COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS


Appeal of:

Angela Dunn,

Petitioner

v. CR-07-585

Plymouth Retirement System,

Respondent

Appearance for Petitioner:

Karen S. Hambleton, Esq.,

470 Washington Street - Suite 400
Braintree, MA 02184

Appearance for Respondent:

Lane Rideout, Esq.

Law Offices of Michael Sacco
285 College Highway
P.O. Box 479
Southampton, MA 01073

Administrative Magistrate:

Joan Freiman Fink, Esq.

SUMMARY OF DECISION

The Petitioner is not entitled to accidental disability retirement as she failed to meet her burden of proof to demonstrate that her disabling orthopedic condition is the proximate result of a personal injury sustained or hazard undergone as a result of, and while in the performance of her duties as required by G.L. c. 32, § 7.

DECISION

Pursuant to G.L. c. 32 §16(4), the Petitioner, Angela Dunn, is appealing the July 26, 2007 decision of the Respondent, Plymouth Retirement System, 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 December 18, 2008 at the offices of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA Various documents were entered into evidence at the hearing (Exhibits 1 - 21). The Parties' Joint Pre-Hearing Memorandum was marked as "A" for identification. The Petitioner, Angela Dunn, 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, Angela Dunn, d.o.b. 4/28/54, commenced employment as a cook with the Plymouth School Department on November 29, 1982. She was assigned to work at Plymouth North High School. (Testimony of the Petitioner.)

2. Her duties as a cook entailed serving the students and cleaning the cafeteria each day. (Testimony of the Petitioner.)

3. In or about 1993, the petitioner was assigned to work as a cook at Plymouth South High School. Part of her duties at that time included assisting others in lifting heavy boxes containing food items. (Testimony of the Petitioner.)

4. In 1997, she was made the head cook at Plymouth South High School. In that capacity, she was responsible for cooking lunch for over 1200 students every school day. She was required to lift boxes containing frozen hamburgers, turkeys, and other meats on a daily basis. Another cook assisted her in performing these heavy lifting tasks. (Testimony of the Petitioner.)

5. In 1999, the Petitioner transferred back to Plymouth North High School as the head cook for approximately 700 students. However, at Plymouth North High School, she had no assistants. Consequently, on a daily basis, she lifted food boxes weighing in excess of twenty-five pounds. (Testimony of the Petitioner, Exhibit 8.)

6. In early December of 2005, the Petitioner informed her supervisor that she could no longer lift heavy boxes on a daily basis as she was suffering from low back pain and bilateral hip pain. (Testimony of the Petitioner.)

7. In February of 2006, the Petitioner underwent an MRI that revealed a broad-based disc herniation L4-5. (Exhibits 10, 11 & 16.)

8. The Petitioner did not file any Notice of Injury Reports during her tenure with the Plymouth School Department. (Testimony of the Petitioner.)

9. On December 6, 2006, the Petitioner filed an application for both accidental and ordinary disability retirement claiming that she was permanently disabled from performing the essential duties of her position as a cook. On that form, the Petitioner described her incident(s) or hazard as "heavy lifting and carrying of food items, pans, pots, trays, cases of produce and dairy products; stocking and moving items on shelves." (Exhibit 6.)

10. Dr. David Grace submitted a Physician's Statement in Support of the Application in which he noted that by MRI report, Ms. Dunn suffered from chronic disc herniation, L4-5, and spinal stenosis. Dr. Grace opined that Ms. Dunn's occupation "has contributed to her condition and her symptoms are exacerbated by her work." (Exhibit 7.)

11. The Petitioner last worked for the Plymouth School Department on April 13, 2006. (Stipulation of the Parties.)

12. On March 20, 2007, the Plymouth Retirement Board held a hearing at which time it determined that the Petitioner likely qualified for ordinary disability retirement. The Plymouth Retirement Board then requested that PERAC convene a Regional Medical Panel to evaluate Ms. Dunn for eligibility for either ordinary or accidental disability retirement. (Stipulation of the Parties.)

