COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS

Appeal of:

Richard Coffey,

Petitioner

v. CR-03-167

Plymouth County Retirement Board,

Respondent

Appearance for Petitioner:

James H. Quirk, Jr., Esq.,

P. O. Box 268
Yarmouthport, Ma. 02675

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, Richard Coffey, is appealing the March 11, 2003 decision of the Respondent, Plymouth County Retirement Board, denying the involuntary application for accidental disability retirement benefits filed on his behalf by his employer, the Plymouth County Sheriff's Department (Exhibit 1). The appeal was timely filed in accordance with the provisions of G.L. c. 32 §16(4).

A hearing pursuant to G.L. c. 7 §4H was held on November 7, 2007 at the offices of the Division of Administrative Law Appeals, 98 N. Washington St., Boston, Ma. Various documents were entered into evidence at the hearing (Exhibits 1 - 27). The Petitioner's Pre-hearing Memorandum was marked as "A" for identification and the Respondent's Pre-hearing Memorandum was marked as "B" for identification. The Petitioner, Richard Coffey, testified in his own behalf. One cassette tape recording was made of the hearing. The record was left open until December 10, 2007 for the filing of written closing memoranda.

FINDINGS OF FACT

Based on the testimony and evidence presented, I make the following findings of fact:

1. The Petitioner, Richard Coffey, d.o.b. 9/16/48, commenced employment as a Correction Officer with Suffolk County in 1985 and was assigned to the Deer Island House of Correction (testimony of the Petitioner).

2. In 1988, the Petitioner transferred to Plymouth County as a Correction Officer at the Plymouth County House of Corrections. He was promoted to the position of Lieutenant approximately one year later (testimony of the Petitioner).

3. He became a member of the Plymouth County Retirement Association on November 8, 1988 (Exhibit 7).

4. His duties as a Lieutenant at the Plymouth County House of Corrections involved supervision of Correction Officers assigned to the institution including assigning these officers to various shifts and posts. In addition, he supervised inmate counts and handled inmate grievances. The Petitioner was also responsible for ensuring proper security in the institution (Exhibit 8).

5. On February 22, 1990, the Petitioner was on duty in the cafeteria when he heard a noise. He then observed two inmates struggling with each other, one of whom was holding a garrote. The Petitioner intervened between the two men and in so doing, one of the inmates injured Lt. Coffey's ribs (testimony of the Petitioner).

6. The Petitioner immediately went to the physician on duty at the institution who told him to get x-rays. The next day, the Petitioner went to Jordan Hospital where he was given x-rays and diagnosed with a strain. He was placed on anti-inflammatory medication and in addition, he received an injection of cortisone for the pain (testimony of the Petitioner).

7. On March 26, 1990, the Petitioner filed a Notice of Injury report with his employer concerning the incident of February 22, 1990 (Exhibit 8).

8. The Petitioner remained out of work for two months after the incident of February 22, 1990. Although he tried to return to light-duty work on three different occasions after the incident, he was unable to perform his duties because of constant pain (testimony of the Petitioner).

9. The Petitioner's last day of work was May 30, 1990. He received workers' compensation benefits as a result of the injury he received on February 22, 1990 (testimony of the Petitioner).

10. Approximately nine months after the injury of February 22, 1990, the Petitioner underwent surgery to remove pieces of his rib performed at Brockton Hospital by Dr. David Hyatt. However, this surgery was not successful and he continued to suffer from increasing pain (testimony of the Petitioner).

11. The pain became so severe throughout the ensuing years that the Petitioner was admitted to both Pembroke Hospital and McLean's Hospital for treatment of depression and pain-related anxiety symptoms (testimony of the Petitioner).

12. In 1993, the Petitioner was first diagnosed with fibromyalgia, a condition that still bothers him up to and including the present date (testimony of the Petitioner).

13. On January 31, 2002, the Plymouth County Sheriff's Department filed an Involuntary Application for Accidental Disability Retirement on behalf of Richard Coffey (Exhibit 8).

14. On April 10, 2002, the Petitioner filed his own application for accidental disability retirement claiming that he was permanently disabled from performing the essential duties of his position based on fibromyalgia which developed as a result of being kicked at work during an incident with an inmate in February of 1990 (Exhibit 9).

15. Dr. George Hayao submitted a Physician's Statement in Support of the Application in which he stated that the Petitioner suffers from persistent pain and fibromyalgia all related to an injury at work on February 22, 1990 (Exhibit 10).

16. Thereafter, the Petitioner was examined on three separate occasions by individual physicians comprising the Regional Medical Panel (Exhibits 13 -15).

17. On July 12, 2002, the Petitioner was examined by Dr. Earl Hoerner, a specialist in rheumatology. Dr. Hoerner responded to all three certificate questions in the affirmative indicating that the Petitioner is permanently disabled from performing the essential duties of his position as a Lieutenant and that his disability 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 (Exhibit 13).

