COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals


David Leroux

Petitioner


Docket Nos. CR-06-25; CR-08-665

v.
Dated: January 15, 2010


State Board of Retirement

Respondent


Appearance for Petitioner:

Deborah G. Kohl, Esq.

Law Offices of Deborah Kohl
191 Bedford Street
Fall River, MA 02720

Appearance for Respondent


State Board of Retirement:

Crystal Chow, Esq


Associate General Counsel
State Board of Retirement
One Ashburton Place, Room 1219
Boston, MA 02108

Administrative Magistrate:

Richard C. Heidlage, Esq.

SUMMARY OF DECISION

Petitioner has not met his burden of establishing that his disability was the natural and proximate result of the incident on account of which retirement was claimed.


CORRECTED DECISION AND ORDER

Pursuant to G.L. c. 32, §16(4), the Petitioner David Leroux is appealing the September 25, 2008 decision of the Respondent, State Board of Retirement, denying his application for Accidental Disability Retirement. Exhibit 1. The Appellant filed a timely appeal of this decision in accordance with the provisions of G.L. c. 32 § 16(4). (Exhibit 2).

A hearing on the merits of the appeal was held on May 19, 2009 at the offices of the Division of Administrative Law Appeals, 98 N. Washington Street, Boston, MA. The following documents were entered into evidence at the hearing:
Exhibit

1. 9/25/08 Retirement Board notice of denial of application;
2. 12/30/05 Retirement Board notice of denial of application;
3. Member's Application for Disability Retirement;
4. Physician's Statement, Disability Retirement Application;
5. Employer's Statement Pertaining to a Member's Application for Disability Retirement;

6. 7/7/08 Medical Panel Certificate;

6A. 7/18/08 Retirement Board request for clarification;

6B. 9/9/08 Medical Panel Clarification and additional requests for clarification;

7. 11/29/05 Medical Panel Report;

7A. Transmittal of Background Information to a Regional Medical panel;

8. 2/1/08 Notice of request for new medical panel and request for new medical panel;


9. Medical Records provided to medical panel;

A. Petitioner's Pre-Hearing Memorandum;

B. Respondent's Pre-Hearing Memorandum;

C. Petitioner's Post-Hearing Memorandum;

D. Respondent's Post-Hearing Memorandum.

FINDINGS OF FACT

Based on the documents entered into evidence and the testimony of Petitioner, I make the following findings of fact:

1. The petitioner, David Leroux, d.o.b. 8/13/70, was employed as a Correctional Officer with the Department of Correction from 1996 to March 18, 2004. Ex. 1, 5.

2. On October 31, 2003, Mr. Leroux was examined by Joseph Daigneault, M.D. Dr. Daigneault stated in his treatment notes:
Dave presents with left lower back pain and numbness and tingling radiating down the back of his left leg to the bottom of his foot. This has been bothering him for about 6 months but has significantly worsened over the past week. It especially bothers him if he has to sit for any length of time. He has not noticed any weakness of the leg. He does not describe pain going down his leg as much as a numbness and tingling. He has had sciatica in the past.

* * *

A/P: (1) Left lower back pain with radiculopathy - Question sciatica versus herniated disc. . . .

Exhibit 9.

3. On November 27, 2003, while attempting to restrain an inmate, Mr. Leroux sustained an injury to his lower back. Ex. 3, 5.

4. On March 13, 2004 he underwent an MRI of the lumbar spine. The MRI findings were as follows:
Grade 1-2 anterolisthesis of L5 on S1 appears to be associated with bilateral pars defects

Disc degeneration is present at the L4-5 and L5-S1 levels.

* * *

At L4-5, left paracentral disc protrusion likely impinges upon the traversing left L5 nerve root without significant central canal or foraminal stenosis.

L5-S1, broad based central disc bulge with annular tear and bilateral facet hypertrophy/ligamentum flavum infolding severely impinge upon exiting bilateral L5 nerve roots without significant central canal stenosis.

Ex. 9.

5. Mr. Leroux continued working until March 17, 2004. Ex. 5.

6. On May 18, 2005, Mr. Leroux applied for accidental disability retirement on the basis of the herniated disc at L5 - S1. Ex. 3.

7. A regional medical panel made up of Drs. Groves, Hazel and Safran examined Mr. Leroux and issued its report on November 29, 2005. The panel concluded that Mr. Leroux is currently disabled but that the disability is not likely to be permanent. It answered the third question as to causation in the affirmative.

8. On or about December 30, 2005, the Respondent denied the Petitioner's application. Petitioner timely appealed.

9. Following the filing of the appeal to the Division, the Petitioner and Respondent continued to request clarification from the panel with respect to its conclusions on permanency. In response to requests for clarification, the panel issued clarifying supplements to its report, which clarifications were dated January 27, 2007, May 15, 2007, April 20, 2007 and September 26, 2007. Ex. 7. In the April 20, 2007 supplementary report, the panel concluded:

IMPRESSION:

Hence, the diagnosis here would appear to be back sprain, with disc protrusion, the latter substantially resolved, superimposed on a pre-existent condition.

