COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Robert Bergeron,

Petitioner

v. Docket No. CR-07-226

Fall River Retirement Board,

Respondent

Appearance for Petitioner:

Robert J. Bergeron, pro se

187 Osborn Street
Fall River, MA 02724

Appearance for Respondent:

Michael Sacco, Esq.

285 College Highway
PO Box 479
Southampton, MA 01073

Administrative Magistrate:

Maria A. Imparato, Esq.


DECISION

Robert Bergeron filed a timely appeal under G. L. c. 32, s. 16 (4) of the February 28, 2007 decision of the Fall River Retirement Board to deny his request for accidental disability retirement benefits. (Exs. 1, 2)

I held a hearing on March 25, 2008 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA.

I admitted documents into evidence. (Exs. 1 - 30) I marked the Petitioner's pre-hearing memorandum "A" for identification and the Respondent's pre-hearing memorandum "B" for identification. The Petitioner testified. There is one tape cassette of the hearing. The record closed on April 25, 2008 with the filing of briefs.

FINDINGS OF FACT

1. Robert Bergeron, d.o.b. 2/11/1958, has worked as a custodian for the Town of Fall River Buildings and Grounds Division since January 1995. He has been working in a light duty position since December 14, 2001 because of back and neck pain. (Testimony, Ex. 5)

2. Mr. Bergeron has a history of low back pain that dates back to 1979. Mr. Bergeron was seen at Union-Truesdale Hospital ("Union-Truesdale") on July 31, 1979 complaining of low back pain and pain in both legs after doing heavy lifting at work in May 1979. He was diagnosed with a low back sprain and prescribed heat and Flexeril. (Ex. 13, 7/31/1979)

3. Mr. Bergeron was seen again at Union-Truesdale on December 27, 1979 with complaints of low back pain after lifting a small dumpster at work. He was diagnosed with acute lumbar muscle strain and was advised to rest at home and to avoid lifting, bending and driving a car. He was seen again on December 31, 1979 with increased pain, and was prescribed rest, Tylenol #2 and Norflex. (Ex. 13, 12/27/1979; 12/31/1979)

4. In March 1980 Mr. Bergeron received physical therapy at Charlton Memorial Hospital ("Charlton Memorial") for back pain from the dumpster-lifting incident. (Ex. 11, 3/10/1980)

5. On October 17, 1980, Leslie Stern, M.D., a neurologist, admitted Mr. Bergeron to the hospital for investigation of continued low back pain. A myelogram showed no evidence of disc herniation, and the nerve roots appeared normal. (Ex. 13, 10/15 - 10/17/1980)

6. On October 25, 1980, Henri L. Pache, M.D. performed an EMG because Mr. Bergeron's had been complaining for more than one year of low back pain with tightness and sensory changes involving the anterolateral thighs and soles and heels of his feet. The EMG did not show evidence of any lower motor neuron disorder that would account for the symptoms. (Ex. 14, 10/25/1980)

7. On April 23, 1981, Mr. Bergeron was seen in the emergency room at Charlton Memorial after a motor vehicle accident in which he sprained his hand. A hand evaluation performed on July 1, 1981 noted that Mr. Bergeron was not working due to a back injury. (Ex. 11, 4/23/1981; 7/1/1981)

8. A lumbosacral CT scan performed on August 29, 1986 demonstrated spondylolysis defects at L5; spondylolithesis; and no disc herniation.
(Ex. 11, 8/29/1986)

9. On January 24, 1990, Mr. Bergeron was seen at Charlton Memorial for physical therapy, where it was noted that he had a 10-year history of back pain and had fallen down the stairs in 1986. Mr. Bergeron reported that he had constant back pain and rated it 8/10. (Ex. 11, 1/24/1990)

10. On August 26, 1994, Mr. Bergeron was in a motor vehicle accident and was seen in the emergency room at Charlton Memorial where he was diagnosed with acute cervical strain and prescribed a soft collar. (Ex. 11, 8/26/1994)