18. Dr. Hoerner diagnosed the Petitioner as suffering from "chronic pain syndrome secondary to costochondral injury, 1990; fibromyalgia syndrome; and post-traumatic stress syndrome with depression and cognitive abnormality" (Exhibit 13).

19. On July 18, 2002, the Petitioner was examined by Dr. Simon Helfgott, a specialist in rheumatology. Dr. Helfgott responded to the first two certificate questions concerning disability and permanence in the affirmative but responded to the third question concerning causation in the negative (Exhibit 14).

20. Dr. Helfgott also diagnosed the Petitioner as suffering from fibromyalgia. However, Dr. Helfgott noted that "although the patient by history has features consistent with the diagnosis of fibromyalgia, there is no evidence to suggest a link between trauma and fibromyalgia…fibromyalgia comprises symptoms that are purely subjective…" (Exhibit 14).

21. On July 23, 2002, the Petitioner was examined by Dr. Mazen Eneyni, a specialist in neurology. Dr. Eneyni responded to the first certificate question in the affirmative but responded to the questions concerning permanence and causation in the negative (Exhibit 15).

22. Dr. Eneyni diagnosed the Petitioner as suffering from "chronic tension-type headache." However, Dr. Eneyni noted that he did not think the condition was permanent as the Petitioner was not receiving treatment for his headaches nor did Dr. Eneyni believe that there was a causal connection between the Petitioner's headaches and his injury at work in 1990 (Exhibit 15).

23. A request for clarification was sent by the Plymouth County Retirement Board to Dr. Eneyni asking him to re-consider the issue of permanency in light of the fact that Mr. Coffey has been receiving permanent disability since 1995 from workers' compensation (Exhibit 16).

24. On December 20, 2002, Dr. Eneyni sent a written reply, re-affirming his original negative response to the question concerning permanence indicating that "neuropathic agents, for example tricyclics, or antiepileptic medications would significantly help his headaches" (Exhibit 18).

25. On March 11, 2003, the Plymouth County Retirement Board voted to deny the Involuntary Application for Accidental Disability Retirement due to majority of the Panel responding in the negative to the issue of causation. At the same time, the Panel voted to approve an involuntary ordinary disability retirement based on his condition (Exhibit 1).

26. On March 26, 2003, the Petitioner filed an appeal of this decision with the Contributory Retirement Appeal Board (Exhibit 2).

27. On April 11, 2003, PERAC (Public Employee Retirement Administration Commission) remanded this matter to the Plymouth County Retirement Board as no application for ordinary disability had been filed (Exhibit 3).

CONCLUSION

In order to receive accidental disability retirement 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 all of his/her duties 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)." Plymouth County 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. Kelley v. CRAB, 341 Mass. 611, 171 N.E. 2d 277 (1961).

There are two issues raised in this appeal: (1) did the majority of the Medical Panel employ an erroneous standard when it responded in the negative to the issue of causation; and (2) whether PERAC should have remanded the award of involuntary ordinary disability retirement benefits.

Regarding the issue of causation, I conclude that the majority of the Medical Panel did not employ an erroneous standard in arriving at its determination that the Petitioner's disabling condition 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. Both Drs. Helfgott and Eneyni conducted complete physical examinations of the Petitioner including range of motion testing, musculoskeletal assessment, cranial nerve testing, motor function testing, and deep tendon reflex testing. Both physicians also confirmed that they had reviewed a job description as well as pertinent medical records.

The Petitioner argues that the Panel was not afforded certain medical records and as such, it could not make a proper determination as to the issue of causation. According to the Petitioner, these omitted medical records included an admission sheet from Jordan Hospital of March 9, 1990, operative notes from Dr. Hyatt relative to the October 30, 1990 surgery, and reports from Dr. Peter Oleynyk. In his narrative report, Dr. Eneyni noted that he reviewed notes the Brockton Hospital dated October 30, 1990 (the day of the Petitioner's surgery), handwritten notes from the Jordan Hospital as well as diagnostic imaging reports from that hospital, operative notes from the New England Baptist Hospital, and x-rays from the Radiology Associates of Plymouth and from the Barnstable County Hospital. In addition, Dr. Eneyni reviewed a discharge summary from McLean Hospital, a note dated 11/8/90 from Thoracic Associates, a note from Dr. Kerzner, a psychiatrist and neurologist, as well as a report of a 3/9/02 psychological consultation. Dr. Helgott referred to notes from Dr. Mally, a rheumatologist, consultant reports from Dr. Goldenberg, and notes from Dr. Hayao, the Petitioner's treating physician. Notwithstanding the Petitioner's argument, I conclude that while not every medical record was supplied to the Panel physicians, sufficient records were submitted in order for the Panel to make proper responses to the certificate questions.
After conducting an examination and a review of the medical records as well as Petitioner's job description, Dr. Helfgott diagnosed the Petitioner's condition as disabling fibromyalgia. With respect to the issue of causation, Dr. Helfgott stressed that there is no evidence to suggest a link between trauma and fibromyalgia and that there is no scientific data that would support that the injury that the Petitioner sustained in 1990 was causally connected to his development of fibromyalgia. I conclude that Dr. Helfgott's negative response to the third question was supported by the evidence both medical and non-medical provided in this case. The Petitioner acknowledged at the hearing that he was not diagnosed with fibromyalgia until 1993, three years after the incident at work in February of 1990.

