THE COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Anthony Pimental,

Petitioner

v. Docket No. CR-06-682

State Board of Retirement,

Respondent

Appearance for Petitioner:

Deborah G. Kohl, Esquire

191 Bedford Street
Fall River, MA 02720

Appearance for Respondent:

Melinda Troy, Esquire

Legal Department
State Board of Retirement
One Ashburton Place, RM 1219
Boston, MA 02108

Administrative Magistrate:

Judithann Burke

DECISION

The Petitioner, Anthony Pimental, is appealing from the October 3, 2006 decision of the Respondent, State Board of Retirement (SBR), denying his application for Section 7 accidental disability retirement benefits. (Exhibit 1). The appeal was timely filed.

(Exhibit 2). A hearing was held on October 31, 2007 at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, Boston, MA.

At the hearing, ten (10) exhibits were marked, including many multi-page medical records. No testimony was taken. The parties agreed that the appropriate resolution of this case is the remand to an all new Medical Panel. One (1) tape was made of the proceedings.

FINDINGS OF FACT

Based upon the documents submitted at the hearing in the above-entitled matter, I hereby render the following findings of fact:

1. The Petitioner, Anthony Pimental, d.o.b. 09/12/59, was employed by the Department of Correction (DOC) as a Correction Officer as of September 6, 1992. (Exhibit 5).

2. While at work on August 4, 2004, the Petitioner sustained an injury to his right knee, left shoulder and neck. As he was walking downstairs into a basement, he missed a step and fell. He hyper flexed his knee and outstretched his left arm. He has not returned to work.

3. The Petitioner has been receiving workers' compensation benefits since the injury.

4. Following the injury, the Petitioner was treated by Drs. Borg-Stein, Bulcyznski, and Hammer. He underwent surgery on his right knee to repair the posterior horn of the medial meniscus in January 2005. He continued to experience problems with the knee and had a further MRI in 2005 that revealed an ongoing tear. (Exhibit 10).

5. On September 23, 2005, Richard Renaud, M.D. of BP Medical Assessments concluded that "I do not feel that this patient has pathology in the cervical spine that would make him less likely to withstand the trauma [of returning to work as a corrections officer] than someone with a normal cervical spine". (Id.).

6. The Petitioner applied for accidental disability retirement benefits on January 31, 2006. (Exhibit 3).

7. In early 2006, the Petitioner continued to complain of difficulties with his left shoulder and underwent several MRI studies. The first took place prior to the April 2006 Medical Panel examination and the second occurred three (3) days after that examination. In January 2006, Dr. Hammer recommended that the Petitioner undergo left shoulder and noted that an April 2006 MRI was pending. (Exhibit 10).

8. Regional Medical Panel Doctors Ronald E. Rosenthal, Avraham Almozlino and Victor A. Conforti evaluated the Petitioner on April 21, 2006. The Panel answered "no" to Question 1 on the Certificate. (Exhibit 8).

9. The Panel Doctors were aware that the Petitioner was undergoing further MRI testing on the left shoulder three (3) days following the Panel exam and that surgery had been discussed with the Petitioner. All three (3) Panel Doctors were not present during the entire course of the clinical examination and the interview. One (1) doctor was still completing dictation related to a previous evaluation. (Id.).

10. The April 24, 2006 MRI revealed a SLAP tear in the left shoulder. (Exhibit 10).

11. On July 21, 2006, the Petitioner underwent a SLAP tear repair, rotator cuff debridement, and an arthroscopy of the left shoulder. (Id.).

12. On September 28, 2006, the SBR voted to deny the Petitioner's application for accidental disability retirement benefits. (Exhibit 1).

13. The Petitioner filed a timely appeal. (Exhibit 2).

CONCLUSION

The parties agree that the Petitioner was deprived of a proper Medical Panel
evaluation. The Medical Panel was aware of the pending MRI evaluation of the left shoulder and the contemplated surgery. However, the Doctors chose to issue their findings without waiting for the test results in order to clarify their diagnosis. In so doing, they were deprived of an important diagnostic tool during the evaluation process.

Further, not all three (3) Panel Doctors were present during each step of the evaluation process. This flaw is, in and of itself, a violation of G.L. c. 32 s. 6(3).

Based upon the case record and the agreement of the parties, this matter is remanded to the SBR for a remand to an all-new Regional Medical Panel which will conduct a thorough, proper clinical examination and have access to all pertinent medical records. The new Panel will render an assessment based upon all of the evidence before it and apply the correct standards of law.

So ordered.

Division of Administrative Law Appeals,

Judithann Burke
Administrative Magistrate

DATED: December 31, 2007


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