COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Edward Gordon,

Petitioner

v. Docket No. CR-07-188

Springfield Retirement Board,

Respondent

Appearance for Petitioner:

Katherine Lamondia-Wrinkle, Esq.

Law Offices of Thomas Libbos, P.C.
175 State Street, 5th Floor
Springfield, MA 01103

Appearance for Respondent:

Alfredo A. Vivenzio, Esq.

Scibelli & Vivenzio, P.C.
1120 Main Street
Springfield, MA 01103

Administrative Magistrate:

Sarah H. Luick, Esq.

DECISION

Pursuant to G.L.c.32, §16(4), the Petitioner, Edward Gordon, is appealing the March 1, 2007 decision of the Respondent, Springfield Retirement Board, denying his request for accidental disability benefits. (Ex. 12) The appeal was timely filed. (Ex. 13) The Petitioner decided to waive his hearing pursuant to 801 CMR 1.01(10)(c), and had the assent of the Respondent. ("A") The case was assigned to this Administrative Magistrate, and the parties were sent a letter of April 1, 2007 seeking various underlying documents. The filings were due July 2, 2007. ("B") The parties sought further time, and the record closed September 2, 2007.

Various documents are in evidence. (Exs. 1 - 13) The parties entered into some stipulations which are included in each party's memorandum. ("C") The parties' compilation of documents with their exhibit numbering was used.

They are:

Ex. 1 - Application for Accidental Disability Retirement.

Ex. 2 - Physician Statement and report from offices of Dr. Francis
Murray of 6/7/06.

Ex. 3 - Employer Information including: Involuntary Application for Accidental
Disability Retirement of Edward Gordon; and, various notice of injury
forms covering 9/20/91 through 4/22/05 along with related absence
authorizations, physician notes, and chiropractor notes.

Ex. 4 - Job Description for Journeyman Plumber.

Ex. 5 - Employer First Report of Injury forms for 2/24/04; 3/24/05; and, 4/21/05.

Ex. 6 - Request for Medical Panel Appointment with names of treating
physicians.

Ex. 7 - Certificate and Report of Medical Panel.

Ex. 8 - Medical information

A. Office notes of Community Chiropractic 10/14/99 - 8/11/06.
B. Office notes of Titus, Clarke, Hansen & Ruark 11/10/99 - 9/30/05.
C. Office notes of Weldon Rehabilitation 3/10/04 - 5/10/04.
D. Office notes from offices of Dr. Francis Murray 4/2/04 - 5/26/06.
E. CT Scan 3/25/04.
F. Office notes of Dr. Thomas Kaye 4/8/04 - 5/7/04.
G. Office notes of Weldon Rehabilitation 5/5/05 - 7/6/05.
H. Office note from offices of Dr. Francis Murray 6/7/06.

Ex. 9 - Report of Dr. Marc Linson 11/15/06.

Ex.10 - Notice of Springfield Retirement Board meeting of 2/14/07.

Ex.11 - Mr. Gordon's letter in support of his claim to Springfield Retirement
Board 2/22/07.

Ex. 12 - Notice of denial vote of Springfield Retirement Board 3/1/07.

Ex. 13 - Mr. Gordon's letter of appeal.

FINDINGS OF FACT

1. Edward Gordon, d.o.b. 3/12/47, has been a member of the Plumbers Union
from 1968. He worked 1973-1977 for the City of Springfield, left that job, and resumed work with the City of Springfield as a Journeyman Plumber in March 1991. ("C". Exs. 1, 3 & 4)

2. Mr. Gordon underwent a lumbar laminectomy at L5-S1 in or around 1985.
This followed a work connected injury. ("A". Exs. 8 & 9)