11. On September 6, 1994, Mr. Bergeron was seen in the emergency room with neck and low back pain. He was prescribed Skelaxin and Vicodin. Cervical spine films demonstrated muscle spasm, with hypertrophic spurring at C5-6. (Ex. 11, 9/6/1994)

12. On September 20, 1994, Mr. Bergeron was evaluated by M.A. Bernard, M.D. for neck pain, migraines and low back pain sustained in the motor vehicle accident of August 1994. Dr. Bernard diagnosed a severe cervical strain, a low back sprain, and a question of radiculopathy. He ordered an EMG performed on October 31, 1994. It demonstrated mild right C5-6 radiculopathy, and mild bilateral L5-S1 radiculopathy. (Ex. 17, 9/20/1994; Ex. 12, 10/31/1994)

13. Mr. Bergeron regularly saw Dr. Richard Perkins at Somerset-Swansea Medical Center for back pain from 1994 to 1997. Dr. Perkins prescribed Percocet, Valium and Elavil. (Ex. 16)

14. On April 21, 1995, Mr. Bergeron saw Dr. Bernard with complaints of continued neck and back pain, despite doing a home exercise program three times a day. An MRI on May 3, 1995 demonstrated bulging at C3-4, C4-5 and C5-6; a small focal protrusion centrally at C4-5, and on the left side at C5-6. The right neural foramen a C5-6 was slightly narrow. There was bulging at L3-4, L4-5 and L5-S1. (Ex. 17, 4/21/1995; 4/26/1995; 6/12/1995; Ex. 11, 5/3/1995)

15. In 1997, Mr. Bergeron answered interrogatories with respect to the 1994 motor vehicle accident. He indicated that he believed his neck and back injuries from the accident were permanent. (Ex. 9)

16. Mr. Bergeron began regular chiropractic treatments at Merolla Chiropractic in November 1998 for headache, neck and back pain. (Ex. 19)

17. On January 8, 1999 Mr. Bergeron was in his car with the door ajar when another car hit the door, causing him to wrench his neck, mid-back and left shoulder. He received chiropractic care. (Ex. 18)

18. Beginning on January 22, 1999, Mr. Bergeron suffered four work-related injuries that form the basis of his application for accidental disability retirement benefits. On January 22, 1999, while he was looking for a roof leak, Mr. Bergeron fell through a rotted floor and grabbed onto a pipe with his left hand to stop himself. He filed a notice of injury on January 22, 1999 claiming injuries to his knees, back and neck. (Ex. 6)

19. Mr. Bergeron consulted Merolla Chiropractic. Cervical and thoracic x-rays on January 25, 1999 showed moderate discogenic spondylosis at C5-6-7 with uncovertebral changes. (Ex. 19)

20. On April 17, 1999, Allan R. Steingisser, D.C., evaluated Mr. Bergeron for insurance purposes related to the motor vehicle accident on January 8, 1999. Dr. Steingisser concluded that Mr. Bergeron had been nonresponsive to chiropractic treatment, and that there was no objective evidence of soft tissue, joint or spinal involvement to support ongoing treatment, despite Mr. Bergeron's complaints of left shoulder, neck and lower back pain. "He presents now three months later claiming that he cannot rotate or laterally bend his lower back but performs these functions well when performing other testing." (Ex. 20)

21. On January 26, 2000, Mr. Bergeron suffered his second work-related incident when he slipped on black ice while putting down salt on a walk. He hit his back and neck on a pipe railing, and his left shoulder hit a granite step. He experienced pain in his neck, shoulder and low back. He filed a notice of injury. (Ex. 6, 1/26/00; Testimony)