Dr. Eneyni, after conducting a physical examination and review of the Petitioner's job description and relevant medical records, diagnosed Mr. Coffey as suffering from chronic headaches. While he acknowledged that Mr. Coffey had been diagnosed with fibromyalgia, Dr. Eneyni opined that it was the chronic headaches that rendered the Petitioner disabled from performing the essential duties of his position. Dr. Eneyni further opined that these headaches were not causally related to the Petitioner's employment.

Based on the testimony and evidence provided, I conclude that the majority of the Medical Panel did not employ an erroneous standard when it determined that the Petitioner's disabling condition was not such as might be the natural and proximate result of the personal injury he sustained at work in February of 1990.

After the majority of the Medical Panel responded that the Petitioner is permanently disabled from performing the essential duties of his position, the Plymouth County Retirement Board voted to involuntarily retire him for ordinary disability. PERAC remanded this matter to the Board on the grounds that the Petitioner had not filed a voluntary application for ordinary disability retirement benefits. Notwithstanding PERAC's position, case law supports the Board's action in awarding ordinary disability retirement benefits to Mr. Coffey in this instance. In the case of MacDonald v. Commissioner of the Metropolitan District Commission, 33 Mass. App. Ct. 455 (1992), the Commissioner, in his capacity as the Appointing Authority, filed an application for involuntarily accidental disability retirement on behalf of Francis MacDonald. A Medical Panel examined Mr. MacDonald and concluded that although he was permanently disabled from performing the essential duties of his position, his condition was not such as might be the natural and proximate result of the personal injury sustained or hazard undergone on account of which retirement was claimed. Upon receipt of the Medical Panel's report, the State Board of Retirement denied the Commissioner's involuntary application for accidental disability retirement benefits but sua sponte awarded Mr. MacDonald ordinary disability retirement benefits. Mr. MacDonald appealed this determination claiming that unless the State Board of Retirement found him to be eligible for accidental disability retirement benefits, he should be reinstated to his position. The Court disagreed stating the following:

We think that this is an incorrect interpretation of G.L. c. 32 Section 16(1)(c). It is true that G.L. c. 32 Section 16(1)(a) requires the commissioner to choose between two types of retirement when filing his application. However, the commissioner, through his application, was necessarily seeking a determination from the board that both MacDonald was permanently disabled and that the disabled was causally related to his work. By choosing an application for accidental disability retirement, which would have afforded MacDonald a more generous pension than ordinary disability retirement, the commissioner sought to benefit MacDonald. The underlying assumption, however, was that the commissioner had determined that MacDonald could no longer function as a police officer because of his permanent disability. It would have been unreasonable for MacDonald to have assumed, as he stated he did, that if he should be found to be permanently disabled, but not as a result of his MDC police work, that he could resume his employment. The board having decided, after the opportunity for a hearing on the issue, that an employee is permanently disabled, it would be wasteful and irrational to require a department head to reapply to the board for the employee's involuntary retirement on the basis or ordinary disability. Thus, it is not surprising that G.L. c. 32 Section 16(1)(c) provides for automatic reinstatement after a board decision only if the board finds the employee should not be retired. There was no finding by the board that MacDonald should not be retired. Neither the logic of the statutory scheme, nor the specific language of G.L. c. 32 Section 16(1)(c), supports MacDonald's claim of entitlement.

MacDonald, supra at 460-461.

The analysis espoused by the Appeals Court in MacDonald, supra, is applicable to the present case. There is no dispute that the Petitioner is permanently disabled from performing the essential duties of a Lieutenant Correction Officer. Implicit in the filing of the Sheriff's application for involuntary accidental disability retirement is the premise that Mr. Coffey likewise qualifies for ordinary disability. The remand from PERAC on the grounds that neither the Petitioner nor the Sheriff filed an application for ordinary disability retirement runs directly contrary to the holding in the MacDonald case, supra.

For the foregoing reasons, I hereby affirm the decision of the Plymouth County Retirement Board denying the involuntary application for accidental disability retirement benefits filed on behalf of Mr. Coffey and further affirm the decision of the Board to award him ordinary disability retirement benefits.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Joan Freiman Fink
Administrative Magistrate

Dated: 3/21/08


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