3. The Journeyman Plumber job requires holding a valid Journeyman
Plumber License from Massachusetts. (Ex. 4) The work involves, Skilled plumbing work … in the Department of Public Buildings … installing, altering, and repairing
water, gas, and sewage disposal systems, equipment, appliances, and fixtures in municipal buildings … in accordance with municipal plumbing codes and standard trade practices with inspection during process and upon completion … instructions … are accompanied by sketches and drawings … Supervision is exercised over an assigned helper. (Ex. 4)

The Journeyman Plumber must have "knowledge of the standard practices, materials, tools, equipment, processes, and techniques of the plumbing trade." (Ex. 4)

4. The following are examples of tasks Mr. Gordon performed: Installing water heaters (400-500 lbs.); repairing and removing pumps; removing fixtures; repairing and replacing drainage, water, gas piping; plug drain lines; emergency calls; [and,] demolish walls, ceilings to get at pipes. (Ex. 1)

The Journeyman Plumber also:

Installs new plumbing such as pipes, valves, drains,
basins, tubs, faucets, heaters, lavatories, sinks, toilet
facilities, bubblers, coolers, showers, sterilizers, roof
drains, tanks, and specialized hospital, dental, kitchen,
and laboratory plumbing. (Ex. 1)

5. Throughout his Journeyman Plumber work, Mr. Gordon suffered numerous injuries while performing his job assignments. He reported these injuries to his employer and at times lost time from work. (Ex. 3) These injuries included the following:

9/21/91 - hand injury.
7/20/92 - eye injury.
1/8/93 - back injury.
3/9/93 - left knee injury.
4/24/93 - right side injury.
10/12/93 - knee injury.
12/29/93 - hand injury.
7/8/94 - back injury.
10/17/94 - eye injury.
10/24/94 - head injury.
5/2/96 - head injury.
11/7/96 - foot injury.
3/8/99 - back injury.
4/21/99 - head injury.
10/5/99 - back injury.
10/14/99 - knee injury.
10/24/99 - head injury.
11/19/99 - neck injury.
1/18/00 - burn injury.
3/14/00 - groin injury. (Ex. 3)

6. On February 24, 2004 Mr. Gordon hurt his back "replacing closet flanges on water closets." He had "to bend and lift fixtures." He experienced "sharp and burning pain in the lower back and legs." He reported the injury to his employer. He received workers compensation for time out from work. (Exs. 5 & 8)

7. On March 24, 2005, Mr. Gordon was doing "repairs to water lines and flush valves." He had to twist and climb "over and under water-drain-vent lines." He developed pain in his low back and legs. He reported the incident to his employer. He received workers compensation for time lost from work. (Ex. 5 & 8)

8. On April 21, 2005, Mr. Gordon was performing an emergency repair on a water leak in a ceiling. He had to smash the ceiling from a ladder to find the location of the leak. He experienced pain in his back and legs. He reported the incidents to his employer. He received workers compensation for time lost from work. (Exs. 5 & 8)

9. Mr. Gordon treated with a chiropractor between October 15, 1999 and August 11, 2006. In October 1999, he was treated for his right knee. He also wore a knee support brace. He treated in October 2000 after a car accident. He suffered whiplash and low back pain. By February 2001, he was doing better "with only sporadic episodes of lumbosacral pain." But, in April 2001, he was treated for "increasing lumbosacral pain with radiation." In May 2001, the back pain was "fairly frequent." He was warned on May 9, 2001 to "be cautious" at work due to the physical demands of his job. On October 3, 2001, he was treated because "he severely aggravated his low back condition." At a November 14, 2001 session, he reported "that with normal physical activity and his employment demands, he has continuously re-aggravated his lower back condition." At a November 30, 2001 session, he reported "pain with physical activities such as lifting and bending." At a March 11, 2002 session, he reported "increasing thoracolumbar and lumbosacral pain." At a May 22, 2002 session he "had an acute exacerbation of lumbosacral pain with radiation to the right sacral base with his employment demands and activities." At a January 6, 2003 session, he had right shoulder pain which continued into May 2003. At a June 23, 2003 session he had "increasing lumbosacral pain." He had this same complaint at an August 4, 2003 session due to "normal employment demands." (Ex. 8)