13. On May 24, 2007, the Petitioner was examined by Dr. Louis Fuchs, a specialist in orthopedic surgery. Dr. Fuchs diagnosed the Petitioner as suffering from disc herniation L4-5 and chronic lumbosacral myofascitis and then responded to the first two certificate questions concerning disability and permanence in the affirmative. With respect to the third certificate question concerning causation, Dr. Fuchs merely responded that Ms. Dunn's disability is such as might be the natural and proximate result of the personal injury sustained or hazard undergone on account of which retirement is claimed without any further explanation or comment. (Exhibit 11.)

14. On May 11, 2007, the Petitioner was examined by Dr. Richard Greenberg, a specialist in orthopedic surgery. Dr. Greenberg diagnosed Ms. Dunn as suffering from degenerative disc disease and herniated disc L4-5. He likewise responded to all three certificate questions in the affirmative. With respect to the issue of causation, Dr. Greenberg opined that "this [disability] is an aggravation of a pre-existing condition. She had no symptoms prior to this injury, although undoubtedly she had some progressive degenerative change." (Exhibit 12.)

15. On May 31, 2007, the Petitioner was examined by Dr. John Groves, a specialist in orthopedic surgery. Dr. Groves diagnosed the Petitioner as suffering from lumbar disc herniation, facet joint arthropathy, and spinal stenosis due to epidural lipomatosis. He also responded to all three certificate questions in the affirmative. (Exhibit 13.)

16. Regarding the issue of causation, Dr. Groves stated that "in my opinion, diagnoses one and two (lumbar disc herniation and facet joint arthropathy) have been the result of the type of work she was doing although there was no history obtained of any specific injury. In my opinion, the member did have a predisposition to degenerative changes in the lumbar spine, but the occupation that she was doing for many years hastened and aggravated the underlying condition in the lumbar spine …. " (Exhibit 13.)

17. In December of 2007, the Petitioner received a lump sum settlement of a workers' compensation claim. (Exhibit 10.)

18. By letter dated July 26, 2007, the Plymouth Retirement Board notified the Petitioner that it had awarded her ordinary disability retirement but had denied her application for accidental disability retirement as her permanent disability was neither the result of a personal injury sustained or hazard undergone within the meaning of G.L. c. 32 § 7. (Exhibit 1).

19. By letter dated July 30, 2007, the Petitioner filed an appeal of this decision with the Contributory Retirement Appeal Board. (Exhibit 4.)

CONCLUSION

In order to qualify for an award of accidental disability retirement benefits, the Petitioner must demonstrate that she is permanently unable to perform the essential duties of her position as the proximate result of a personal injury sustained while in the performance of her duties in accordance with the provisions of G.L. c. 32 §7.

In the current case, the Respondent denied the Petitioner's claim for accidental disability retirement benefits based on its contention that although Ms. Dunn's leg and back pain have permanently disabled her from performing the duties essential to her position, this disability did not result from a personal injury sustained or hazard undergone at the workplace, not did her position expose her to any identifiable condition not common and necessary to all or a great many occupations.

After reviewing the testimony and evidence presented in this appeal, I conclude that Ms. Dunn has not met her burden of demonstrating that her disabling orthopedic condition is the proximate result of a personal injury sustained or hazard undergone as a result of, and while in the performance of her duties as required by G.L. c. 32, § 7.

In order to meet her burden, a Petitioner must prove one of two hypotheses: that her disability was caused by a single or series of work-related events, or that her employment exposed her to "an 'identifiable condition' that is not common and necessary to all or a great many occupations" that resulted in disability through gradual deterioration. Blanchette v. Contributory Retirement Appeal Board, 481 N.E. 2d 216 (1985).

Ms. Dunn does not prevail under either hypothesis. The Petitioner does not cite any work-related events that led to her leg and back pain. No Notice of Injury Reports were filed by Ms. Dunn concerning any specific occurrences at work as a result of which she suffered from leg or back pain. Moreover, at the hearing in this matter, when questioned as to whether there were any identifiable incidents at work during the course of which she suffered from leg and back pain, the Petitioner was not able to recall any specific identifiable instances. She testified rather that that her continual lifting of food cartons and boxes led to her problems with disc herniation and bilateral hip and leg pain. Although the Petitioner filed her application for accidental disability retirement benefits in December of 2006, she did not stop working until April of 2007, some four months later.

