COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Robert Tatro,

Petitioner

v. Docket No. CR-09-67
DATED: 1/8/10


State Board of Retirement,

Respondent


Appearance for Petitioner:

Jay E. Macklow, Esq.

Landman Akashian, LLP
255 Park Avenue, Suite 1102
Worcester, MA 01609

Appearance for Respondent:

Erin C. Nally, Esq.

State Board of Retirement
One Ashburton Place, 12th floor
Boston, MA 02108

Administrative Magistrate:

Maria A. Imparato, Esq.

CASE SUMMARY

The case is remanded to the medical panel to reconsider the issue of disability in light of the risk of re-injury to the Petitioner, using the standard enunciated by CRAB in the case of Filipek v. Bristol Cty. Retirement Board, CR-03-672. If the Petitioner wants to pursue a psychiatric claim for benefits, he must file a new application.

DECISION

Robert Tatro filed a timely appeal of the January 30, 2009 decision of the State Board of Retirement (Board) to deny his request for accidental disability retirement benefits. (Exs. 1, 2.)

I held a hearing on November 5, 2009 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA.

I admitted documents into evidence. (Exs. 1 - 15.) I marked the Petitioner's pre-hearing memorandum "A" for identification; the Respondent's pre-hearing memorandum "B" for identification; the Petitioner's Motion for a New Regional Panel "C" for identification; the Respondent's Opposition to the Petitioner's Motion "D" for identification; and a letter from Susan Stevens, PMHNP-BC dated October 22, 2009 "E" for identification. The Petitioner testified. There is one tape cassette of the hearing.

FINDINGS OF FACT

1. Robert Tatro, d.o.b. 10/23/1967, worked as a Correction Officer, and then as an Operations Captain, at the Worcester County Sheriff's Office Jail and House of Correction from March 19, 1990 to November 14, 2006. (Ex. 3; Testimony.)

2. The job duties of a Correction Officer include maintaining custodial care and control of inmates, including violent and dangerous inmates; using lawful physical force to restrain and apprehend inmates to suppress riots, violence, escape and disturbances; functioning in dangerous situations where personal safety may be in jeopardy, conditions are stressful, and the officer is subject to verbal and physical abuse; transporting violent and dangerous inmates; and patrolling correctional facilities. (Ex. 11.)

3. The job duties of an Operations Captain are "to perform and be responsible for all of the essential functions of a correctional officer with the rank of officer," in addition to commanding officers of lesser rank engaged in the care and custody of inmates and to supervise their activities. (Ex. 8.)

4. On December 14, 2002, while Mr. Tatro was assisting in processing inmates to go to the J block, an inmate punched Mr. Tatro on the left side of his face. (Exs. 3; 6.)

5. Mr. Tatro was taken by ambulance to UMass Memorial Medical Center Emergency Room where x-rays revealed a depressed left zygomatic-maxillary fracture and fracture through the tip of the left coronoid process. (Ex. 14.)

6. On December 18, 2002, Mr. Tatro underwent "open reduction, internal fixation left zygomatic complex fracture and left orbital floor fracture with intermaxillary fixation for mandible fracture" performed by Elliot Lach, M.D. (Ex. 14, 12/18/02, Report of Operation.)

7. At a follow-up visit with Dr. Lach on January 16, 2004, Dr. Lach noted Mr. Tatro's symptoms of persistent aching and a bolt of pain related to activity. Mr. Tatro also had retained hardware from his previous surgery that Dr. Lach felt was ready for removal. Dr. Lach opined that Mr. Tatro could not return to work because it would be "physically demanding and putting him at undue risk of reinjury or danger in terms of his airway and facial bone integrity." (Ex. 14, 1/16/04.)

8. On September 22, 2004, Christian A. Sampson, M.D. performed an impartial medical examination for worker's compensation purposes. Dr. Sampson opined that Mr. Tatro "has no physical or functional limitation from a work capacity. However, due to the psychological aspects of the nature of the accident on 12/14/02, he should not be placed in a position similar to that which he was in at the time of the accident." Dr. Sampson opined that Mr. Tatro was not at a medical end-point and that the inter-maxillary fixation screws needed to be removed. (Ex. 14, 10/10/04.)

9. On January 5, 2005, Mr. Tatro was evaluated by Stephen A. Pap, M.D. Dr. Pap opined that he required facial films to fully assess the quality of Mr. Tatro's function. (Ex. 14, 1/5/05.)