10. Following the February 24, 2004 injury, Mr. Gordon resumed regular chiropractic treatments. He complained on March 12, 2004 of "pain and discomfort in the lower back and into the left hip and gluteal area." By April 28, 2004, he reported his lower back was better with the potential to return to work light duties, but he again reported increased back pain by a May 10, 2004 session. At a June 11, 2004 session, he was having "slow improvement with decreasing pain throughout his lower back area." By August 2004, he was also having right foot numbness. By a November 17, 2004 session, he was "very good with decreasing episodes of lower back pain as well as diminishing severity." At a February 2, 2005 session, he was "doing good with no radiation, however, continues with a dull achiness throughout the lower back region." By an April 4, 2005 session, he had "aggravated his lower back condition lifting a large furnace door." Although he had improved by a June 8, 2005 session, he had suffered "an aggravation" by a June 15, 2005 session. At a December 14, 2005 session, his lower back condition was "fairly stable," but at a January 4, 2006 session he had "increasing aggravation and exacerbation of the lower back area." At an April 6, 2006 session, he had "re-aggravated his lower back condition" from "lifting trash bags at home." At an August 11, 2006 session he reported he was better due to engaging in no activities that aggravated his low back. (Ex. 8)

11. Mr. Gordon had arthroscopic right knee surgery in 1988 and 1989. By November 1999, he had osteoarthritis in the right knee. In September 2000, he had Cortisone and Lidocaine injections for his right thumb. He had an injection to his right shoulder in January 2003. (Ex. 8)

12. On March 25, 2004, Mr. Gordon has a CT Scan of the lumbar spine that showed:

1. Prominent left lateral spur … may encroach upon the left L-3 nerve root within the foramen.

2. Mild disc bulge L4-5.

3. Degenerated L5-S1 disc with mild disc bulge and herniation which abuts but does not definitely displace the right S1 nerve root and postoperative changes on the right. …. (Ex. 8)

13. Dr. Thomas S. Kaye, a neurosurgeon, evaluated Mr. Gordon on April 8, 2004. Dr. Kaye detected "a reasonable range of motion to the back … no evidence of atrophy or fasciculations." Dr. Kaye opined that Mr. Gordon "does not require further aggressive treatments such as epidural steroid management or operative management … appears to be resolving a bout of lumbar radiculopathy … prognosis is overall very good." Mr. Gordon had been out from work, and a functional capacity evaluation was recommended. Mr. Gordon underwent physical therapy treatments in May and June 2005. (Ex. 8)

14. In a June 7, 2006 report on Mr. Gordon's condition, Laura O'Donnell, R.N., M.S., ANP, explained her knowledge of his back condition. She had "cared for him" for various medical issues. She noted his "history of disc disease … lumbar laminectomy … in the 1980's." She noted: [B]ack pain was stable until the acute onset of low back pain with lower extremity neuropathy while lifting at work on 02-24-04. Neurological evaluation and CT of the lumbar spine at that time revealed a bone spur encroaching upon the left L3 nerve root, degenerated L5-S1 nerve root on the right. (Ex. 2)

She noted Mr. Gordon's "symptoms have been aggravated by his work responsibilities which include lifting, bending, twisting and other activities that aggravate his condition." She noted he has limited treatment options to get better. She opined his condition was permanent and likely to worsen with time. She concluded his current back condition "was likely brought on by chronic overuse of the lower back while carrying out job functions … February 24, 2004 … lifting brought his condition to its present, worsened level." (Ex. 2)

