COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS

Appeal of:

Pamela Cooper,

Petitioner

v. CR-07-260

Haverhill Retirement Board,

Respondent

Appearance for Petitioner:

Kevin T. Daly, Esq.

Daly & Daly
265 Essex Street - Suite 103
Salem, MA. 01970

Appearance for Respondent:

Michael Sacco, Esq.

285 College Highway
P.O. Box 479
Southampton, MA. 01073

Administrative Magistrate:

Joan Freiman Fink, Esq.

DECISION

Pursuant to G.L. c. 32 §16(4), the Petitioner, Pamela Cooper, is appealing the March 20, 2007 decision of the Respondent, Haverhill Retirement Board, denying her application for accidental disability retirement benefits (Exhibit 1). The appeal was timely filed in accordance with the provisions of G.L. c. 32 §16(4).

Pursuant to the provisions of 801 CMR 1.01 (10) (c), the parties agreed to submit the case on written submissions and to waive a hearing. On March 26, 2008, the Petitioner submitted a written argument and proposed exhibits. On March 26, 2008, the Respondent submitted a written argument and proposed exhibits. The record was closed on March 26, 2008. Administrative notice was taken of the prior appeal in this matter Pamela Cooper v. Haverhill Retirement Board, CR-04-582 (DALA dec. 12/12/05; no CRAB dec.).

The Parties agreed to the submission of the following Exhibits in this matter:

Exhibit 1 - Letter of Denial
Exhibit 2 - Letter of Appeal
Exhibit 3 - Member's Application for Disability Retirement
Exhibit 4 - Physician's Statement
Exhibit 5 - Employer's Statement
Exhibit 6 - Injury Reports dated November 16, 1992 and January 17, 2003
Exhibit 7 - Medical Panel report of Drs. Caprio, Fine-Edelstein, and Hewson
Exhibit 8 - Notice of Retirement Board Action 8/10/04
Exhibit 9 - Notice of Appeal
Exhibit 10 - Affidavit of Kathleen Gallant, 11/8/05
Exhibit 11 - DALA decision, 12/12/05
Exhibit 12 - Request for Appointment of Regional Medical Panel
Exhibit 13 - Transmittal of Background Information to Medical Panel
Exhibit 14 - Affidavit of Kathleen Gallant, 2/11/08
Exhibit 15 - Medical Panel report of Drs. Mansfield, Friedman, and Sciascia
Exhibit 16 - Memorandum from PERAC to the Medical Panel, 12/16/06
Exhibit 17 - Letter from Medical Panel to PERAC, 12/16/06
Exhibit 18 - Medical Records of the Lahey Clinic
Exhibit 19 - Medical Records of Robert L. Scribner, M.D.
Exhibit 20 - Medical Records of Orthopedic Rehabilitation Associates
Exhibit 21 - Medical Records of John C. Richmond, M.D.
Exhibit 22 - Medical Records of Whittier Rehabilitation Hospital
Exhibit 23 - Medical Records of Merrimack Valley Muscular Therapy
Exhibit 24 - Medical Records of New England Medical Center
Exhibit 25 - Medical Records of Hale Hospital
Exhibit 26 - Medical Records of the MRI Center
Exhibit 27 - Medical Records of Jonathan Kay, M.D.
Exhibit 28 - Medical Records of Don L. Goldenberg, M.D.
Exhibit 29 - Medical Records of Steven Moskowitz, M.D.
Exhibit 30 - Medical Records of Northeast Rehabilitation Hospital
Exhibit 31 - Medical Records of Harvey A. Taylor, M.D.
Exhibit 32 - Medical Records of O'Brien Chiropractic
Exhibit 33 - Medical Records of James Gibbons, M.D.
Exhibit 34 - Medical Records of George Ousler, M.D.
Exhibit 35 - Medical Records of Ralph Wolf, M.D.

FINDINGS OF FACT

The parties stipulated and agreed to the following findings of fact which I hereby adopt:

1. The Petitioner, Pamela Cooper, d.o.b. 3/16/45, commenced employment as an Administrative Assistant to the Haverhill City Council on or about February 25, 1991 (stipulation of the Parties).

2. On or about September 8, 1992, the Petitioner injured her right shoulder while opening a window in her office. Cooper subsequently underwent a surgical procedure for a torn rotator cuff in her right shoulder, and had surgery on her left shoulder as a result of favoring her right shoulder (stipulation of the Parties).

3. Following these surgical procedures, Cooper was able to resume her duties, although she continued to be treated for her ongoing symptoms (stipulation of the Parties).

