COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS


Appeal of:

Anayancy Ramos,

Petitioner

v. CR-07-735

State Board of Retirement,

Respondent

Appearance for Petitioner:

Anayancy Ramos, pro se

Soldiers Home
91 Crest Avenue
Chelsea, Ma. 02150

Appearance for Respondent:

Melinda Troy, Esq.

State Board of Retirement
One Ashburton Pl. - Rm. 1219
Boston, Ma. 02108

Administrative Magistrate:

Joan Freiman Fink, Esq.

DECISION

Pursuant to G.L. c. 32 §16(4), the Petitioner, Anayancy Ramos, is appealing the September 5, 2007 decision of the Respondent, State Board of Retirement, denying her request 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 February 19, 2008 at the offices of the Division of Administrative Law Appeals, 98 N. Washington Street, Boston, Ma. Various documents were entered into evidence at the hearing (Exhibits 1- 8). The Respondent's Pre-hearing Memorandum containing Stipulations of Fact was marked as "A" for identification. The Petitioner testified in her 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, Anayancy Ramos, d.o.b. 1/20/56, commenced employment as a Facility Worker I in the Dietary Department of the Soldier's Home in Chelsea on January 24, 1988 (testimony of the Petitioner).

2. A few years later, she was promoted to the position of Facility Worker II (testimony of the Petitioner).

3. Her duties as a Facility Worker II included assisting the cook in processing food, serving patients their breakfasts and juices throughout the day, preparing coffee and other beverages for meal service, and assisting in the preparation of patients' trays (testimony of the Petitioner, Exhibit 5).

4. When she commenced employment with the Soldier's Home on January 24, 1988, the Petitioner was in good health (testimony of the Petitioner).

5. In 2002, the Petitioner experienced a pain in her leg while at work. She initially attributed the pain to a pulled muscle in her leg and kept on working. Eventually the acute pain subsided (testimony of the Petitioner).

6. When the pain returned a few years later in both her back and her leg, she went to Dr. Bayoan Martinez-Cruz, her personal physician, who prescribed pain medication and ordered diagnostic testing (testimony of the Petitioner).

7. An MRI of the lumbar spine performed on July 7, 2005 revealed "large sacral tarlov cysts…mild degenerative changes" (Exhibit 8)

8. An MRI of the cervical spine performed on August 20, 2006 revealed "C5-C6 and C6-C7 degenerative disc disease and spondylosis with mild spinal stenosis ….moderate bilateral C6-C7 neural foraminal narrowing…" (Exhibit 8).

9. The pain in the Petitioner's leg and back continued to increase in intensity and in or about November 2006, she stopped working (testimony of the Petitioner).

10. The Petitioner never applied for workers' compensation based on an injury to her back and/or leg (testimony of the Petitioner).

11. The Petitioner did not file any Notices of Injury related to a back and/or leg injury (testimony of the Petitioner).

12. On December 3, 2006, the Petitioner filed an application for accidental/ordinary disability retirement claiming that she was permanently disabled from performing the essential duties of her position as a result of a cyst on her sciatic nerve and mild degenerative changes and that her daily duties exacerbated her pain (Exhibit 3).

13. Dr. Martinez-Cruz submitted a Physician's Statement in Support of the Petitioner's Application in which she responded to all three certificate questions in the affirmative. However, in the addendum sheet attached to her Statement, Dr. Martinez-Cruz noted that she is "unable to certify that any injury happened while at work. However, her condition may have been aggravated by her duties" (Exhibit 4).

14. Mr. Stephen Powers, Food Service Supervisor for the Soldier's Home in Chelsea, completed the Employer's Statement Pertaining to a Member's Application for Disability Retirement. In this Statement, Mr. Powers indicated that there was no specific incident or hazard that occurred while Ms. Ramos was at work that may have led to her condition (Exhibit 5).

15. On June 8, 2007, the Petitioner was examined by a Regional Medical Panel comprised of Dr. Anthony Caprio, chairman, specializing in orthopedic surgery, Dr. Victor Conforti, specializing in orthopedic surgery, and Dr. Avraham Almozlino, specializing in neurology (Exhibit 7).

16. The Panel responded to the first two certificate questions in the affirmative indicating that the Petitioner is permanently disabled from performing the essential duties of the position of Facility Worker II. However, the Panel responded to the third question concerning causation in the negative (Exhibit 7).

17. In its narrative report, the Panel diagnosed the Petitioner as suffering from "progressive degenerative osteoarthritis of the spine, chronic sciatica, and radiculopathy…" (Exhibit 7).

18. With respect to the issue of causation, the Panel responded that it does not believe that her disability is causally connected to her employment, rather, "her problem is one of degenerative process and cyst, resulting in chronic postural mechanical arthritic/arthalgic low back pain with chronic degenerative changes of the spine and chronic sciatica" (Exhibit 7).

19. On September 5, 2007, the State Board of Retirement notified the Petitioner in writing of the denial of her application for accidental disability retirement. At the same time, the Board notified the Petitioner that it had awarded her ordinary disability retirement benefits (Exhibit 1).

20. On September 18, 2007, the Petitioner filed a timely appeal of the denial of her application for accidental disability retirement benefits with the Contributory Retirement Appeal Board (Exhibit 2).

CONCLUSION

In order to receive accidental disability benefits pursuant to G.L. c. 32 §7, an applicant must establish by substantial evidence certificate that he/she is totally and permanently incapacitated from performing all of his/her duties as a result of a personal injury sustained or hazard undergone while in the performance of his/her duties (emphasis supplied). See Retirement Board of Brookline v. CRAB, 33 Mass. App. Ct. 478, 484-485 (1992).

In this case, the Petitioner failed to present any evidence of a personal injury or hazard undergone while in the performance of her duties, a threshold requirement for entitlement to accidental disability retirement benefits as outlined in the statute. The Petitioner's personal physician, Dr. Martinez-Cruz, who filed a Statement in Support of the Application for Accidental Disability, despite having responded in the affirmative to the certificate question concerning causation, stated that she (Dr. Martinez-Cruz) was "unable to certify that any injury happened at work."

In her application for accidental disability retirement benefits in response to the question asking her to describe the incident or hazard undergone, the Petitioner merely stated that "daily duties exacerbate my pain." The Petitioner did not file any Notice of Injury Reports with her employer concerning any injury(ies) received at work nor did she file for workers' compensation benefits based on an injury to her leg and back. Thus, I conclude that the Petitioner failed to cite any personal injuries incurred at work as required by the statute as a threshold requirement for eligibility for accidental disability retirement benefits.

The Medical Panel responded in the negative to the question of causation. 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 (emphasis supplied). 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 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 Medical Panel opined that the Petitioner's injury was consistent with a degenerative arthritic condition and further that there was no history of trauma or injury. Additionally, the Medical Panel specifically addressed the issue of aggravation and concluded that there was "no documentation that the work aggravated any condition." Based on my review of the record in this case, I conclude that the Medical Panel did not apply an erroneous standard when it concluded that the Petitioner's disability was not such as might be the natural and proximate result of the personal injury sustained or hazard undergone on account of which retirement is claimed.

The State Board of Retirement did, however, award the Petitioner ordinary disability retirement as she satisfied the requirements outlined in G.L. c. 32 §6 for the granting of such benefits.

In light of the foregoing, I order that the decision of the State Board of Retirement denying the Petitioner's application for accidental disability retirement benefits be affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Joan Freiman Fink, Esq.
Administrative Magistrate

Dated: 3/21/08


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