COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Fay E. Norris,

Petitioner

v. Docket No. CR-07-675

Teachers' Retirement Board,


Respondent


Appearance for Petitioner:

Thomas F. Gibson, Esq.

2400 Massachusetts Avenue
Cambridge, MA 02140

Appearance for Respondent:

Aaron E. Morrison, Esq.

Teachers' Retirement System
One Charles Park
Cambridge, MA 02142

Administrative Magistrate:

Sarah H. Luick, Esq.


DECISION


Pursuant to G. L. c. 32, § 16(4), the Petitioner, Fay E. Norris, is appealing the August 29, 2007 decision of the Respondent, Teachers' Retirement System, denying her request for accidental disability retirement benefits based on a lack of proof that her claimed injury was sustained while she was in the performance of her duties as required by G. L. c.32, § 7(1). (Ex. 2) The appeal was timely filed. (Ex. 1) A hearing was held December 4, 2007, at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, 4th Floor, Boston, MA 02114, pursuant to
G. L. c. 7, § 4H.


Various documents are in evidence. (Exs. 1 - 19) One tape was used. The parties entered into stipulations of fact, and filed pre-hearing memoranda. ("A") Briefs were filed by January 24, 2008 when the record closed.

FINDINGS OF FACT

1. Fay E. Norris, d.o.b. 2/24/47, worked as an kindergarten and elementary school teacher in the Waltham Public Schools, last working as a kindergarten teacher at the Bright School. Her service was from 1970 through 1977, and then from 1985 until her effective date of superannuation retirement of July 1, 2005. ("A". Ex. 5. Testimony)


2. The 2001-2002 school year had just started when Ms. Norris was asked to and agreed to attend special training on how to use an epinephrine auto-injector pen, an Epi-Pen, to administer medication immediately to students at the Bright School if any student suffered a severe allergic reaction. There needed to be at least one teacher at the school who would have this training in addition to the school nurse. She was not paid to have this training. ("A". Ex. 5. Testimony)


3. The regular school day would end for Ms. Norris about 3:00 PM. This special training was scheduled for after school hours at a different school in Waltham, the Plympton School. No special transportation was provided for Ms. Norris to get to the Plympton School on the day of the training. She had to drive her own car over to the school. This was system wide training so she was not going to be the only participant. ("A". Ex. 5. Testimony)


4. The date for the training was September 25, 2001 at 3:30 PM. Ms. Norris left the Bright School alone in her car at about 3:10 PM. It took her about ten to fifteen minutes to reach the Plympton School. Once she arrived, the Plympton School parking lot was full. She followed other drivers who also faced the full parking lot to a nearby City of Waltham athletic field's parking lot. She had been to this athletic field before. She parked her car there, and started to walk to the Plympton School. ("A". Exs. 3 & 5. Testimony)


5. Upon leaving the parking lot, Ms. Norris walked along a sidewalk of Bacon Street to the intersection with Farnsworth Street. She then crossed Bacon Street at the crosswalk there, and then walked along Farnsworth Street to the Plympton School. The weather outside was drizzling. (Exs. 5 & 19. Testimony)


6. Once at the training, there were about thirty attendees, and Ms. Norris found that she was having trouble hearing well. She had a hearing problem. She was able to get one-on-one training from a nurse on just how to use the Epi-Pen. Her training took about thirty-five to forty minutes, but she finished the training early. She thanked the nurse and left the school. She was the first to finish the training. (Exs. 5 & 15. Testimony)


7. Ms. Norris walked down Farnsworth Street to the intersection with Bacon Street in order to use the crosswalk to get across the street and then to walk up Bacon Street to her car to leave for her home. She did not have any obligation or need to return to the Bright School before ending her work day. (Exs. 5 & 19. Testimony)


8. Ms. Norris was alone when she stepped into the crosswalk. At this location Bacon Street was a two lane roadway. One car stopped to let her cross. She then looked to her left and was suddenly hit hard by a car going through the crosswalk. She was thrown into the air. She lost consciousness. Upon regaining consciousness at the scene, she had help from police, fire fighters and paramedics. She was taken to Beth Israel Hospital in Boston from the scene. ("A". Exs. 3 & 5. Testimony)