This entire picture is clouded by pain behaviors, which are non-physiologic.

* * *

There are no objective abnormalities on examination now to support an ongoing disability caused by injury per se.

Ex. 7.

10. In its September 26, 2007 supplementary report, the panel noted:

It is extremely difficult to evaluate Mr. Leroux's situation because while it is clear that arthritic changes can result in pain, Mr. Leroux's behavior at the examination suggested that at least in part and possibly much of the pain he describes could be related to over reaction or deliberate falsification of the degree of symptoms.

For this reason, a re-evaluation was advised and a permanency determination was not made.

Ex. 7.

11. Following the receipt of these clarifications, Mr. Leroux requested that a new medical panel be appointed. On February 1, 2008 the Respondent notified Petitioner that it had voted to request a new medical panel. Ex. 8. On February 8, Respondent requested PERAC to appoint a new medical panel and as its reason, stated that "[t]he Board has attempted to clarify the question of permanency of this member's disability 3 times and still the medical panel has not clearly answered the question and addressed the appropriate standard." Ex. 8.

12. A regional medical panel was appointed and was made up of Drs. Mansfield, Friedman and Sciascia. The panel examined the Petitioner and issued its report on July 7, 2008. Ex. 6. With regard to Question 3 on causation, the panel stated:
Dr. Daigneault's note 10/31/03, shortly before the accident of 11/27/03, indicates that Mr. Leroux had had increasing complaints of low-back pain and left sciatica for six months before the 10/31/03 visit. The spondylolisthesis was clearly a pre-existing condition as it probably originated in Mr. Leroux's youth. Given the fact that he had had six months of increasing back and leg pain, it would be hard to say that the work incident caused or even aggravated the L.4-L.5 disc herniation.

Ex. 6 at p. 4.

13. On July 18, 2008, the Respondent requested a clarification as to the panel's response to the PERAC Aggravation of a Pre-Existing Condition Standard. Ex. 6A. In the panel's August 21, 2008 response, it stated:
The standard states that if the acceleration of a pre-existing condition or injury is as a result of an accident or hazard undergone in the performance of the Applicant's duties, causation would be established. However, if the disability is due to the natural progression of the pre-existing condition or was not aggravated by the alleged injury sustained or hazard undergone, causation would not be established. We refer you to the second paragraph under the heading of our Certificate, "History of the Applicant's Illness or Condition." The records reveal that Mr. Leroux's primary physician, Dr. Joseph Daignault, had seen him on 10/31/03, approximately a month before the accident of 11/27/03. The note indicated that Mr. Leroux presented with left-sided low-back pain and numbness and tingling radiating down the back of the left leg to the bottom of his foot, which had been bothering him for six months but had worsened over the preceding week. To us, this indicates that Mr. Leroux had already suffered a disc herniation at L.4-L.5 and was having increasing symptomatology because of it.

The next paragraph indicates that Mr. Leroux continued to work for three months after the injury. This indicates that the injury did not precipitate Mr. Leroux's inability to continue working. Rather, he stopped work after the MRI scan indicated a disc herniation in March, 2004.

Therefore, the panel's opinion is that Mr. Leroux's disability is due to the natural progression of his pre-existing condition, an L.4-L.5 disc herniation, and was not demonstrably aggravated by the injury sustained. Therefore, a causation is not established according to PERAC's pre-existing condition standard.

Ex. 6A.

14. I find that Mr. Leroux suffered a disc herniation at L.4-L.5 before the incident that occurred on November 27, 2003 and that his disability is due to the natural progression of that pre-existing condition.

15. I further find that the incident of November 27, 2003 did not substantially aggravate his pre-existing condition or accelerate his disability.

CONCLUSION


Mr. Leroux has not met his burden of establishing that he is entitled to accidental disability retirement pursuant to § 7 of Chapter 32 and the decision of the State Board of Retirement denying the claim is affirmed.

The burden of proving each element of an accidental disability claim is on the applicant. Lisbon v. Contributory Retirement Appeal Board, 670 N.E.2d 392, 399, 41 Mass. App. Ct. 246, 255 (1996). This is true both of the issue of disability and, for §7 accidental disability cases, the issue of the causal nexus between the disability and a job-related accident. See Daley v. Contributory Retirement Appeal Bd., 60 Mass.App.Ct. 1110, 801 N.E.2d 324 (2004); Hough v. Contributory Retirement Appeal Bd., 309 Mass. 534, 540, 36 N.E.2d 415 (1941); Wakefield Contributory Retirement Bd. v. Contributory Retirement Appeal Bd., 352 Mass. 499, 502, 226 N.E.2d 245 (1967). In order to establish his case, the member is required to do so by a preponderance of the evidence. Lisbon v. Contributory Retirement Appeal Board, 670 N.E.2d 392, 399, 41 Mass. App. Ct. 246, 255 (1996).