22. Mr. Bergeron was evaluated by Dr. Vaillancourt on January 27, 2000. X-rays of the cervical spine, left shoulder and skull were normal with the exception of some degenerative changes in the cervical spine. He was treated with heat, Motrin, Skelaxin, and was given a diagnosis of contusion to the neck and left shoulder. (Ex. 11, 3/1/00)

23. On or about February 22, 2000, Mr. Bergeron experienced his third injury of increased pain in his back and left arm after shoveling snow. He filed a notice of injury. (Ex. 6, 2/23/00; Testimony)

24. Mr. Bergeron was evaluated on February 23, 2000 by Dr. Vaillancourt and referred to the Orthopedic Clinic at Charlton Memorial where he came under the care of James D. Coleman, M.D. His treatment included Skelaxin, Motrin and a cervical pillow. (Ex. 11, 3/1/00)

25. Dr. Coleman saw Mr. Bergeron on March 1, 2000, noting that he was still symptomatic, complaining of pain in the left arm, pain at the base of the neck radiating to the left shoulder area, and paresthesias in the left arm involving the fingers. Dr. Coleman diagnosed cervical and left shoulder contusion, preexisting cervical degenerative disc disease, and cervical radiculopathy of the left arm. He prescribed modified work, Celebrex, and a trial of physical therapy with the use of traction. (Ex. 11, 3/1/00)

26. An EMG of the left upper extremity on March 16, 2000 was within normal limits. (Ex. 11, 3/22/00; Ex. 21)

27. An MRI of the cervical spine on March 27, 2000 showed asymmetric foraminal narrowing on the left side at C6-7 with possible associated disc herniation versus spur as a cause of the narrowing. There was small spurring versus small disc herniation on the right side at C5-6. (Ex. 11, 3/27/00)

28. Dr. Coleman noted on March 29, 2000 that Mr. Bergeron continued to have intermittent occipital headaches, with easy fatigability of his left arm. (Ex. 11, 3/29/00)

29. On April 19, 2000, Dr. Coleman noted that Mr. Bergeron continued to experience intermittent pain in the head, neck and left arm. Dr. Coleman diagnosed a herniated intervertebral disc of the cervical spine and cervical degenerative disc disease. (Ex. 11, 4/19/00)

30. On May 4, 2000, Mr. Bergeron suffered his fourth work injury when he loaded a box truck with boxes and buckets, and then used a 50-pound HEPA vacuum to vacuum 22 rooms. He felt increased pain in his neck and both arms. He filed a notice of injury. (Ex. 6, 5/4/00; Testimony)

31. On May 9, 2000, Leslie Stern, M.D., a neurosurgeon, evaluated Mr. Bergeron for his complaints of headaches, neck pain and arm pain. Dr. Stern diagnosed mild cervical radiculopathy on the left related to degenerative disc disease. Dr. Stern recommended light duty work. (Ex. 23, 5/9/00)

32. Dr. Coleman saw Mr. Bergeron on May 22, June 19, and August 2, 2000, with no appreciable change in his condition. (Ex. 11, 5/22/00; 6/19/00; 8/2/00)

33. On July 19, 2000, Dr. Stern opined that Mr. Bergeron could return to light duty work, with no working over shoulder level; no heavy pushing, pulling or lifting; no frequent neck motion; and a lifting restriction of 10 pounds. (Ex. 23, 7/19/00)

34. On September 6, 2000, Mr. Bergeron consulted All American Chiropractic Center with complaints of neck, shoulder, and low back pain, headaches and blurred vision. He received chiropractic manipulations until in or about January 2001 when his chiropractor opined that Mr. Bergeron had reached a plateau. (Ex. 24)

35. Mr. Bergeron had a neurological evaluation by Amin Sabra, M.D. on February 6, 2001. On April 19, 2001, Dr. Sabra noted that Mr. Bergeron continued to complain of pain in his neck with radiation down both arms, left more than right, with pain in the low back radiating down both legs. Dr. Sabra noted that an EMG showed mild chronic denervation in the left C6, C7 distribution, with no denervation in the right arm or in either lower extremity. There was no evidence of carpal tunnel syndrome. (Ex. 25, 4/19/01)