4. On January 9, 2003, the Petitioner, while performing her duties at work putting away office supplies, felt a sharp pain in her neck and shoulders (stipulation of the Parties).

5. The Petitioner filed a Notice of Injury Report concerning this incident of January 9, 2003 (Exhibit 6).

6. Following this incident, the Petitioner continued working until January 24, 2003, at which time she felt that the pain was too severe for her to continue performing her duties (stipulation of the Parties).

7. On September 25, 2003, the Petitioner filed an application for accidental disability retirement benefits claiming that "as a result of the injuries sustained on September 8, 1992 and on January 9, 2003, I am and have been experiencing severe pain in both arms and upper body preventing me from performing my duties" (Exhibit 3).

8. Upon reviewing the Application and relevant medical records, the Haverhill Retirement Board requested that the Public Employee Retirement Administration Commission (PERAC) convene a Medical Panel to examine the Petitioner (stipulation of the Parties).

9. On June 30, 2004, the Petitioner was examined by a Regional Medical Panel consisting of Dr. James Hewson, chairman, specializing in orthopedic surgery, Dr. Anthony Caprio, specializing in orthopedic surgery and Dr. Judith Fine-Edelstein, specializing in neurology (Exhibit 7).

10. The Panel responded to the first two questions in the affirmative indicating that the Petitioner is permanently disabled from performing the essential duties of her position as an Administrative Assistant to the Haverhill City Council. However, the Panel responded to the third question concerning causation in the negative, thus opining that her incapacity is not such as might be the natural and proximate result of the personal injury sustained or hazard undergone on account of which retirement is claimed (Exhibit 7).

11. On August 10, 2004, the Haverhill Retirement Board sent the Petitioner formal notification that her application for accidental disability retirement had been denied (Exhibit 8).

12. On August 16, 2004, the Petitioner filed a timely appeal of that decision with the Contributory Retirement Appeal Board. The matter was referred to the Division of Administrative Law Appeals for a hearing on the merits before an Administrative Magistrate. This hearing was subsequently held on November 8, 2005 (Exhibit 9, stipulation of the parties).

13. On December 12, 2005, this Administrative Magistrate issued a decision reversing the Haverhill Retirement Board's denial of the application for accidental disability retirement and remanding the matter for the convening of a new Medical Panel. The decision noted that the first Medical Panel had applied an erroneous standard in arriving at its negative opinion as to causation as it failed to consider what impact, if any, the Petitioner's injury in September of 1992 had on her current condition and further failed to consider the results of the medical testing performing on the Petitioner after her January 2003 incident (stipulation of the parties).

14. A new Medical Panel consisting of Dr. Frederick Mansfield, chairman, specializing in orthopedic surgery, Dr. Mark Friedman, specializing in internal medicine and Dr. Thomas Sciascia, specializing in orthopedic surgery, was convened on October 19, 2006 to examine the Petitioner. The Second Medical Panel answered the first two questions in the affirmative but likewise responded to question three concerning causation in the negative opining that Ms. Cooper's incapacity is not such as might be the natural and proximate result of the personal injury sustained or hazard undergone on account of which retirement is claimed (Exhibit 15).

15. On December 6, 2006, PERAC sent a Memorandum to the Second Medical Panel requesting clarification of its response. Specifically, PERAC asked the Panel to respond to five questions relating to the Petitioner's September 1992 injury, her recent medical testing, the reports of Dr. Richmond and MRI testing, and the issue of aggravation of a pre-existing condition (Exhibit 16).

16. By letter dated December 16, 2006, the Second Medical Panel responded to PERAC's request for clarification. The Panel reaffirmed its original responses to the certificate questions. The Panel then opined that the Petitioner's September 1992 injury does not impact her myofascial pain syndrome and advanced osteoarthritis of the cervical spine. The Panel noted that it considered the results of all medical testing performed as well as the reports and opinions of Dr. Richmond (Exhibit 17).

17. With respect to the issue of aggravation of a pre-existing condition, the Second Panel opined that there was "no evidence of an aggravation of a pre-existing condition that aggravated her underlying osteoarthritic condition into a disability" (Exhibit 17).

18. Finally, the Medical Panel opined that the MRI changes noted from November 1997 to February of 2003 did not explain the Petitioner's orthopedic condition of chronic pain syndrome and did not suggest aggravation of a pre-existing condition (Exhibit 17).