In this case, the Respondent does not contest that the Petitioner is unable to perform the essential duties of his position or that his disability is permanent. The only issue for decision is whether the Petitioner has established by a preponderance of the evidence that his disability is the natural and proximate result of the personal injury sustained or hazard undergone on account of which retirement is claimed. I conclude that he has not.

Threshold Requirement of an Affirmative Medical Panel Certificate

Section 7(1) of Chapter 32 provides that no accidental disability, shall be allowed "unless the board, after a review of the evidence it deems appropriate, and after review by the commission pursuant to the provisions of section twenty-one, and including in any event an examination by the regional medical panel provided for in subdivision (3) of section six and including a certification of such incapacity by a majority of the physicians on such medical panel, shall find that such member is unable to perform the essential duties of his job and that such inability is likely to be permanent, and that he should be so retired." (Emphasis added.)

The courts have interpreted the requirement for a regional medical panel examination to mean that an affirmative certificate of the regional medical panel is a "condition precedent" to the board's action on an ordinary or accidental disability retirement. Quincy Retirement Board v. Contributory Retirement Appeal Board, 340 Mass. 56, 60, 162 N.E. 2d 802, 805 (1959), citing Cassier v. Contributory Retirement Appeal Bd., 332 Mass. 237, 240, 124 N.E.2d 516; Hunt v . Contributory Retirement Appeal Bd., 332 Mass. 625, 627, 127 N.E.2d 171; Mathewson v. Contributory Retirement Appeal Bd., 335 Mass. 610, 613-14, 141 N.E.2d 522; Malden Retirement Board v. Contributory Retirement Appeal Board, 1 Mass.App.Ct. 420, 298 N.E.2d 902 (1973); Olson-Walker v. State Retirement Bd., 54 Mass.App.Ct. 1106, 765 N.E.2d 285 (2002). Accordingly, unless the medical panel employed an erroneous medical standard, a negative response to any of the questions is conclusive and precludes the allowance of the application.
Mr. Leroux attempts to address this requirement and the fact that neither of the medical panels that examined him in this matter answered all three questions affirmatively in two ways. First, he argues that it was improper for the second medical panel to address any question other than the issue of permanency and that, in any event, the two certificates should be read together such that the first panel's affirmative response to questions 1 and 3 together with the second panel's affirmative response to questions 1 and 2 together constitute an affirmative response to all three. Second, he argues that the panel applied an improper standard on causation in that it "relied on the equivalent of a recitation of risk factors in arriving at its ultimate negative response to Question Three." Petitioner's Post-Hearing Memorandum at Part 2.

I have found no cases, and the Petitioner has cited none, for the proposition that a new medical panel may be convened to respond to a single issue to supplement the certificate of another panel. On the other hand, § 6(3) provides that "the panel" shall issue the required certificate and that "the physicians on such panel" must make the determination of the member's medical condition:
[n]o member shall be retired for a disability under the provisions of this section or section seven unless he has been examined first by a regional medical panel and unless the physicians on such panel, after such examination, shall review the pertinent facts in the case, and such other written and oral evidence as the applicant and the employer may present to be reviewed in making a determination of the member's medical condition. . . . At the conclusion of such examination . . . the panel shall certify to the board in writing whether such physicians on said panel find that such member is mentally or physically incapacitated for further duty and that such incapacity is likely to be permanent, and in any case involving a retirement under section seven, the panel physicians shall state further whether or not the disability is such as might be the natural and proximate result of the accident or hazard undergone or on account of which retirement is claimed under said section seven.

Emphasis added.

The PERAC disability regulations, 840 CMR 10.00 et seq. provide at section 10.08(7) that a new medical panel "shall not be provided with copies of the certificates and narratives of medical panels which previously examined the member . . . ." In this case, PERAC appointed the new panel, provided them with the required forms containing all three questions, and submitted the completed form to the Respondent board with the notation that "P.E.R.A.C. has completed its review of the following Medical Panel Certificate(s) and found the Certificate(s) to be in order . . . ."

Taking these together, I conclude that a new medical panel, under the procedures established and approved by PERAC, is required to examine the member and issue its certificate totally independently of any other medical panel and that a single certificate, answering all three questions in the affirmative, is required under Chapter 32. Once a new medical panel is requested and granted by PERAC, any earlier panel's findings are irrelevant.