10. By letter of February 2, 2005, Dr. Pap opined, "[Mr. Tatro] is cleared to return to work full duty with no limitations." (Ex. 14, 2/2/05.)

11. Mr. Tatro returned to work on February 22, 2005 in the position of Operations Captain. He found the work stressful because inmates were threatening him. The inmate who punched him had been prosecuted, but since he was a gang member, his friends were still in the institution. Mr. Tatro was also experiencing facial swelling because he still had hardware in his face from his surgery. He stopped working on November 14, 2006 because of swelling in his face and stress. (Testimony; Ex. 5.)

12. In his office note of February 28, 2007, Dr. Pap opined that Mr. Tatro's persistent discomfort was probably caused by plates that had been inserted and would justify removal of the plates. Dr. Pap surgically removed the hardware on December 12, 2007. (Ex. 14, 2/28/07; 12/12/07.)

13. On June 20, 2007, Michael J. Hunter, D.M.D., performed an independent oral maxillofacial surgery evaluation of Mr. Tatro for worker's compensation purposes. Dr. Hunter opined that Mr. Tatro's "fractures appear to have healed quite well with no evidence of any facial asymmetry or swelling. There is a partial impairment in regards to sensation of the left maxillary and zygomatic region. Mr. Tatro has approximately a 5-10% decrease in facial sensation in this region. This does appear to be at a medical endpoint since the injury was approximately four-and-a-half years ago. No further improvement in return of facial sensation would be anticipated. However, there is no apparent loss of function, as Mr. Tatro claims to be able to eat a normal diet and his mandible has achieved full range of motion. In addition, there do not appear to be any ocular dysfunctions present. It does appear that Mr. Tatro is able to work and in fact, he was working for approximately a year and a half after recovering from his injuries." (Ex. 15.)

14. By letter of February 12, 2008, Dr. Pap opined that Mr. Tatro's "ongoing symptoms and persistent discomfort in the left cheek leave him fully disabled and unable to work in a setting where he would be in contact with inmates, and potentially be exposed to physical trauma in the face." (Ex. 14, 2/12/08.)

15. Mr. Tatro filed an application for accidental disability retirement benefits on June 26, 2008 citing "multiple facial fractures resulting from assault while at work" on December 14, 2002. (Ex. 3.)

16. Dr. Pap filed a statement in support of the application answering all certificate questions in the affirmative. Dr. Pap opined that Mr. Tatro has residual pain in his face that "prevents him from performing the essential duties of his job as a correctional officer. His disability is permanent and is the direct result of the altercation that occurred while Mr. Tatro was performing his job duties as a prison guard, on December 14, 2002." (Ex. 4.)

17. Dr. Pap also noted that Mr. Tatro "has remained with significant hypersensitivity in the areas of the face, which underwent fracture repairs. Should he receive any additional trauma to that areas, he would likely develop swelling and discomfort. In addition, he still has retained hardware in his face that causes him to experience episodes of migraines and headaches." (Ex. 4.)

18. A regional medical panel composed of Steven Sewall, M.D., John McConville, M.D., and William Mullally, M.D. evaluated Mr. Tatro on October 18, 2008. Drs. Sewalll and McConville are orthopedic surgeons. Dr. Mullally is a neurologist. (Ex. 7.)

19. The panel reviewed medical records and a job description of a Captain Correction Officer, took a history and performed a physical examination. The panel also reviewed a surveillance video of 12/14/06 that was not submitted at hearing. The panel diagnosed post open reduction and internal fixation of zygomaxillary fractures and orbit fractures of the left side of Mr. Tatro's face
(Exs. 7, 8, 13.)

20. The panel noted that Mr. Tatro reported that he gets a "funny feeling" in his face on the left side when he is running, and he notes an asymmetry in his face. "Most important, however, is the fact that he is very afraid of returning to his regular work because he states the inmates know that he had had a previous problem with his left face, and they threaten him with hitting him again in this area, and he is quite fearful of getting reinjured." (Ex. 7.)

21. Physical examination revealed a somewhat drier eye on the left, although Mr. Tatro blinked well. There was some asymmetry of Mr. Tatro's face on the left side with numbness over the left side of his cheek and jaw. (Ex. 7.)

22. The panel concluded, "From an orthopedic and a neurological viewpoint, it is the panel's opinion that this member is not unable to function and do all of his duties as a corrections officer. He has no functional impairment. … The surveillance video dated 12/14/06 did not contain any information that would affect our opinion in any way. … Therefore, based on the examination today, it is our opinion that the member is not physically incapable of performing the essential duties of his job as described in the current job description." (Ex. 7.)

