COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS


Appeal of:

Charles Piso,

Petitioner

v. CR-08-130

Framingham Retirement System,

Respondent

Appearance for Petitioner:

Paul T. Hynes, Esq.,

Angoff, Goldman
45 Bromfield Street
Boston, MA 02108

Appearance for Respondent:

Thomas Gibson, Esq.

2400 Massachusetts Avenue
Cambridge, MA 02140

Administrative Magistrate:

Joan Freiman Fink, Esq.

DECISION

Pursuant to G.L. c. 32 §16(4), the Petitioner, Charles Piso, is appealing the February 20, 2008 decision of the Respondent, Framingham Retirement System, denying his request for accidental disability retirement benefits without convening a medical panel (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 May 7, 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 -10). The Respondent's Pre-hearing Memorandum was marked as "A" for identification. The Petitioner, Charles Piso, testified in his 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, Charles Piso, d.o.b. 7/30/64, commenced employment as a police officer with the Town of Framingham Police Department in 1995 (testimony of the Petitioner).

2. Prior to commencing employment with the Framingham Police Department, the Petitioner successfully passed a pre-employment physical (testimony of the Petitioner).

3. The Petitioner's duties as a police officer included serving as the crisis negotiator for the Critical Incident Control Team, a specialized SWAT unit deployed in specific dangerous situations (testimony of the Petitioner).

4. On March 12, 2002, the Petitioner was working an overtime day shift when he was dispatched to respond to a call involving a domestic disturbance (testimony of the Petitioner).

5. When he arrived at the scene, the Petitioner was confronted by a suspect who was naked and holding a knife. Although the suspect agreed to be taken to the hospital for a psychiatric evaluation, when approached by another police officer who had arrived at the scene, the subject stabbed that officer (testimony of the Petitioner).

6. The Petitioner drew his weapon and attempted to tackle the subject. He also tried to pepper spray the subject; however, the pepper spray inadvertently hit the wall. The subject then hit the Petitioner on the head causing him to sustain a head injury. The subject also bit the Petitioner on the arm through his police jacket (testimony of the Petitioner).

7. The Petitioner was taken by ambulance to the Metro West Medical Center where he was treated for a head injury, wrist injury, and injury to his jaw and face. The Petitioner had staples put in his head where the suspect had struck him (testimony of the Petitioner, Exhibit 10).

8. After this incident, the Petitioner remained out of work for approximately one month. In mid-April of 2002, he attempted to return to light duty. On the fourth day of light duty, while moving some boxes, the Petitioner experienced intense shoulder and wrist pain. He left work after that day and did not return until the middle of June of 2002 (testimony of the Petitioner).

9. Although the Petitioner underwent a course of physical therapy, he still experienced right shoulder pain. He was referred to Dr. Fabian, an orthopedic surgeon, for treatment (testimony of the Petitioner).

10. He underwent an MRI of the right shoulder on May 15, 2002 that revealed a "partial tear, degeneration or tendinitis in the distal supra-spinatus tendon; degenerative changes in the greater tuberosity" (Exhibit 8A).

11. In June of 2002, the Petitioner returned to work on a full-time basis. He performed all his duties including his work with the Crisis Incident Control Team (testimony of the Petitioner).

12. Although the Petitioner experienced periodic symptoms of right shoulder pain, he continued working until August of 2005 (testimony of the Petitioner).

13. On August 25, 2005, the Petitioner, while off duty, injured his shoulder and arm lifting his four year old daughter (testimony of the Petitioner).

14. The Petitioner reported the injury to his employer and was instructed to go to Framingham Orthopedics. He was treated at Framingham Orthopedics by Dr. Herman, who gave him a cortisone injection and put him on restricted duty for ten days (testimony of the Petitioner).

15. The Petitioner worked as a dispatcher for ten days but as his pain did not abate, Dr. Herman gave him another cortisone injection (testimony of the Petitioner).

16. The Petitioner then received authorization from the Framingham Police Department to be examined by Dr. Sean Rockett, an orthopedic surgeon. Dr. Rockett arranged for an additional MRI of the right shoulder that was performed on September 28, 2005. This MRI revealed a "full thickness tear which is worse now than previously noted on the comparative study from 5/5/02; mild inflammatory changes in the acromicoclavicular joint without impingement" (Exhibit 8B).

17. On November 9, 2005, Dr. Rockett performed right shoulder arthroscopy, subacromial decompression, and repair of massive cuff tear (Exhibit 10).

