COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

David Gauthier,

Petitioner

v. Docket No. CR-07-355

Springfield Retirement Board,

Respondent

Appearance for Petitioner:

John Connor, Esq.

Moriarty and Connor, LLC
101 State Street, Suite 501
Springfield, MA 01103

Appearance for Respondent:

Alfredo Vivenzio, Esq.

Schibelli and Vivenzio, P.C.
1120 Main Street
Springfield, MA 01103

Administrative Magistrate:

Sarah H. Luick, Esq.


SUMMARY OF DECISION

Respondent's decision to deny application for accidental disability retirement benefits without convening a medical panel is reversed. Petitioner's application supported by a valid physician statement meets threshold requirements for convening a medical panel.

DECISION

Pursuant to G.L. c. 32, § 16(4), the Petitioner, David Gauthier, is appealing the April 27, 2007 decision of the Respondent, Springfield Retirement Board, denying his request for accidental disability benefits. (Ex. 1) The appeal was timely filed. (Ex. 2) A hearing was scheduled for May 27, 2008, but prior to the hearing the parties filed a Joint Motion to Waive Hearing and submit the case on a documentary record with briefs as per 801 CMR 1.01(10)(c). The Motion was allowed, and the record was open until July 14, 2008 for receipt of all filings. ("D")

EXHIBITS

1. April 27, 2007 letter of decision of Springfield Retirement Board.

2. April 30, 2007 letter of appeal, received May 7, 2007.

3. December 19, 2006 Application of Mr. Gauthier for accidental disability retirement benefits.

4. December 4, 2006 Physician's Statement of Dr. R. Scott Cowan, orthopedic surgeon, in support of Mr. Gauthier's Application with his report of December 1, 2006.

5. Job Description for "Welder."

6. December 29, 2006 report of Dr. Robert I. Moskowitz.

The parties also entered into Stipulations of Fact. ("A") Both parties filed
briefs. (Petitioner's is "B" and Respondent's is "C".)

FINDINGS OF FACT

1. David Gauthier, d.o.b. 1/12/58, has been employed as a Welder for the City of Springfield from November 3, 1987. ("A". Ex. 3.)

2. Mr. Gauthier's duties as a Welder involve exertional skilled tradesman tasks. "Considerable experience as a journeyman welder" is required for the job of working "in cutting, resurfacing and welding with either acetylene or electrical equipment." The welding tasks include "heating, welding, cutting, brazing, and resurfacing ferrous and non-ferrous metals with either acetylene or electrical welding equipment," with particular assignments that could be "supplemented by blueprints or sketches." The welder is required to have sufficient awareness and understanding "of the occupational hazards and appropriate safety measures" involved in performing his duties, along with a sufficient knowledge about and ability to use the tools and equipment involved in his job, "to maintain and make minor repairs to acetylene and electrical welding equipment," and to have "knowledge of the properties of various ferrous and non-ferrous metals and their application to welding." Examples of the welding work tasks include working with "sections of pipe and fittings, crankcase, radiators, tanks, brackets, beams, structural members, and other equipment and materials." The welder "repairs equipment such as trucks, tractors, snowloaders and grader frames, snow plows, dump bodies, packer blades and related equipment." The welder also "moves equipment bodies from chassis to chassis and makes necessary changes." ("A". Exs. 5.)

3. On May 22, 2003, Mr. Gauthier was in the process of stepping down from a trash truck when he slipped off the access ladder on the truck and felt a severe pull in his left shoulder and neck area. He had been repairing the wall and floor of the trash truck. He filed a report of injury with his employer about the incident. ("A". Ex. 3.)

4. Mr. Gauthier did not report to work the next day, and sought medical attention. He never returned to work following the injury. ("A". Ex. 3.)

5. Starting in and around September 2003, as a result of physical therapy treatments and medical assessments, Mr. Gauthier was diagnosed with an impingement syndrome in his left shoulder and cervical spondylosis. ("A". Ex. 6.)
6. Mr. Gauthier had an MRI of the left shoulder with a finding that was benign. Thereafter, on October 13, 2003, he had a cervical MRI showing the following:
C5-6 … prominent endplate degenerative spur formation both more pronounced to the left causing … marked left foraminal stenosis … C6-7 … prominent endplate degenerative spur formation causing flattening of the dural sac … 1. Mild disc bulge and spur formation C3-4 and C4-5 without cord compression or nerve root compression. 2. Mild broad based disc herniation and spur formation at C5-6 causing flattening of dural sac abutting but not definitely compressing the anterior cord, mild right and marked left sided foraminal stenosis with probably encroachment upon left C6 nerve root. 3. Mild disc bulge and/or herniation and spur formation at C6-7 causing flattening of the dural sac with cord compression and bilateral foraminal stenosis with probably encroachment upon C7 nerve roots. 4. Cervical muscle spasm. (Ex. 6)

7. Due to the cervical MRI findings, Mr. Gauthier was referred to Dr. R. Scott Cowan, an orthopedic surgeon. At a November 6, 2003 physical examination by Dr. Cowan's physician assistant, Mr. Gauthier showed a "reduced range of motion of the neck with pain with extension and lateral bend … no focal neurologic deficits … and his reflexes were intact." Dr. Cowan understood that Mr. Gauthier was not taking any pain medication. He diagnosed Mr. Gauthier with "a cervical disk herniation [at the] C5-6 and C6-7 levels." He prescribed epidural cortisone injections. These did not lead to any lasting improvement. ("A". Ex. 4.)