36. Bruce Derbyshire, M.D., an orthopedic surgeon, evaluated Mr. Bergeron for worker's compensation purposes on March 1, 2001. He diagnosed mild Scheuermann's disease of the dorsal spine, unrelated to the injury of January 26, 2000 (the fall on black ice), and cervical disc protrusion/osteophyte formation of the cervical spine with cervical radiculopathy. He opined that the "incident of January 26, 2000 aggravated his underlying degenerative disc disease." He opined that Mr. Bergeron could function in a light duty capacity. (Ex. 29)

37. Dr. Sabra indicated in his progress note for April 19, 2001, "I told him that my diagnosis is more instability of the neck and lower back due to deconditioning. I told him that the EMG did not show any significant nerve compression and that the changes seen in his neck and/or back are chronic changes. I told him there is a possibility that he could have bruised his nerve when he whacked his neck, but that there is no acute disk herniation here, in the neck or in his lower back. I told him that the bony spurs are chronic changes that could not have happened at the time of his accident." Dr. Sabra recommended that Mr. Bergeron stay out of work for six weeks and undergo physical therapy. (Ex. 25, 4/19/01)

38. At a follow-up visit on June 1, 2001, Dr. Sabra noted that Mr. Bergeron had some improvement in his pain after three weeks of physical therapy, and that he was taking Vioxx and OxyContin. He opined that Mr. Bergereon could resume light duty work, with no lifting of more than ten pounds, and no repetitive use of his neck or arms. (Ex. 25, 6/1/01)

39. Dr. Sabra saw Mr. Bergeron in July, September, October and December 2001, with no real improvement in his symptoms, despite a cervical facet block and a lumbar epidural steroid injection on July 23, 2001. By report of December 31, 2001, Dr. Sabra opined that Mr. Bergeron was completely disabled from performing his job as a custodian, but that he could perform light work with no lifting more than ten pounds, and with no repetitive bending, pushing or pulling, and no repetitive work involving overhead use of the arms. (Ex. 25, 7/9/01; 9/4/01; 10/10/01; 12/26/01; 12/31/01; Ex. 26, 7/23/01)

40. On February 13, 2002, Dr. Sabra recommended another cervical facet block which was performed on April 11, 2002. (Ex. 25, 2/13/02; Ex. 26, 4/11/02)

41. On April 12, 2002, Vernon H. Mark, M.D., evaluated Mr. Bergeron for worker's compensation purposes. He diagnosed cervical and lumbar spine syndrome; cervical and lumbar spondylosis; and lateral recess stenosis at C6/7 and C5/6. He opined that the degenerative changes probably predated Mr. Bergeron's work injuries. "However, the patient's industrial accidents-especially the third [pain after snow shoveling], probably exacerbated the underlying pathology and made it symptomatic." He opined that Mr. Bergeron could not do lifting over 10 pounds. (Ex. 30)

42. On April 25, 2002, Dr. Sabra recommended additional epidural steroid injections which were performed on May 14, June 19 and July 17, 2002. (Ex. 25, 4/25/02; Ex. 26, 5/14/02; 6/19/02; 7/17/02)

43. On September 11, 2003, Dr. Sabra offered a diagnosis of cervical degenerative disease with osteophytes and radicular pain, and lumbar degenerative disc disease with instability of the lumbar spine. He recommended that Mr. Bergeron start to cut back on his OxyContin. (Ex. 25, 9/11/02)

44. An MRI on June 15, 2005 demonstrated grade I anterolisthesis of L5 on S1, with a small left posterolateral disc protrusion which slightly abuts the L5 and left S1 nerve root; a small asymmetric disc bulge at L4-5, abutting the left L5 nerve root; and degenerative changes involving the intervertebral discs of the lower thoracic and lumbar spine. (Ex. 28)