The claim made by Ms. Dunn is similar to the kind of claim made in the case of Donna Adams v. Teachers' Retirement Bd., 414 Mass. 360 (1993). In that case, Ms. Adams, a third grade teacher, engaged in various physical activities including breaking up arguments between students and bending to pick up classroom items. Eventually, she was unable to perform this kind of physical activity in connection with her teaching due to chronic back pain. The Court noted that the particular uniqueness of a job is insufficient to support a compensable injury, since all jobs carry their own "special characteristics." The Court cited Zerofski's Case, 385 Mass. 590, 595 (1982), for the proposition that the work environment has to involve "an identifiable condition not common and necessary to all or a great many occupations." Id., at 365. The Court noted that in determining whether there is such an identifiable condition or whether the disability results from the effects of wear and tear causing gradual deterioration, it is necessary to evaluate the "frequency and intensity of activity compared to other occupations." Applying such an analysis, the Court found that Ms. Adams had engaged in "common movements done frequently by many humans both in and out of work." She was then denied accidental disability benefits. Id., at 366.
In Carol McCarthy v. State Board of Retirement, CR-01-96 (DALA, January 18, 2002) (CRAB, May 16, 2002), the Petitioner, a payment processor at UMass Medical Center, claimed that her duties of entering information into a computer and removing staples for several hours a day caused her to develop carpal tunnel syndrome, a disabling condition. Ms. McCarthy was determined not to have met the requirements for the awarding of an accidental disability retirement pursuant to G.L. c. 32, § 7 because she failed to present evidence of a work activity not common and necessary to all or a great many occupations. In McCarthy, it was noted that "the regular use of one's hands is also a common and necessary function of daily life outside of the workplace ... in short, the record reflects that this claimed disability involved 'common movements done frequently
by many humans.'"

In this case, the Petitioner failed to demonstrate that her position as a cook with the Plymouth School Department was more difficult or physically demanding than a great many other positions in the field of food preparation and service. All cooks at one time or another are called upon to lift food items including hamburger meat and turkey breasts. An applicant for section 7 benefits cannot meet her burden of proof merely by stating her work was physically demanding. After considering all the evidence, I conclude that Ms. Dunn's work requirement to lift food cartons was not "an 'identifiable condition' not common and necessary to all or a great many occupations" within the meaning of Blanchette, supra.
Notwithstanding the above, the Petitioner asserted that she has met her burden of proof with respect to his eligibility for accidental disability retirement benefits because the Medical Panel responded in the affirmative to all three certificate questions. The Medical Panel's affirmative response to the question of causality is only some evidence to be considered in rendering a decision. It is necessary to look at the explanation offered by the Panel to determine whether there was an actual causal connection. Although the members of the Medical Panel all gave positive responses to the third question relating to causation, none of the members offered any explanation or rationale for their affirmative responses. In discussing the issue of causation, two members of the Panel merely referenced the fact that Ms. Dunn had degenerative disc disease. The third member of the Panel did not offer any reason why he responded to the certificate question concerning causation in the affirmative. Even if the Panel had opined that there was an actual causal connection, the Plymouth Retirement Board, the Contributory Retirement Appeal Board, and the DALA Administrative Magistrate are not bound by an affirmative response by the Medical Panel. Wakefield v. CRAB, 352 Mass. 499 (1967); Retirement Board of Brookline v. CRAB, 33 Mass. App. Ct. 478 (1992).

In conclusion, the Petitioner has failed to demonstrate that her disability is the proximate result of a personal injury sustained or hazard undergone as a result of, and while in the performance of her duties as required by G.L. c. 32, § 7 for eligibility to receive accidental disability retirement benefits.

The decision of the Plymouth Retirement Board denying her application for accidental disability retirement benefits is hereby affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

/s/ Joan Freiman Fink
Administrative Magistrate

Dated: March 19, 2009