23. By letter of November 7, 2008, Mr. Tatro's counsel requested that the Board supply the medical panel with a job description of Correction Officer, in view of the fact that the job description of Captain reviewed by the medical panel indicates that a Captain is to perform and be responsible for all of the essential functions of a Correction Officer "with the rank of Officer." (Ex. 9.)

24. The job description of "Correctional Officer/Deputy Sheriff" was forwarded to the medical panel. On December 11, 2008, the panel submitted an Addendum stating that review of the new job description "does not change our opinion as to whether he is able to perform all the essential functions of his occupation." (Exs. 10, 11, 12.)

25. By letter of October 22, 2009, Susan Stevens, PMHNP-BC of Psychiatry and Counseling Associates indicated that Mr. Tatro was under her care for diagnoses of Post Traumatic Stress Disorder and Major Depressive Disorder which disable him and are related to the physical attack of December 14, 2002. She opined that his symptoms are chronic and interfere with the quality of his life, his relationships and his sleep. She opined that he suffers daily anxiety, has frequent nightmares and startles easily. ("E" for identification.)

CONCLUSION AND ORDER

This case is remanded to the medical panel because the panel employed an erroneous standard when it answered in the negative with respect to the existence of a disability. The panel failed to consider the risk of re-injury to Mr. Tatro if he were to return to work. The Contributory Retirement Appeal Board (CRAB) is therefore not bound by the panel's negative response.

The Petitioner's Motion for remand to a new medical panel to consider a psychiatric claim is denied. The Petitioner must file a new application claiming a psychiatric injury.

Risk of re-injury

Disability is the inability to perform the essential duties of one's job. Implicit in the definition of disability is the notion that a member is unable to perform the essential duties of his job if doing so would subject him to significant risk of re-injury or death. (See, Dimitropoulos's Case, 343 Mass. 341, 345 (1961), where the Supreme Judicial Court held that a finding of partial incapacity is warranted where an employee, under competent medical advice, refrains from engaging in his former work because of a "considerable risk of reinjury.")

CRAB has held that "the proper standard to be applied in evaluating the risk of re-injury or harm to third parties for determining disability under Chapter 32 is whether the member is able to perform the essential duties of his or her position without a reasonable probability of substantial harm to himself or third parties. In making this determination, the fact finder, including the medical panel, shall take into account (a) the likelihood of re-injury or harm to the member or third parties posed by the member's return to work; and (b) the seriousness of the consequences to the member or third parties of the injury to be risked. It is not enough that there is some risk of some harm. There must be a reasonable probability of substantial harm." Joshua Filipek v. Bristol County Retirement Board, CR-03-672 (CRAB 2004).

The medical panel acknowledged in its narrative that "most important" was the fact that the Petitioner was afraid to return to his job because of threats by inmates to hit him again on the left side of his face. The medical record reviewed by the panel includes the opinion of Dr. Lach that a return to work would put the Petitioner at "undue risk of reinjury or danger in terms of his airway and facial bone integrity," and the opinion of Dr. Pap that the Petitioner is "unable to work in a setting where he would be in contact with inmates, and potentially be exposed to physical trauma to the face."

The medical panel should therefore have considered the risk of re-injury to the Petitioner before deciding whether the Petitioner is disabled from his job. The panel's failure to do so is evidence of the application of an erroneous standard and CRAB is not bound by the panel's negative response. Malden Retirement Board v. CRAB, 1 Mass. App. Ct. 420 (1973). The case is therefore remanded to the panel to reconsider the issue of disability in light of the risk of re-injury, employing the proper standard enunciated by CRAB, above.

Psychiatric claim

The Petitioner's application for accidental disability retirement benefits is based entirely on the injury to his face. The statement of applicant's physician that supports the application attests only to the injury to the Petitioner's face. The Petitioner was therefore evaluated by an orthopedic panel. An orthopedic panel is not competent to evaluate a psychiatric claim. (G.L. c. 32 s. 6(3)(a))
If the Petitioner wishes to pursue a psychiatric claim, he may file a new application making such a claim, supported by the statement of a medical doctor. (840 CMR 10.06 1(b)) The Petitioner must be prepared to demonstrate that he was psychiatrically disabled on his last day of work. Vest v. CRAB, 41 Mass. App. Ct. 191 (1996).

SO ORDERED.
DIVISION OF ADMINISTRATIVE LAW APPEALS

____________________________________________
Maria A. Imparato
Administrative Magistrate

DATED: 1/8/10