45. On or about February 3, 2006 Mr. Bergeron filed an application for accidental disability retirement benefits, citing "multiple bulging and herniated discs in my neck and back, pain in arms and hand, pain in left leg, sometimes right," as a result of the injuries of January 8, 1999, and January 26, February 22 and May 4, 2000. (Ex. 3)

46. Richard E. Perkins, M.D., an internist, filed a statement in support of the application, answering all certificate questions in the affirmative. He diagnosed severe cervical and lumbar radiculopathy due to cervical and lumbar disc disease. He opined that Mr. Bergeron could not lift more than 10 pounds, or work overhead, or perform repetitive lifting, bending pushing or pulling. He opined this disability is likely to be permanent. (Ex. 4)

47. With respect to causation, Dr. Perkins opined that the disability was caused by the work injuries. "At the time of Mr. Bergeron's second industrial accident on 1/26/2000 he worked as a mason tender. He was able to lift in excess of 100 lbs. as well as perform other strenuous activities, and heavy physical work. His industrial accidents particularly the third 2/22/2000 (snow shoveling), and fourth 5/4/2000 (truck loading) exacerbated his pathology resulting in total and permanent disability." (Ex. 4)

48. A regional medical panel composed of Drs. Michele Masi, Mark Friedman and Brian Mercer convened on December 21, 2006 to examine Mr. Bergeron. Drs. Masi and Mercer are neurologists. Dr. Friedman is an internist. (Ex. 8, Board of Registration in Medicine website)

49. The panel answered unanimously in the affirmative with respect to disability and permanence, and in the negative with respect to causation. (Ex. 8)

50. The panel reviewed a job description, took a history, and performed a physical examination. The panel reviewed medical records, including MRI films of the lumbar and cervical spine from April, 2001. The panel diagnosed progressive cervical and lumbar degenerative disease. (Ex. 8)

51. Physical examination revealed normal gait; an ability to stand on each foot alone with mild swaying; forward bending at the waist to 40 degrees, 10 degrees on extension and 15 degrees laterally; right shoulder forward flexion to 150 degrees with internal rotation 50% of normal; left shoulder forward flexion to 160 degrees with internal rotation 30% of normal; tenderness over the cervical occipital junction and diffusely over the neck and shoulders; diffuse tenderness over the lumbar spine, buttocks and hips, without palpable spasm; straight leg raising while sitting produced ipsilateral back and leg pain at 70 degrees. (Ex. 8)

52. Motor testing revealed pain-limited giveaway weakness in the left deltoid and in the left wrist extensor; intact strength in the right arm; mild giveaway weakness in the left psoas muscle, with otherwise intact leg strength; symmetric calf circumference; and intact pulses in the feet. Sensory testing was diminished in the right 2nd to 5th digits, and the left 1st and 2nd digit, and the left ulnar palm, in a non-dermatomal pattern. (Ex. 8)

53. The panel opined that the clinical examination revealed evidence for "moderate restriction in cervical and lumbar mobility, but no definite evidence for cervical or lumbosacral radiculopathy. There was no clinical correlation with his MRI findings …The panel notes a 20 year history of back and sciatic pain antedating his work injuries. He had also developed neck and left arm pain after the 8/94 [motor vehicle accident], with at least a year of documented treatment, MRI, EMG thereafter. He also developed his current constellation of symptoms after the [motor vehicle accident] occurring on 1/8/99, with back pain, headaches, neck and left arm pain." (Ex. 8)

54. The panel concluded that Mr. Bergeron "has progressive cervical and lumbar degenerative disc disease of long standing, with only transient exacerbation related to the work injuries … He has returned to his baseline of chronic neck and back and limb pain, without current evidence for fixed cervical or lumbosacral radiculopathy. He also has profound deconditioning as evidenced by his dyspnea with taking only a few steps into the examination room. He has some component of myofascial pain also of long standing, which was not permanently worsened by these work injuries." (Ex. 8)