15. Dr. Marc A. Linson, an orthopedic surgeon, evaluated Mr. Gordon for workers compensation on November 15, 2006. He understood following the February 2004 injury that Mr. Gordon was out from work receiving physical therapy and chiropractic treatments until January 2005 when he returned to do light duty. He understood he then developed "increasing [back] pain … and then had to stop work in May 2005 and has not worked since." Dr. Linson understood Mr. Gordon's main complaint is "low back pain, bilateral leg pain, pain radiating to the right groin." Dr. Linson was aware Mr. Gordon had a hernia repair. He was aware of the 1985 back surgery. He understood Mr. Gordon experiences pain upon sitting and standing too long, and engages in "very limited" activities at home. He had the results of a March 2004 lumbar CT Scan showing "bulging at L3-4 and L4-5 discs and post operative changes." Dr. Linson concluded that Mr. Gordon had reached,
a medical end result causally related to the alleged work injury of February 2004 … heavy activities [at work] … seems to have aggravated his pre-existing degenerative back condition … work injury of February 2004 is a major, but not necessarily predominant or exclusive cause of his ongoing back trouble … rather the predominant cause … is a degenerative condition of his lumbar spine which was probably initiated from the 1985 work injury and from which he never fully recovered to this day. (Ex. 9)

Dr. Linson found Mr. Gordon able to sustain sedentary work that avoids prolonged standing, sitting or walking, along with an ability to change positions. He concluded he should avoid bending and awkward positions, as well as lifting over twenty pounds. (Ex. 9)

16. In September 2005, Mr. Gordon's employer filed for his involuntary accidental disability retirement. His back condition was found to prevent him from continued work as a plumber. Reliance was placed on treatment evaluations of his back condition from May 2005, and on his prior history of back problems. (Ex. 3)

17. Mr. Gordon filed his own application for accidental disability retirement benefits in and around June 2006 based on the February 24, 2004 back injury, the March 24, 2005 back re-injury, and the April 21, 2005 back re-injury. He was receiving workers compensation at the time. Laura O'Donnell, R.N., M.S., ANP supported his claim.
(Exs. 1 & 2)

18. A Medical Panel was convened on November 17, 2006 with Drs. Steven A. Silver and Victor A. Conforti, both orthopedists; and, Dr. St. Jepan Kereshi, a neurologist. The Panel were unanimous in finding no disability. The Panel had knowledge of Mr. Gordon's job as a plumber and that he last worked in May 2005. They understood his chief complaint was "pain in the low back going down both legs, more on the right side." They were aware of his 1985 lower back surgery at L5-S1 and his subsequent intermittent chiropractic treatments. They understood: "If he would bend or lift heavy, he would be sore for awhile and then went for therapy and then was returned to work." The Panel had knowledge of the February 24, 2004 injury from "pushing heavy objects … pain in the low back got worse … down both legs … worse on the left … also some problem with his knees." The Panel understood Mr. Gordon sought chiropractic treatments and was referred to Dr. Kaye, a neurosurgeon. The Panel were aware that a CT Scan of the lower back revealed "some degenerative changes … with encroachment over the L3 nerve root." They were aware Mr. Gordon had physical therapy treatments in May 2006. They were aware of his hernia condition. The Panel also had knowledge of Mr. Gordon's symptoms of hip, back of the leg, knee, thigh and foot discomfort, and that "he is limiting his activities." The Panel gave a physical examination. ("C". Ex. 7)

19. The Panel diagnosed, "chronic low back pain from degenerative disc disease, status post surgery at the L5-S1 level." The Panel reviewed Mr. Gordon's plumber job description and his medical records. They noted his lack of evidence "of focal atrophy or motor weakness as well as subjective sensory loss … physiologically incompatible with nerve root distribution." The Panel found significant his ability "to work for a considerable time after the surgery." They concluded there is no "change in the clinical condition to substantiate an inability to work." They also found nothing in the job description to involve "any lifting requirements ... which could possibly be a hindrance of employment." (Ex. 7)

20. The Springfield Retirement Board voted to deny accidental disability retirement benefits and Mr. Gordon appealed. ("C". Exs. 12 & 13)

Conclusion

The findings show that Mr. Gordon while employed as a Journeyman Plumber for the City of Springfield, had numerous reported injuries on the job, and that he engaged in many chiropractic treatments for symptom relief for his back condition. He came to this job with a post-operative lumbar laminectomy back condition. The findings show that he would experience low back pain upon performing tasks such as bending or twisting his body in awkward positions, as well as from doing heavy lifting.