8. Mr. Gauthier underwent an anterior diskectomy and fusion procedure with Dr. Cowan on September 27, 2004. The fusion was "from C5-7 with allograft and plate fixation." Thereafter, Mr. Gauthier continued to experience neck pain although his left arm pain "was reduced." ("A". Ex. 4.)

9. When Dr. Cowan evaluated Mr. Gauthier on September 15, 2006, he complained of "some persistent neck pain issues." From the physical examination done Mr. Gauthier showed "reduced range of motion of the neck to about 60 percent of normal," but the left "shoulder exam was benign." A "neurologic exam was within normal limits." (Ex. 4)

10. On December 1, 2006, Dr. Cowan opined that Mr. Gauthier was "incapacitated and disabled from his job as a welder." He found he "sustained a whiplash-type of trauma to his neck" on May 22, 2003 during the incident at work. He concluded that this injury along with his "pre-existent degenerative disk disease" were the causes of his incapacity. He concluded the "medications, physical therapy, injections, and eventual surgical management were all as a result of the work injury sustained." (Ex. 4)

11. Before the surgery on August 2004, Dr. Cowan was aware that Mr. Gauthier was on Methadone. Mr. Gauthier had a history of drug and alcohol abuse from at least 1999. This substance abuse history was known to his treating physician, Dr. Thau and by those treating him for his post May 22, 2003 work incident. (Exs. 4 & 6.)

12. In connection with the time he was out from work following the May 22, 2003 incident, Mr. Gauthier received G. L. c. 152, § 34 total incapacity workers' compensation benefits covering 156 weeks. Thereafter, he received partial incapacity workers' compensation benefits. He has been found to be not suitable for vocational rehabilitation as a result of his medical condition. ("A". Ex. 3.)

13. On or about December 19, 2006, Mr. Gauthier filed for accidental disability retirement benefits based on the May 22, 2003 incident at work. Dr. Cowan supported the application. In his letter in support, Dr. Cowan did not mention the history of substance abuse or the taking of Methadone around the time of the cervical spine surgery. Dr. Cowan answered in the affirmative to the questions posed on the Physician's Statement that Mr. Gauthier was totally and permanently disabled from carrying out the essential duties of his welder job and that the May 22, 2003 incident at work might be the natural and proximate cause of this disability. ("A". Exs. 3, 4 & 6.)

14. Thereafter, on December 29, 2006, Mr. Gauthier was evaluated by Dr. Robert I. Moskowitz for an independent medical evaluation. Dr. Moskowitz disagreed with the assessment of Dr. Cowan and concluded the May 22, 2003 work incident did not have any lasting impact on Mr. Gauthier's left shoulder or cervical spine condition. He did not find from his review of the medical records that the neck was an area of complaint for Mr. Gauthier following this incident until about four months after it, and he did not find the mechanics of how a pull sustained in Mr. Gauthier's left arm and shoulder could have worsened his degenerative cervical spine condition. He did not find the incident could be responsible for the current state of his cervical condition. He did not find that the incident aggravated the pre-existing cervical spine condition, or that it produced a lasting left shoulder condition as confirmed by the benign results of the left shoulder MRI. In his review of Mr. Gauthier's medical records following the May 22, 2003 incident, Dr. Moskowitz found Mr. Gauthier had varying and inconsistent complaints of pain, including of radiating pain, at the various medical and physical therapy visits he went to within short time spans. He found a history of depression for which he had not been treated. He found a history of drug and alcohol abuse, including being on Methadone at the time of the work incident and at the time of the cervical spine surgery. Against these findings, Dr. Moskowitz disagreed with Dr. Cowan and opined that the cervical spine surgery should not have been a recommended procedure. He found Mr. Gauthier able to return to work, and that he was showing "symptom magnification" during his post-surgery physical examinations. (Ex. 6)

15. On April 25, 2007, the Springfield Retirement Board denied Mr. Gauthier's application without convening a medical panel because of the concerns raised in Dr. Moskowitz's report about the impact of the May 22, 2003 incident, and based on his contrary medical opinion to that of Dr. Cowan. ("A". Ex. 1.)

16. Mr. Gauthier filed a timely appeal. ("A". Ex. 2.)

Conclusion

I conclude Mr. Gauthier is entitled to have his accidental disability claim proceed onto a medical panel evaluation. The findings made support a conclusion that Mr. Gauthier has satisfied the required G.L. c. 32, § 7(1) threshold criteria. I am not persuaded that the many concerns that Dr. Moskowicz's report discusses are sufficient proof to undermine the use of Dr. Cowan's Physician Statement and medical opinion that are in support of the claim to meet the threshold requirements of an accidental disability retirement claim to reach a medical panel evaluation.

