COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Arthur Geary,

Petitioner

v. Docket No. CR-06-830

Westfield Retirement Board,

Respondent

Appearance for Petitioner:

Arthur Geary, pro se

80 Route 20
Chester, MA 01011

Appearance for Respondent:

Michael Sacco, Esq.

285 College Highway
PO Box 479
Southampton, MA 01073

Administrative Magistrate:

Maria A. Imparato, Esq.

DECISION

Arthur Geary filed a timely appeal under G. L. c. 32, s. 16 (4) of the October 19, 2006 decision of the Westfield Retirement Board to deny his application for accidental disability retirement benefits without convening a medical panel. (Exs. 1, 2)

I held a hearing on November 27, 2007 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston. I admitted documents into evidence. (Exs. 1 - 20) I marked the Petitioner's pre-hearing memorandum "A" for identification, and the Respondent's pre-hearing memorandum "B" for identification. The Petitioner testified, as did his wife, Debra Butler Geary. There is one tape cassette of the hearing.

FINDINGS OF FACT

1. Arthur Geary, d.o.b. 2/9/1951, worked for the Westfield Vocational Technical High School as a shop assistant in the computer shop from September 26, 1997 to June 10, 1999.

2. Mr. Geary's job duties included taking directions from teachers and "implement[ing] them in the classroom and/or shop setting to assist students with instruction and hands-on activities." Mr. Geary was responsible to read shop manuals and job specifications, interpret schematic drawings, complete shop assignments to trade standard, assist the shop instructor to maintain safety procedures in the shop environment, assist in enforcing school rules, regulations and policies, and perform other duties as assigned by the superintendent or his designee. Mr. Geary was sometimes required to move computers. (Ex. 7, Testimony)

3. On June 10, 1999 Mr. Geary moved 28 or 29 computers and monitors from classroom tables, carried them about 20 feet, and placed them onto shelves using a stepladder. Mr. Geary felt twinges and some pain in his back. He then bent down to pick up the school's daily bulletin which was slipped under the classroom door. He felt acute pain in his lower back. (Testimony, Exs. 8, 19, 20)

4. The daily bulletin is distributed daily in the school. It can be between one and five pages long. Mr. Geary picked it up to be sure that no one slipped on it. (Testimony)

5. Mr. Geary saw the school nurse, and then had his wife pick him up and bring him to a chiropractor, William J. Garrity, who diagnosed lumbar sprain/strain, facet syndrome, thoracic sprain/strain and thoracic pain. Mr. Geary received regular chiropractic adjustments until in or about March 2000. (Ex. 11)

6. Dr. Garrity ordered x-rays of the lumbosacral spine on June 14, 1999 that demonstrated mild to moderate disc disease and mild degenerative joint disease, with no fracture, focal lesion, loss of volume or suspicious paraspinal abnormality. (Ex. 12)

7. On July 1, 1999 Mr. Geary consulted Lawrence H. Field, MD, who is board-certified in physical medicine and rehabilitation, stating that when he bent over to pick up a piece of paper on June 10th, his back went out with radiation of pain into this right leg and foot. Dr. Field noted that Mr. Geary had experienced bowel incontinence since three days after the event, and that Mr. Geary had experienced the same symptom some years previously when he herniated his L5-S1 disc. Dr. Field noted his impression of an acute flare up of chronic low back pain, with a new disc herniation at L4-5. He ordered an MRI. (Ex. 13, 7/1/1999)

8. An MRI of the lumbar spine on July 8, 1999 demonstrated "a new right paramedian herniation of the L4-5 disc that is affecting the traversing right L5 root." (The study was compared to a previous MRI on March 13, 1990 that demonstrated a "left sided herniation [at] L5-S1.") The radiologist concluded that "the central disc protrusion at L3-4 and the left paramedian disc protrusion at L2-3 were probably both present on the earlier examination and the left sided L2-3 abnormality is more significant slightly deforming the thecal sac and affecting the course of the traversing left L3 root. The previously demonstrated midline and left paramedian protrusion of the L5-S1 disc is smaller and is not causing any compression of the left S1 root." (Exs. 10, 14)

