with the expectations of his job and the retirement system is not obligated to compensate the Petitioner for such an injury. .
Damiano, supra.

The Petitioner claims that he reinjured his when he got up out of a chair on December 4, 2006. This is the version of events that appeared in the earliest medical reports and the December 26, 2006 accident report. Accordingly, this is the version of events that I have accepted as fact. The Petitioner's hearing testimony concerning the chair having been faulty is determined not to be credible, along with other aspects of his testimony. This conclusion is rendered after observing his demeanor and manner of answering questions as well as listening to his responses to other questions during the course of the hearing.

The December 4, 2006 incident, as originally reported, resulted from a common movement and is not compensable under retirement law. CRAB has held that common movements, without more, cannot serve as a basis for an award of accidental disability retirement benefits. See Rammel v. Bristol County Retirement Board, CR-92-100 (DALA, CRAB 1993) and Budzinski v. Worcester Retirement Board, CR-96-005 (DALA 1996; CRAB 1997). Cf. Adams v. CRAB, 414 Mass. 360 (1993).

In the Rammel case, supra, DALA found, and CRAB affirmed, that there was no

compensable injury for a police officer's act of exiting a cruiser which caused a knee

injury. In the Budzinski case, supra, DALA found, and CRAB affirmed, that there was

no compensable injury for a police officer's act of entering a cruiser and sustaining a
knee injury. Both the Rammel and Budzinski cases, supra, are on-point with this Petitioner's situation. His December 4, 2006 injury in the act of getting up from a chair
cannot serve as the basis for an accidental disability retirement or as the aggravation of a pre-existing condition.

Lastly, there is merit to the BCRB's contention that the reasonable accommodation that was provided to the Petitioner from the Town of Norton, the light duty work with no requirement of outdoor inspections, lifting, or climbing, precludes him from receiving accidental disability retirement. In Samuel Foresta, Jr. v. CRAB, SJC-10288 (April 24, 2009) the SJC affirmed CRAB and held that an employer is not precluded from reassigning an employee to a different or less physically demanding position so as to accommodate that employee's physical limitations unless such action is otherwise precluded by an employment contract. In the Petitioner's case, there is no Collective Bargaining Agreement or other employment contract which precluded the employer from affording the Petitioner the reasonable accommodations of restrictions on lifting, repetitive stooping and bending and outdoor inspections, notwithstanding the Petitioner's protestations that these accommodations were inadequate. These protestations were not weighed heavily in light of the credibility findings previously referred to herein. It should also be noted here, that at the time he submitted his application for Section 7 benefits, the Petitioner listed all of the duties of his position prior to the accommodations. In this, his application was inaccurate. On December 5, 2006, Dr. Reed was reporting that outdoor inspections were part of the Petitioner's job. This, too, was incorrect.

In conclusion, the Petitioner has failed to establish a prima facie case that he is entitled to accidental disability retirement benefits. The injury he sustained on June 20, 2005 was not incurred in the performance of his duties; the injury sustained on December 4, 2006 was a common movement that cannot form the basis of a Section 7 retirement; and, the Petitioner was able to perform light duty work after the December 4, 2006 injury up to December 12, 2006 when he was placed on administrative leave. The decision of the BCRB denying Joseph Clancy's Section 7 application prior to the convening of a medical panel is hereby affirmed.

So ordered.


Division of Administrative Law Appeals,
/s/
Judithann Burke
Administrative Magistrate

DATED: July 24, 2009

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