In pertinent part, G.L. c. 32, § 7(1) requires a personal injury, suffered while the member was in the performance of his duties about which notice is filed with the employer. Section 7(1) goes on to state:

No such retirement shall be allowed unless the board, after a review of the evidence it deems appropriate, and after a review by the commission [PERAC], 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.

The regulation of the Public Employee Retirement Administration (PERAC) in 840 CMR 10.09(2) states: "At any stage of a proceeding on an ordinary or accidental disability retirement application the retirement board may terminate the proceeding and deny the application if it determines that the member cannot be retired as a matter of law."

In DeCosta v. Contributory Retirement Appeal Board (CRAB), Appeals Court
# 95-P-1495 (April 24,1996), a police officer was allowed to gain a medical panel evaluation on an accidental disability claim filed after he had retired on ordinary disability for diabetes. He had by the time of his retirement, a problem with both of his feet becoming ulcerated due to his diabetes. His accidental disability claim was that a right big toe fracture suffered in the course of performing his police duties when his right foot got caught on a rock while chasing suspects, had led to an acceleration of right foot ulcerations from the diabetes condition due to the way in which the toe had healed. Both DALA, CRAB and the Superior Court had denied his claim because he had not shown he was disabled at the time of his retirement due to his toe fracture even as an aggravating factor in his diabetes. The Appeals Court reversed and found he had met the threshold requirements to have such a medical causation issue addressed by a medical panel as contemplated by Section 7(1). The Court explained the issue is whether "the broken big toe was what had aggravated DeCosta's right foot, which was already vulnerable because of his diabetes … a proposition which a medical panel under the statutory scheme is to weigh, together with the reasonable question … that the … opinion [supporting accidental disability] does not readily explain why DeCosta's left foot was ulcerated as well." Id. at page 4.

The reasoning in DeCosta, supra, has been followed in subsequent cases where the local retirement boards had ongoing concerns that the member seeking accidental disability retirement either had insufficient evidence of a total and permanent disability or had not presented sufficient evidence to support natural and proximate causation in the claimed personal injury. In MacIver v. State Board of Retirement, CR-97-176 (DALA, March 6, 1998), a wrist injury at work reported to the employer, resulted in ongoing wrist pain. Ms. MacIver filed an application for accidental disability retirement which was denied. But, Ms. MacIver had also begun treatment about two years after the wrist injury for a psychological condition, and after losing her accidental disability orthopedic claim, she filed for accidental disability benefits based on a psychiatric condition. She had been receiving workers' compensation for a psychiatric condition connected to the orthopedic condition. She filed a Physician's Statement in support of her claim by a psychiatrist who explained that she suffered from a depressive disorder related to and caused by the wrist injury. The Board denied her claim without convening a Medical Panel. On appeal, a Medical Panel was ordered because she had satisfied all the required threshold requirements including "a properly filed application … notice of injury [through receipt of workers' compensation]." Her claim was found to have raised a medical question regarding incapacity and proximate causation so that "the language relative to the convening of a medical panel [in G.L. c. 32, § 7(1)] has to be construed as mandatory and not discretionary." Id. at page 3.

Some case law has found the threshold requirements to reach a medical panel evaluation are not satisfied if there is no physician rendering an opinion in support of the claim. This is what happened in Mannix v. Natick Retirement Board, CR-99-005 (DALA, August 5, 1999). The Police Chief's involuntary ordinary disability retirement application for a police officer was denied because there was no medical physician's opinion to support the application. To have that was found to be a threshold requirement for processing the disability claim onto a medical panel. The basis for this requirement was found in G.L. c. 32, § 6 and in the regulation of the Public Employee Retirement Administration Commission (PERAC) at 840 CMR 10.06 where reference is made to providing a physician's opinion to support the claim. Chief Mannix was not able to rely on just the opinion of a psychologist as the Medical Panel by statute, must be composed of licensed physicians.

I conclude the Mannix case is insufficient support for the denial determination of the Springfield Retirement Board on Mr. Gauthier's claim. Even though Dr. Moskowitz provides a strong opinion with numerous underlying facts to question the thoroughness of Dr. Cowan's opinion by arguing it does not address the impact of the history of alcohol and drug abuse on Mr. Gauthier's claim and how the substance abuse may have led to unreliable reports of pain, that does not mean Dr. Cowan's opinion is not sufficient to support Mr. Gauthier's claim. Dr. Cowan's opinion is understandable and addresses as it needs to the impact of the May 22, 2003 injury at work in terms of Mr. Gauthier's claim of a disabling cervical spine condition. Kelley v. CRAB, 341 Mass. 611 (1961) Dr. Moskowitz's opinion may trigger concerns by a medical panel upon evaluating Mr. Gauthier's claim, but his opinion cannot take the place of the medical panel evaluation. Wakefield Retirement Board v. CRAB, 352 Mass. 499 (1967)

For these reasons, the decision of the Respondent Board is reversed and the case is remanded for the convening of a medical panel.

SO ORDERED.

DIVISION OF ADMINISTRATIVE
LAW APPEALS


/s/ Sarah H. Luick, Esq.
Administrative Magistrate

DATED: March 13, 2009