Since Mr. Gordon did not provide a Physician's Statement form that was from a physician, there is some question why a Medical Panel was convened. On Exhibit 2, there is reference to Francis Murray, M.D., but the person who seems to have addressed the questions raised in the Physician's Statement is Laura O'Donnell, R.N., M.S., ANP. She is part of Dr. Murray's medical office, but, Dr. Murray should have provided the information, not Nurse O'Donnell. See, 840 CMR 10.06(1)(b) & (g)1. Nevertheless, a Medical Panel was convened, and the case proceeded to a decision by the Respondent Board.

The Medical Panel found significant their understanding that Mr. Gordon's job does not require him to engage in any heavy lifting or really any lifting activities. This is not a fair and accurate assessment of what he had to be able to do as a plumber for the City of Springfield. The findings show, consistent with the job description information in the record, that he was required to engage in activities that could be exertional such as breaking open ceilings or walls to reach pipes and installing heavy furnaces. He also had to bend and twist his body in awkward ways to perform plumbing work which was more than just for residential plumbing needs, but also for specialized and commercial building plumbing needs. A fair reading of the numerous reports of injury forms over the years and including the last three injuries he relies upon to support his application for accidental disability retirement, show that his work did aggravate his pre-existing back condition from the 1985 back surgery, and that over time he experienced frequent significant exacerbations of back pain that prevented him from working on a sustained basis. The CT Scan and other evaluations show this. The chiropractic records make clear that he would aggravate his back performing plumbing work. He would then rest, have therapies, and then participate again in activities that often led to re-aggravations of the back condition while engaged in his plumbing work. By the time Mr. Gordon stopped working, the record shows his back condition was quite vulnerable to aggravations due to even basic plumbing tasks. This is why his employer first sought an involuntary retirement. Mr. Gordon only filed for retirement on his own following his employer's application. The evidence does not show someone exaggerating his symptoms. He is very vulnerable to back pain which can keep him out of work for periods of time, and his job duties can trigger this back pain.

The Panel only minimally refer to the fact that Mr. Gordon would lose time from work due to aggravations of his back from performing plumbing work. This happened often, and the Panel do not address the significance of the frequency of his bouts of aggravated back pain following plumbing tasks. They note that his clinical picture has not significantly changed with time while not addressing whether his clinical profile allows him to engage in the kind of plumbing work he needs to do on any kind of a sustained basis. The Panel do not address why the kinds of activities he engaged in on February 24, 2004, on March 24, 2005, and on April 21, 2005, could have produced enough of an exacerbation of back pain that he had to stop working all together. They do not explain why that does not show a disability.

This Medical Panel failed to provide a proper evaluation of the existence on a disability in light of the job description information, the account of Mr. Gordon's many back injuries, and in light of what the chiropractic and other medical evaluations and tests have revealed about his back condition. They have failed to give consideration to all the pertinent medical and non-medical facts. Malden Retirement Board v. CRAB, 1 Mass.App.Ct. 420 ( 1973) The Panel report is not understandable in terms of sufficient support for their determination of no disability. Kelley v. CRAB, 341 Mass. 611 (1961) The standard to employ as to the existence of a disability is the inability to perform on a sustained basis, the essential duties of the job. G.L.c.32, s.7(1). This Panel evaluation does not adequately address this standard.

For these reasons, the case is remanded for the convening of a new Medical Panel once Mr. Gordon provides a Physician's Statement in support of his claim that is produced by an M.D. physician as required.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS


Sarah H. Luick, Esq.
Administrative Magistrate


DATED: February 5, 2008


This information is provided by the Division of Administrative Law Appeals.