18. After surgery, the Petitioner underwent physical therapy (testimony of the Petitioner).

19. The Petitioner did not return to work after the surgery in November of 2005 (testimony of the Petitioner).

20. On September 24, 2006, the Petitioner filed an application for accidental disability retirement claiming that he is permanently unable to perform the essential duties of his position since November 9, 2005, as the result of an injury at work on March 12, 2002 (Exhibit 3).

21. Dr. Sean Rockett filed a Physician's Statement in Support of the Application in which he responded to all three certificate questions in the affirmative. Dr. Rockett stated that the Petitioner's permanent disability was due to persistent symptoms and weakness in his right shoulder following surgery performed in November of 2005 (Exhibit 4).

22. Dr. Rockett noted in his Physician's Statement that the Petitioner was treated in March of 2002 for a rotator cuff injury and that his "symptoms subsided with the treatment provided at that time and he was able to return to work full duty. He did have some persistent symptoms in the shoulder but not enough to prevent him from performing the duties required of him as a police officer" (Exhibit 4).

23. On the issue of causation, Dr. Rockett offered that while his injury at home in 2002 may have exacerbated his symptoms, his current right shoulder disability is the proximal result of the injury he sustained at work in 2002 (Exhibit 4).

24. On June 11, 2007, the Framingham Retirement System sought clarification from Dr. Rockett concerning the Petitioner's injury at work on March 12, 2002 and the subsequent injury resulting from lifting his child on August 5, 2005 (Exhibit 6).

25. On October 8, 2007, Dr. Rockett responded to this request for clarification indicating that "the right shoulder rotator cuff mechanism was compromised due to the initial injury which occurred on March 12, 2002 … The massive tear…could not have been caused in total by the child lifting incident." The Petitioner's "injury and need for surgical intervention were due to an acute tear superimposed upon a chronic tear" (Exhibit 7)

26. Regarding the initial injury, Dr. Rockett stated that the Petitioner "was able to function at a high level with the tear after the initial injury … however, the second incident where he lifted his child caused the shoulder suspension complex to erode due to the most recent injury of August 2005" (Exhibit 7).

27. On February 20, 2008, the Framingham Retirement System sent the Petitioner notification that it had denied his application without convening a medical panel (Exhibit 1).

28. On February 22, 2008, the Petitioner filed a timely appeal of this decision 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, including an affirmative medical panel 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 .

After reviewing the testimony and evidence presented in this case, I conclude that the Petitioner has not met the threshold requirements for entitlement to an accidental disability retirement benefits in accordance with G.L. c. 32 §7(1) in that he did not become incapacitated by reason of a personal injury sustained or hazard undergone as a result of, and while in the performance of, his duties.

There is no dispute that the Petitioner suffered a work-related injury to his right shoulder in March of 2002 as a result of his involvement in a violent interaction with a suspect in a domestic relations dispute. However, the record reflects that the Petitioner recovered sufficiently from that injury to return to his full duties in April of 2002. He remained in that position performing all the functions of a police officer including participation in the Crisis Incident Control Team for a period of over three years until August of 2005 when he sustained a further injury to his right shoulder while lifting his child at home, a non-work related injury.

Dr. Sean Rockett, the orthopedic surgeon who submitted a Statement in Support of the Petitioner's application for accidental disability retirement benefits, acknowledged that Mr. Piso was able to perform the essential duties of his position from April of 2002 until his injury at home in August of 2005. Dr. Rockett further acknowledged that the MRI of the right shoulder performed in 2002 revealed that Mr. Piso "may have sustained a partial tear of the rotator cuff," while the MRI of the Petitioner's right shoulder performed in 2005 after the lifting incident involving his child, revealed that the partial tear had "progressed to a full thick tear due to the August 25, 2005 incident."

It is well established that non-work related aggravations of a work related disability are not compensable under the provisions of Chapter 32. Lisbon v. CRAB, 670 N.E. 2d 392 (1996); Wakefield v. CRAB, 226 N.E. 2d 245 (1967). In Marie Leonard v. State Board of Retirement, CR-90-1158 (DALA. dec. 11/15/93; CRAB dec. 3/21/94), CRAB upheld the denial of an application for accidental disability retirement benefits without convening a medical panel where the Petitioner's act of sneezing in the shower at home caused her to become disabled by aggravating a prior work-related personal injury.

In accordance with 840 CMR 10.09(2), "[a]t any stage of a proceeding on an ordinary or accidental disability application the retirement board may terminate the proceeding any deny the application if it determines that the member cannot be retired as a matter of law." Since Mr. Piso has not made out a threshold showing of entitlement to accidental disability retirement benefits, the decision of the Framingham Retirement System to deny his application without convening a medical panel is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Joan Freiman Fink
Administrative Magistrate

Dated: 6/12/08


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