9. Michael Solon, MD, an internist, referred Mr. Geary for consultation to Christopher H. Comey, MD, a neurosurgeon, on July 22, 1999. Dr. Comey noted that Mr. Geary "bent to pick up an object and felt immediate back pain with radiation down the right greater than left posterolateral leg." He noted that Mr. Geary had some leaking of urine and stool. "[M]y recommendation would be to perform a right L4-5 discectomy within the next day or so. The patient is quite unwilling at this point to undergo surgery. I did explain to him that there is a small but real chance of permanent damage to his bowel and bladder function." Dr. Comey asked Mr. Geary to return in three weeks for follow-up. (Ex. 15, 7/22/1999)

10. Dr. Comey saw Mr. Geary in follow-up on September 2, 1999. Mr. Geary reported a decrease in the intensity of his back and right leg pain, but had some involvement of occasional left posterolateral leg pain, with some subjective bowel and bladder complaints. Dr. Comey opined that Mr. Geary appeared to be improving in terms of pain control with chiropractic care. He counseled Mr. Geary about weight loss "since he has degenerative disc disease [and] this may alleviate some of his symptoms." (Ex. 15, 9/2/1999)

11. On September 2, 1999 Dr. Comey completed a work capacity evaluation indicating that Mr. Geary could do sedentary work with a lifting maximum of 10 pounds, occasionally carrying small objects and occasionally walking. He indicated that Mr. Geary's pain became worse with prolonged sitting or standing. (Ex. 15, 9/2/1999)

12. Mr. Geary saw Dr. Solon on September 8, 1999. Dr. Solon noted that Mr. Geary had declined surgery for his disc herniation. "His plan is to see how it goes for a year with chiropractic, and if he is not at an acceptable level of function at that time, will then go for surgery." He referred Mr. Geary for dietary counseling for obesity. (Ex. 16, 9/2/1999)

13. By letter of September 24, 1999 from the Westfield public schools Director of Human Resources, Mr. Geary was invited back to work on October 4, 1999. "We will work with the shop instructors to modify your workday responsibilities keeping the restrictions [Dr. Comey] has set forth in mind." Mr. Geary did not return to work. (Ex. 5, 9/24/1999)

14. Dr. Comey re-evaluated Mr. Geary on December 9, 1999. He noted that Mr. Geary had lost 19 pounds, and that he needed to lose approximately 50-75 more pounds. He noted, "Overall, Mr. Geary continues to make reasonable progress with conservative measures. … I will plan on seeing him back on an as-needed basis." (Ex. 15, 12/9/1999)

15. By letter of December 22, 1999 the Director of Human Resources notified Mr. Geary that his most recent work capacity evaluation indicated that Mr. Geary could return to work by January 1, 2000, with a lifting maximum. "Based upon your job description as a shop assistant in the electronics lab your lifting requirement can be kept within the doctor's limits. … We will work with the shop instructor to insure the restrictions stated in your evaluation are adhered." Mr. Geary did not return to work. (Ex. 5, 12/22/1999)

16. By letter of July 28, 2000 to the retirement board, Dr. Field indicated that Mr. Geary had returned to see him on June 7, 2000 "with continued low back pain." Dr. Field offered diagnoses of herniated lumbosacral disc, myoligamentous lumbosacral strain, and chronic low back pain. He opined that Mr. Geary could not lift greater than 10 pounds, and should avoid repetitive bending, stooping, prolonged sitting and prolonged standing. Dr. Field opined that Mr. Geary's problem was permanent. "I would not expect any significant improvement with more time. … He did have a past medical history of chronic low back pain with a previous herniated disc. This could contribute to his ongoing back pain symptoms. However there are acute new changes with the injury noted 6/10/99." (Ex. 13, 7/28/00)