55. The panel opined that Mr. Bergeron is permanently unable to perform the essential duties of a custodian "[f]or reasons of limited spinal mobility, deconditioning, and myofascial pain." (Ex. 8)

56. With respect to causation the panel opined that "his condition is the result of progressive degenerative disc disease, symptomatic in the back for 2 decades, and in the neck for 6 years before his work injuries. We do not find that the work injuries of 1999-2000 brought about any measurable change in functionally symptomatic degenerative disc changes." (Ex. 8)

CONCLUSION AND ORDER

The decision of the Fall River Retirement Board to deny the application of Robert Bergeron for accidental disability retirement benefits is affirmed.

In order to prevail on her claim, the Petitioner must prove that he is totally and permanently unable to perform the essential duties of his job as the proximate result of a personal injury sustained, or hazard undergone, as a result of, and while in the performance of his duties under G. L. c. 32, s. 7 (1).

The application is denied because the Petitioner has failed to meet his burden of proof with respect to causation, and because the panel did not employ an erroneous standard when it answered in the negative with respect to causation.
The Petitioner bears the burden of proof to establish a causal nexus between an injury and his disability. Campbell v. CRAB, 17 Mass. App. Ct. 1018, 460 N.E.2d 213 (1984).

In order to meet his burden the Petitioner must prove one of two hypotheses: that his disability was caused by a single or series of work-related events, or that his employment exposed him to an "identifiable condition … that is not common and necessary to all or a great many occupations" that resulted in disability through gradual deterioration. Blanchette v. CRAB, 20 Mass. App. Ct. 479, 481 N.E.2d 216, 222 (1985).

Aggravation of a pre-existing condition to the point of permanent disability satisfies the natural and proximate requirement. Baruffaldi v. CRAB, 337 Mass. 495, 150 N.E.2d 269, 270 (1958).

The Petitioner advances the first hypothesis: that four incidents occurring in 1999 and 2000 aggravated to the point of total and permanent disability his pre-existing degenerative disc disease.

The panel concluded that the Petitioner is totally and permanently incapacitated from performing the essential duties of a custodian because of "limited spinal mobility, deconditioning, and myofascial pain." The panel opined that the Petitioner has progressive cervical and lumbar degenerative disc disease that was only transiently aggravated by the claimed work injuries. The panel concluded that the work injuries did not bring about any "measurable change in functionally symptomatic degenerative disc changes" and that the Petitioner has returned to his baseline condition of chronic neck and back and limb pain.

There is no basis on which to conclude that the panel employed an erroneous standard to reach its negative conclusion with respect to causation. The panel reviewed all medical records and a job description, took a history and performed a physical examination. The panel noted that the Petitioner had a twenty year history of back pain and a six year history of neck pain. The panel considered, and rejected, the aggravation theory of causation. The panel concluded that the claimed work injuries in 1999 and 2000 temporarily aggravated the Petitioner's condition, but did not permanently change his underlying baseline condition of chronic neck and back pain. The panel also acknowledged that in addition to the claimed work injuries, the Petitioner suffered neck and left arm pain in an August 1994 motor vehicle accident, and that he developed his current constellation of symptoms after a motor vehicle accident in January 1999 that caused him back pain, headaches, neck and left arm pain. This reasoning demonstrates the application of a correct standard by the penal to the issue of causation.

Because there is no evidence of use by the panel of an erroneous standard to the issue of causation, the panel's conclusion in binding on CRAB. Neither CRAB nor the Magistrate may substitute its judgment for that the panel in the absence of panel error. Malden Retirement Board v. CRAB, 420 Mass. App. Ct. 1, 298 N.E.2d 903 (1973)

This application for accidental disability retirement benefits is denied.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Maria A. Imparato
Administrative Magistrate

DATED: 6/12/08


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