THE COMMONWEALTH OF MASSACHUSETTS


Suffolk, ss. Division of Administrative Law Appeals

Josephine DiChiara,

Petitioner
v.

Docket No. CR-07-622


Essex Regional Retirement Board,

Respondent

Appearance for Petitioner:

Michael A. Torrisi, Esquire

Torrisi and Torrisi, PC
555 Turnpike Street, Suite 44
North Andover, MA 01845

Appearance for Respondent:

William J. Lundregan, Esquire

71 Washington Street
Second Floor
Salem, MA 01970

Administrative Magistrate:

Judithann Burke

SUMMARY OF DECISION

The Petitioner, who was injured in a fall while walking across the school parking lot into the school building on her way to work in the morning, was not injured "in the performance of her duties."

DECISION


Pursuant to G.L. c. 32 s. 16(4), the Petitioner, Josephine DiChiara, is appealing from the June 8, 2007 decision of the Respondent, Essex Regional Retirement Board (ERRB), denying her application for Section 7 accidental disability retirement benefits. The appeal was timely filed. (Exhibits 15 and 16). A hearing was held on April 30, 2009 at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, Boston, MA.

At the hearing, sixteen (16) exhibits were marked. The Petitioner testified in her own behalf. Both parties stated their arguments for the record. One (1) tape was made of the proceedings.

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, Josephine DiChiara, d.o.b. 11/08/1954, was employed as a Special Education Aide at the Proctor School in Topsfield, MA. She started in this position on September 18, 2001. (Exhibit 2).

2. The Petitioner worked with students in Grades 4-6, ages 10-12. Her duties included: serving as the instructional and/or behavior support for special education students; assisting teachers in implementing students' Individualized Education Programs (IEPs); assisting the special education students. She was also responsible for assisting with the data collection and performance notes regarding student performance, assisting the students in completing organizational tasks and in performing daily/regular classroom and/ADL activities. (Exhibit 10).

3. The last area of responsibility delineated in the job description for the Special Education Instructional Assistant reads:
9. Performs other responsibilities as requested by the building
principal and/or special education teacher. (Id.).


4. The Petitioner procured coffee products for the teachers in the school from a local coffee club. The staff all chipped in from their personal funds in order to purchase these products, and, the Petitioner retrieved them and delivered them to the school several times during the school year. (Testimony).

5. The Petitioner toted school supplies such as notepads and pencils to and from school every day. (Testimony).

6. The Petitioner retrieved coffee supplies for her coworkers and herself after school on December 11, 2005. She left them in her car overnight. (Id.).

7. On December 12, 2005, the Petitioner reported to work at approximately
8:30 AM. She parked in the school parking lot and exited her car carrying coffee supplies and the tote bag of school supplies that she had taken home. It was lightly snowing and she slipped on a snow covered patch of ice and fell over backwards, landing in a semi-seated position. She got up, went into the school and reported the incident to the school nurse. She had some pain in her tailbone and low back. The nurse gave her some Advil. The Petitioner then resumed her duties and worked for the next several weeks. (Id. and Exhibits 1, 5 and 9).
8. The Petitioner first sought medical treatment on January 31, 2006 when she saw her primary care doctor, Daniel Shea, M.D. She complained to the doctor of pain in her lower back and coccyx. She indicated that she had experienced great discomfort washing and wiping down the students' desks at school. The doctor prescribed Percocet and ordered x-rays. (Exhibit 6).

9. The Petitioner stopped working on February 7, 2006 when she experienced increased discomfort after wiping desks down and passing out books. She received Workers' Compensation benefits through July 11, 2006. (Testimony and Exhibits 3 and 9).

10. An MRI on February 9, 2006 revealed a disc protrusion at L1-2 on the left side and a moderate sized disc protrusion at L5-S1 in the left paramedian location that indentured the dura. There was also a questionable fracture of the sacrum at S4. Dr. Shea referred the Petitioner to Neurosurgeon Robert Sporaccio, M.D. from the Lahey Clinic. (Exhibits 5 and 9).

11. A March 21, 2006 CT scan of the sacrum revealed a healed chronic fracture of the sacrum and no definite acute fractures. There was mild angulation of the distal sacrum and coccyx which was thought to be either a normal variation or possible prior trauma. Dr. Sporaccio opined that the fracture was of recent origin. (Exhibit 8).

12. The Petitioner continued with physical therapy and her pain medications through May 2006. At that time, she reported that her symptoms had not improved and a pain clinic was recommended. The Petitioner declined to do this because she feared any type of injection therapy. (Exhibits 3 and 6).

13. In his Attending Physician's Report pertaining to Workers' Compensation, Dr. Shea indicated that the Petitioner had fallen "while walking into school on December 12, 2005 while carrying supplies for coworkers." (Exhibit 9).

14. The Petitioner filed for accidental disability retirement benefits on August 16, 2006. In her application, she indicated that the medical reason for her application was, "on 12/12/05 while performing the duties of my job, I slipped and fell and sustained a sacrum fracture and lumbar disc herniations at L1-2 and L5-S1. (Exhibit 2).

15. The Petitioner underwent three single physician medical panel examinations. On March 20, 2007, Dr. Alice Hunter answered "no' to Question 1 on the certificate. On March 21, 2007, Dr. John Groves answered the certificate, "yes, yes, yes." On March 26, 2007, Dr. Ronald Rosenthal answered the certificate, "yes, no, yes." (Exhibits 12-14).

15. The ERRB denied the Petitioner's Section 7 application on June 8, 2007. (Exhibit 15).

16. The Petitioner filed a timely appeal. (Exhibit 16).

CONCLUSION

The Petitioner is not entitled to prevail in this appeal as a matter of law. Boston Retirement Board v. CRAB, 340 Mass. 109 (1959). In this case, the Petitioner sustained the injury for which she claims she is disabled while she was walking across the school parking lot at the beginning of the school day. She was on her way to work from home. She had taken it upon herself to take school supplies home and to procure and deliver coffee supplies to her coworkers, although she was not required to do either activity as part of her job duties notwithstanding the last line in the written job description. There is no evidence that the transporting back and forth of work supplies and the personal coffee supplies of the staff were mandated by the School Principal. There would not have been any professional consequences had she not taken the school supplies home with her in the first place and/or had she not retrieved and delivered the coffee supplies on that date. Moreover, the Petitioner was not in the act of actually performing her duties at that time of the fall; rather, she was simply carrying supplies in a tote bag while she walked into the school building from her car at the start of the work day.

The Respondent is correct in its contention that, in carrying school supplies and coffee products into the school building from home, the Petitioner was not "going from one place where she had an employment obligation to another such place; nor was she injured while performing an employment duty while traveling." Thus, her case does not fit into one of the narrow exceptions for travel-related injuries identified by the Supreme Judicial Court in Richard v. Worcester Retirement Board, 431 Mass. 163, 165 (2000), citing Namvar v. CRAB, 422 Mass. 1004, 1005 (1996).

Accordingly, the decision of the EERB denying the Petitioner's application for Section 7 accidental disability retirement benefits is hereby affirmed.
So ordered.


Division of Administrative Law Appeals,


BY: /s/


Judithann Burke
Administrative Magistrate

DATED: July 24, 2009