17. By letter of September 29, 2000 the Director of Human Resources stated, "You have not called or reported for work at the Vocational Technical High School, therefore I can only assume you have abandoned your position. Please send a letter of resignation for our files by October 13, 2000 or we will regard this letter as your resignation letter." (Ex. 5, 9/29/00)

18. On October 25, 2002 Steven A. Silver, MD, an orthopedic surgeon, evaluated Mr. Geary for worker's compensation purposes. Dr. Silver diagnosed degenerative disc disease at L3-4 and L4-5, and a herniated lumbar disc at L4-5. He opined that Mr. Geary was unable to return to work. "It is unlikely that anything will effectuate resolution of this gentleman's difficulties other than surgery and weight loss." He opined that Mr. Geary could sit or stand for only 20-30 minutes at a time. (Ex. 18)

19. The employer's insurance company forwarded to Dr. Silver a job description for Mr. Geary, together with a surveillance tape. Dr. Silver amended his opinion by addendum of January 20, 2003 when he opined that Mr. Geary "can perform the duties of Vocational Teacher, to assist students with learning activities. I feel than he can work 4-6 hours and perform the duties as described. These include following instructions, reading shop manuals, interpreting schematic drawings and helping students complete shop assignments." (Ex. 18)

20. Mr. Geary filed an application for accidental disability retirement benefits on May 21, 2006 citing an L4-5 disc herniation as the result of picking up the daily bulletin on June 10, 1999. (Ex. 3)

21. Paul L. Filippini, MD, an orthopedic surgeon, filed a statement in support of the application dated February 3, 2006 answering all certificate questions in the affirmative. In a letter to Mr. Geary's then-attorney, Dr. Filippini opined that Mr. Geary was injured on June 10, 1999 "while working when he was in the process of lifting thirty or more personal computers and monitors for students at a vocational school when he felt a sudden severe sharp pain in his lower back." He noted Mr. Geary's complaints of constant discomfort, the use of a daily enema, urination every half hour and wakefulness all night because of pain. He opined that there is a "clear causal relationship" between the injury of June 10, 1999 and his present condition. He opined that Mr. Geary was no longer a surgical candidate. (Ex. 4)
22. Mr. Geary's worker's compensation claim was settled by lump sum agreement on March 1, 2007. (Ex. 8)

23. The Board denied Mr. Geary's application without convening a medical panel for failure to sustain a compensable personal injury because Mr. Geary was injured by a job duty that involved common movements done frequently both in and out of work. ("A")

CONCLUSION AND ORDER

The decision of the Westfield Retirement Board is reversed. The Board is instructed to convene a regional medical panel of orthopedic surgeons to examine Arthur Geary.

Although the Petitioner's application indicates that he was injured when he bent over to pick up the daily bulletin, the Petitioner testified, and the record reflects, that he had moved 28 or 29 computers, carried them 20 feet, and placed them on shelves using a step ladder immediately prior to picking up the daily bulletin. This distinguishes the Petitioner's injury from one caused by "job duties involving common movements done frequently by many humans both in and out of work" that are not compensable. Adams v. CRAB, 414 Mass. 360, 366 (1993).

The Petitioner is entitled to have the issue of causation determined by a regional medical panel, assuming that the panel reaches the issue of causation. Whether the Petitioner's L4-5 disc herniated as a result of moving computers, or merely as a result of bending over, is a medical question beyond the common knowledge of a Magistrate and should be addressed by orthopedic surgeons.

I conclude that picking up the daily bulletin was a job duty of the Petitioner because one of his duties was to "maintain safety procedures in the shop environment." The Petitioner picked up the daily bulletin when it was slipped under the door of the shop so that no one would slip on it.

This case is remanded with instructions noted above.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Maria A. Imparato
Administrative Magistrate

DATED: 2/6/08