19. On March 20, 2007, the Haverhill Retirement Board sent the Petitioner formal notification that her application for accidental disability retirement benefits had been denied (Exhibit 1).

20. On March 26, 2007, 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 the essential duties of his/her position as a result of an injury sustained or hazard undergone while in the performance of his/her duties. The Medical Panel's function is to determine "medical questions which are beyond the common knowledge and experience of the local board (or the Appeal Board)." Malden Retirement Board v. CRAB, 298 N.E. 2d 902, 1 Mass. App. 420 (1973). Unless the panel applies an erroneous standard or fails to follow proper procedures, or unless the certificate is "plainly wrong," the local board may not ignore the panel's medical findings. See Kelley v. CRAB, 341 Mass. 611, 171 N.E. 2d 277 (1961).

In this case, I conclude that the current Medical Panel did not apply an erroneous standard in arriving at its conclusion that the Petitioner's incapacity is not such as might be the natural and proximate result of the personal injury sustained or hazard undergone on account of which retirement is claimed. The Medical Panel conducted a thorough physical examination of the Petitioner including deep tendon reflex testing, testing of both the upper and lower extremities, range of motion testing, and rotation testing. In addition, the Panel reviewed the results of medical testing including the cervical MRI performed on February 27, 2003. The Panel reviewed the medical records from Dr. Richmond relative to Ms. Cooper's prior surgeries and notes from Dr. Gibbons. The Panel also carefully considered Ms. Cooper's detailed job description outlining her duties as an Administrative Assistant. The Panel then concluded that the Petitioner is disabled due to her complaint of chronic pain syndrome of the right upper extremities and osteoarthritis of the cervical spine. The Panel further concluded that both conditions were unrelated to the Petitioner's work injuries.

PERAC sent the Medical Panel a request for clarification specifically asking the Panel to address the issue as to what impact, if any, Ms. Cooper's work-related injury of September 8, 1992 had on her current condition of myofascial pain and the issue of whether her work-related injury aggravated her underlying osteoarthritic condition into a disability. PERAC also requested that the Panel review the results of the medical testing as it relates to her current condition. The Panel responded promptly to PERAC's request for clarification noting that the Petitioner's September 1992 injury did not impact her myofascial pain syndrome and advanced osteoarthritis of the cervical spine. The Panel reiterated that it had reviewed all the medical records provided to it including the results of the MRI testing and Dr. Richmond's medical reports. With respect to the issue of aggravation, the Panel opined that the Petitioner did not experience an aggravation of her pre-existing osteoarthritic condition to the point of disability and that the differences in the cervical spine MRI results between the November 1997 and February 2003 did not explain her orthopedic condition of chronic pain syndrome.

In the case of Gregory Fairbairn v. Contributory Retirement Appeal Board, 54 Mass. App. Ct. 353 (2002), the Appeals Court affirmed the denial of the Mr. Fairbairn's application for accidental disability retirement benefits based upon the negative opinion of the majority of the Medical Panel that Mr. Fairbairn's permanent incapacity was not such as might be the natural and proximate result of the personal injury sustained on which his retirement application was based. The Medical Panel found that Mr. Fairbairn, a diesel plant operator at the Massachusetts Water Resources Authority, had a twenty year history of knee problems before injuring his knee in January of 1993. The Medical Panel then found that Mr. Fairbairn recovered from his January 1993 and that his present disability resulted from the progression of traumatic arthritis predating his injury and was not aggravated by his injury. In Fairbairn, supra at 361, the Court noted that "the doctors answered the statutory questions as required. They also explained the reasons for their answers in the required discussion set forth in the narrative, which responded to the requests in the certificate forms…Their responses considered the possibilities. They did not simply rely on a single statistical explanation without considering the alternatives…." In this case, as in Fairbairn, the Medical Panel properly considered the Petitioner's injuries in September of 1992, January of 2003, her medical records, diagnostic testing and her current symptomatology as well as the possibility that her January 2003 injury aggravated her underlying condition into a permanent disability. The Panel then concluded that the Petitioner's present permanent incapacity is not such as might be the natural and proximate result of her work injuries.

Since the certificate of the current Medical Panel is not plainly wrong and the Panel followed all the proper procedures and did not apply an erroneous standard, the Haverhill Retirement Board may not ignore its findings. See Kelley v. CRAB, supra.
Accordingly, I order that the decision of the Haverhill Retirement Board denying Ms. Cooper's application for accidental disability retirement benefits be affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Joan Freiman Fink
Administrative Magistrate

Dated: 4/18/08


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