9. Ms. Norris never returned to work. Her accident was reported to her employer. She received workers' compensation. (Exs. 3 & 5. Testimony)


10. Once at the hospital, Ms. Norris underwent various tests. She had a head CT scan that showed no "acute intracranial hemorrhage or fracture." She was found by CT scan to have "a fracture of the spleen with large amounts of blood in her peritoneum," and underwent a splenectomy. She had "suffered a left tibial fibula fracture," and underwent "an open reduction and internal fixation of her left tib/fib fracture." She had a CT angiogram that did not show a pulmonary embolism. Once discharged on October 1, 2001, she was transferred to the Spaulding Rehabilitation Center for rehabilitation.
(Ex. 16)


11. At the Spaulding Rehabilitation Center, Ms. Norris underwent a "Comprehensive Multidisciplinary Rehabilitation Program." (Ex. 18)


12. Ms. Norris was released after three weeks. She then did home therapies. (Exs. 17 & 18)


13. Before her accident, Ms. Norris had a number of medical conditions she had been evaluated and treated for. She has a progressive hearing loss on the left side which she began evaluation for in and around 1996. She has had some episodes of mild vertigo. On or about August 5, 2002, Ms. Norris was in a car accident and suffered whiplash. She had been wearing a seatbelt. She had left shoulder and neck symptoms, and underwent physical therapy treatments. By December 19, 2004 she was having severe right hip pain and had an MRI with positive findings. She has been treated for heart arrhythmia and for depression. (Exs. 14, 15, 16 & 17)


14. During an April 7, 2005 evaluation by Dr. Byron V. Hartunian, an orthopedic surgeon, Ms. Norris was found to be functioning independently with some continuing symptoms in her left leg, including a limp when walking for more than just a short distance. Dr. Hartunian found her treatment to date had been "proper and reasonable," following "an extremely serious fracture of the left leg." He opined she had reached a medical end point regarding her fractured left leg with a 40% permanent impairment in her left lower extremity and a 16% permanent impairment of her full body. He found her permanently disabled from further kindergarten teaching, with her condition due to the September 25, 2001 accident. He gave a poor prognosis for further improvement. His opinion remained the same through his May 2, 2006 evaluation.
(Ex. 17)


15. Ms. Norris sought accidental disability retirement benefits in April 2006 based on the September 25, 2001 accident. Dr. Hartunian supported her claim. (Exs. 3, 4
& 17)


16. Ms. Norris had Single Physician Medical Panel evaluations in February and March 2007. The Panel physicians were provided with background medical records on Ms. Norris, including the records relating to her accident on September 25, 2001, records about her subsequent treatments, and prior medical records. The Panel physicians were provided with information on the accident. They were provided with job description information. (Exs. 6, 7, 8, 9, 14, 15, 16, 17 & 18)


17. Panel physician, Dr. Richard N. Warnock, an orthopedist, answered his certificate in the affirmative. He understood Ms. Norris was a kindergarten teacher who was hit in a crosswalk by a car and suffered "multiple trauma, including comminuted fractures of the left proximal tibia and fibula." He had knowledge of her splenectomy and of her "closed rodding of a left proximal tibial fracture." He understood she had a progressive rehabilitation program thereafter, and that she had not returned to work. Dr. Warnock was aware of Ms. Norris's current complaints of left leg symptoms. He gave a physical examination. He diagnosed a left tibia and tibula fracture with status post closed rodding. He opined this diagnosis was "causally related to the injury … of September 2[5], 2001 … [and that the] mechanism of injury is clear and documentation support is provided." (Ex. 7)