Application of the Proper Standard as to Causality

I also conclude that the panel applied the proper standard as to causation. The Panel answered "no" to the question as to whether the incapacity 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." It based its conclusion on its review of the medical records, and specifically on Dr. Daigneault's note of October 31, 2003, quoted in Finding No. 2 above. The panel concluded from this note that the disc herniation had been present before the incident of November 27, 2003. The board was aware that Mr. Leroux continued to work for three months after the November 27 incident and reported that Mr. Leroux informed them that "as soon as his supervisor found out about the results of the MRI scan he would no longer allow him to work." The panel concluded that the herniation itself caused Mr. Leroux's inability to continue working rather than any change in his symptomology. There was no evidence in the record that the incident aggravated the existing condition. I conclude that the panel applied the correct standard as described in its report and the August 21, 2008 further explanation.

Failure Otherwise to Meet the Burden of Proof

Even if the medical panel had answered the third question in the affirmative, Mr. Leroux has not met his burden of proof. While an affirmative medical panel certificate is a condition precedent to an award of a disability pension, it is not conclusive and the retirement board or CRAB must make the ultimate determination based on the record as a whole. See, Blanchette v. Contributory Retirement Appeal Bd., 20 Mass.App.Ct. 479 (1985). In Blanchette, the Appeals Court noted:

The medical panel's certification as to the plaintiff's condition (that his disability 'might be the natural and proximate result' of a personal injury which the plaintiff sustained as a result of his employment) is not conclusive of the ultimate fact of causal connection but stands only as some evidence on the issue. Wakefield Contributory Retirement Bd. v. Contributory Retirement Appeal Bd., supra. The final determination in this case whether causation was proved was reserved to the appeal board, based on the facts found and all the underlying evidence, including both the medical and non-medical facts.

In Wakefield Contributory Retirement Bd. v. Contributory Retirement Appeal Bd., 352 Mass. 499, 502, 226 N.E.2d 245, 247 (1967) the SJC made the same point:
Part (3) of the medical certificate serves a purpose similar to that discussed with regard to parts (1) and (2), i.e., it provides an effective vehicle for determining the preliminary medical question which would normally by beyond the competence of the local board. The local board's fact-finding responsibility is not usurped, because part (3) of the medical certificate as defined in § 6(3)(a) supplies necessary medical fact without which the local board (or the Appeal Board) could not find the ultimate fact of causal connection. 'The certification by the medical panel that this incident might have been the cause of the permanent disability is not decisive of the ultimate fact of causal connection. It is 'in the nature of evidence before the local retirement board.'

See also Kelley v. Contributory Retirement Appeal Bd., 341 Mass. 611, 614, 171 N.E.2d 277 (1961); Retirement Bd. of Brookline v. Contributory Retirement Appeal Bd., 33 Mass.App.Ct. 478, 479-481, 601 N.E.2d 481, 484 - 484 (1992)("The medical panel's certification that the claimant's disability might be causally related to the February, 1985, injury "is not conclusive of the ultimate fact of causal connection but stands only as some evidence on the issue.... The final determination in this case whether causation was proved was reserved to [CRAB], based on the facts found and all the underlying evidence, including both the medical and non-medical facts."); Malden Retirement Bd. v. Contributory Retirement Appeal Bd., 1 Mass.App.Ct. 420, 424-425, 298 N.E.2d 902, 905 (1973); Lisbon v. Contributory Retirement Appeal Bd., 41 Mass.App.Ct. 246, 253-254, 670 N.E.2d 392, 398 - 399 (1996)("The final determination ... whether causation was proved [is] reserved to [CRAB], based on the facts found and all the underlying evidence, including both the medical and non-medical facts." Blanchette, supra. See also Kelley v. Contributory Retirement Appeal Bd., 341 Mass. 611, 616, 171 N.E.2d 277 (1961). The existence of such an affirmative certification is not in itself a basis for concluding that an applicant has satisfied his burden of proving the causal connection between his disability and a work-related accident or incident, see id. at 614, 171 N.E.2d 277; Wakefield Contributory Retirement Bd. v. Contributory Retirement Appeal Bd., 352 Mass. 499, 502-503, 226 N.E.2d 245 (1967); Shrewsbury Retirement Bd. v. Contributory Retirement Appeal Bd., 5 Mass.App.Ct. 379, 381, 363 N.E.2d 299 (1977), particularly in light of "the strict causation standard imposed by [G.L. c. 32].")
Based primarily on the medical records and medical panel reports, I have found that Mr. Leroux suffered a disc herniation at L.4-L.5 before the incident that occurred on November 27, 2003 and that his disability is due to the natural progression of that pre-existing condition. Finding of Fact 14. I have further found that the incident of November 27, 2003 did not substantially aggravate his pre-existing condition or accelerate his disability. Finding of Fact 15. Based on these findings, I conclude that Mr. Leroux is not entitled to accidental disability retirement pursuant to § 7 of Chapter 32.


SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

/s/ Richard C. Heidlage
Acting Chief Administrative Magistrate

Dated: January 15, 2010