18. Panel physician, Dr. Steven Sewall, an orthopedist, answered his certificate in the affirmative to the existence of a disability and its possible natural and proximate connection to the September 25, 2001 accident. He answered the permanency question in the negative. He understood Ms. Norris was a kindergarten teacher who was taking training "to give epinephrine shots to children with allergic reactions" on September 25, 2001," when she "was going across a street in front of the Plympton School … was in a crosswalk and was hit by another vehicle." He was aware of her subsequent evaluations and procedures undergone at Beth Israel Deaconess Medical Center including "emergency abdominal surgery to remove her spleen and stabilize her blood pressure," and then "an open reduction and internal fixation of the [left] tibia with an intramedullary nail and two interlocking screws proximally and distally" to address fractures she sustained. He understood she then had rehabilitation therapy. Dr. Sewall was aware of Ms. Norris's current complaints regarding her left leg, and that she had not returned to work. He gave a physical examination. He diagnosed a comminuted fracture of the left tibia, post open reduction and internal fixation. He opined that her current problem was "of hip muscle weakness probably because she didn't get enough therapy or therapy concentrated on her knee and her ankle, and didn't work on her left hip … [which] became weak due to the prolonged immobilization from her lower leg accident." He recommended "an aggressive course of physical therapy concentrating on her hip … would improve significantly over the course of 6 to 8 weeks and could very well recover to the point where she could do all the duties that are required of her as a kindergarten schoolteacher." (Ex. 8)


19. Panel physician, Dr. Dewitt C. Brown, an orthopedist, answered his certificate in the affirmative. He understood Ms. Norris was a kindergarten teacher who as a pedestrian in a crosswalk on September 25, 2001, "was struck on the left leg by a motor vehicle, thrown onto the hood/windshield striking her head, left side, abrasions of left side, left sided trauma and left lower extremity trauma." He understood that she was taken to Beth Israel Hospital where she had a ruptured spleen, had a laparotomy, and then had "an open reduction and internal fixation of a comminuted tibial fracture." He understood she then underwent rehabilitation therapies. He found Ms. Norris was using a cane to walk and that she had "ongoing discomfort associated with her tibia." He gave a physical examination, and diagnosed a concussion, left tibia/fibula fracture, a blunt abdominal trauma and a ruptured spleen. He opined Ms. Norris suffered "significant injuries" on September 25, 2001 which now prevent her from returning to being a kindergarten teacher despite "appropriate" treatments. (Ex. 9)


20. In reaction to the Panel physician evaluations, the Teachers' Retirement System sought clarifications from the Panel physicians. They were presented with specific questions to address including; whether Ms. Norris had undergone sufficient treatments to be able to find her left leg condition to be permanent, identifying the kinds of work duties in her job description that she can no longer carry out, and the impact if any of a later August 5, 2002 whiplash car injury. (Ex. 10)


21. Dr. Warnock responded that Ms. Norris's current condition was "not likely to change substantially in the foreseeable future," even with further treatments. He opined that she "is physically incapable of performing the essential duties of her job." He found she "was unable to remain on her feet for 6 to 8 hours, which would be the requirement of her job as a kindergarten teacher, due to the residual of a substantially fractured lower leg." He explained that he had not addressed a cervical condition that might have been present from a prior whiplash car accident. (Ex. 11)


22. Dr. Sewall responded that Ms. Norris's "limitations are related to weakness of her left hip secondary to her comminuted fracture of her left tibia." He found her "unable to lift on a regular basis greater than 20 pounds … unable to climb stairs regularly, and … unable to squat and kneel as one would have to do in running a kindergarten class." He explained that he had not found a prior neck problem was contributing to her left leg disability. (Ex. 12)


23. Dr. Brown responded that Ms. Norris was experiencing "ongoing discomfort associated with her left lower extremity with prolonged standing and difficulty with ambulation and requires an assistive device for ambulation … specific limitations which prevent her from carrying out her duties as a kindergarten teacher." Dr. Brown explained that these "limitations are subsequent to a rather significant accident which occurred on September 25, 2001 when she was on duty at a crosswalk when she was stuck by a motor vehicle." He opined that "her condition will not improve further with further rehabilitation treatment, and she remains with residual disability." He opined in regard to her prior car accident and her cervical complaints that these problems had "resolved by the time I examined her." (Ex. 13)


24. Ms. Norris's duties as a kindergarten and elementary school teacher require an ability to exert up to twenty pounds of force at least occasionally and ten pounds frequently. There is significant walking and standing involved. The teacher has to go up and down stairs at least occasionally, and has to be able to monitor students at recess, in the lunchroom, and during fire drills. The work also involves turning, twisting, stooping, squatting, and reaching activities. (Exs. 3 & 5)


25. The Teachers' Retirement System denied Ms. Norris's claim for accidental disability without reaching the merits of the claim, concluding that the September 25, 2001 accident did not occur while she was in the performance of a work duty. Ms. Norris filed a timely appeal. ("A". Exs. 1 & 2)

Conclusion

In the Performance of Duties

It is a threshold requirement of G. L. c. 32, § 7(1) that to be entitled to accidental disability retirement benefits, the claimed accident or hazard undergone must be suffered while the member was in the performance of her duties. Although Ms. Norris found herself crossing Bacon Street in the crosswalk on September 25, 2001 because she had just attended training her school superiors wanted her to have, she had ended that training and was walking back to her car to go home when she was struck and injured by a car. The parties appreciate the issue to be decided in this regard to be whether on the particular facts of her case, Ms. Norris satisfies the necessary statutory criteria. I conclude the case law does not permit her being able to satisfy this threshold criteria.


Namvar v. Contributory Retirement Appeal Board, 422 Mass. 1004 (1996) addressed the situation of a professor who was walking in the school hallway to her office to hold office hours for students after having had lunch in the school cafeteria. She slipped and fell in the hallway. She was found by the Court at the time she suffered her fall not to have been in the performance of her duties. She had not gone from a work duty in the cafeteria, had no work duty while walking to her office, and had not yet resumed her work duties in her office at the time she fell. Id. at 1005. This interpretation of G. L. c. 32, § 7(1) was endorsed in the later case of Richard v. Worcester Retirement Board, 431 Mass. 163, 166 (2000). In Richard a school nurse was injured during her commute to reach her first required work site. Ms. Richard had permission to not first check into her office before reaching her first job assignment for the day. The Court, citing Namvar, found that she was not in the performance of her duties under Section 7(1)'s strict criteria, so that her injury was not compensable. Id. at 165-166.


Ms. Norris argues that the circumstances that led her to be in the crosswalk when she was hit were sufficiently connected to her job performance to satisfy this requirement. She notes that her employer had assigned her this training at the Plympton School as an additional employment obligation, and that she had to use her personal car to get to the training. She had to obtain parking on her own as well. She contends she was still at work and in the performance of her duties when she was struck by the car, because getting back to her car after the training was just as necessary as driving to the Plympton School area and parking her car there. She argues that she had a need to use the crosswalk to both get to the training and back to her car, so that the harm that came to her in using the crosswalk is compensable.


This argument fails since it is clear the training ended and Ms. Norris was simply going back to her car to drive home when she was struck in the crosswalk. No evidence shows she had any employment obligation to return in her car to the Bright School before she was able to conclude her work day. There is no fair reading of the prevailing case law to permit finding the accident she suffered to be while in the performance of her duties under Section 7(1) criteria.

Merits


But for the issue regarding not being in the performance of duties at the time of the September 25, 2001 accident, Ms. Norris would have met her burden of proof to support an award of accidental disability retirement benefits. Wakefield Retirement Board v. CRAB, 352 Mass. 499 (1967). The Panel evaluations resulted in a clear majority of the physicians finding a total and permanent disability that might be the natural and proximate result of the September 25, 2001 accident. Campbell v. CRAB, 17 Mass.App.Ct. 1018 (1984). The Panel evaluations reflect consideration of the pertinent factual information and use by the Panel physicians of the proper standards of evaluation. Malden Retirement Board v. CRAB, 1 Mass. App. Ct. 420 ( 1973). The opinion of Dr. Hartunian amply supports ultimate causation resting with this accident. The job description sets forth essential duties involving physical requirements that the medical evidence shows Ms. Norris cannot carry out on a sustained basis.
For the foregoing reasons the decision of the Respondent Board is affirmed.

SO ORDERED.


DIVISION OF ADMINISTRATIVE LAW APPEALS

Sarah H. Luick, Esq.
Administrative Magistrate


DATED: April 4, 2008


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