COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

Suffolk, ss.

February 11, 2010

Docket No. CR-07-103

Tammy Donoghue Walker,


Petitioner

v.

Holyoke Retirement Board,

Respondent

Appearance for Petitioner:

Faye S. Wilson

72 Barrett Street, #316
Northampton, MA 01060

Appearance for Respondent:

Thomas F. Gibson, Esq.


2400 Massachusetts Avenue
Cambridge, MA 02140

Administrative Magistrate:

Maria A. Imparato, Esq.


CASE SUMMARY

The Board's decision to deny this application for accidental disability retirement benefits without convening a medical panel is affirmed because the Petitioner has failed to demonstrate that she was disabled on her last day of work by her claimed injuries. The Board may terminate the proceedings and deny the application if the member cannot be retired as a matter of law.


DECISION

Tammy Donoghue Walker filed a timely appeal under G.L. c. 32, s. 16(4) of the January 18, 2007 decision of the Holyoke Retirement Board (Board) to deny her request for accidental disability retirement benefits without convening a medical panel.
(Exs. 1, 2)

I held a hearing on October 29, 2009 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA.

I admitted documents into evidence. (Exs. 1 - 20) I marked the Respondent's pre-hearing memorandum "A" for identification, the Petitioner's pre-hearing memorandum "B" for identification, and informational documents from the internet submitted by the Petitioner "C" for identification. I did not hear any testimony. The parties offered argument on the record. There is one tape cassette of the hearing. The record closed on November 30, 2009 with the filing of closing arguments.

FINDINGS OF FACT

1. Tammy Donoghue Walker, d.o.b. 4/23/1962, worked as a Sergeant for the Holyoke Police Department from April 27, 1993 to November 14, 2004. She was involuntarily terminated on April 18, 2005 by Mayor Michael Sullivan. (Exs. 3, 8, 16.)

2. On July 14, 1998, Ms. Walker attempted to arrest a suspect in a hallway. The suspect threw Ms. Walker against the wall and hit her in the neck and shoulder with his lunch box. Ms. Walker was seen at Holyoke Hospital. (Ex. 4, p. 5; Ex. 7, p. 4; Ex. 8, pp. 4-5.)

3. Ms. Walker missed 36 tours of duty and then returned to full, unrestricted duty on September 8, 1998 after receiving a subacromial injection to the left shoulder on August 27, 1998. (Ex. 7, p. 4; Exs. 9, 13.)

4. On December 2, 1999, Ms. Walker reported pain from no specific incident. In March 2000, New England Orthopedic Surgeons did an arthroscopic assessment of the left shoulder subacromial space which revealed a minor partial-thickness undersurface cuff tear that was not felt to warrant repair. Ms. Walker's subacromial space was decompressed with good result. (Ex. 7, p. 4; Ex. 9.)

5. Ms. Walker missed 76 tours of duty and returned to full, unrestricted duty on April 17, 2000. (Ex. 7, p. 4.)

6. On July 25, 2003, while responding to an officer needing assistance, Ms. Walker was hit in the left shoulder by a door in the booking area of the police station. (Ex. 4, p. 5, injury report appended to Ex. 4; Exs. 9, 13.)

7. Ms. Walker attended physical therapy. She missed 25 tours of duty and returned to full, unrestricted duty on September 3, 2003. (Ex. 7, p. 5; Exs. 9, 13.)

8. From September 3, 2003 to August 21, 2004, Ms. Walker worked without incident. (Ex. 13.)

9. Ms. Walker was suspended from duty from August 28 through September 3, 2004, and from October 3 through October 9, 2004. She returned to work on October 10, 2004. Ms. Walker worked 15 tours of duty to November 14, 2004. She did not work again after November 14, 2004. (Ex. 13; Ex. 20, p. 15.)

10. Ms. Walker received psychotherapy from Barbara Zellan, LICSW, BCD, from September 15 to November 2004. (Ex. 6.)

11. In late October 2004, Ms. Walker noticed that she was not receiving dispatch calls over her radios which prevented her from keeping track of where her subordinates were in the field. Ms. Walker believed that Lt. O'Connell ordered dispatch calls be sent by email rather than radio. Ms. Walker informed the Chief of her belief. An investigation revealed a technical problem in Ms. Walker's radio equipment and Ms. Walker's accusation against Lt. O'Connell was deemed to be unfounded. (Ex. 20, pp. 17-19.)

12. On November 10, 2004, Lt. O'Connell assigned Ms. Walker to inside duty as the booking officer, citing concerns about Ms. Walker's job performance and emotional state. Ms. Walker thought the assignment was in retaliation for her allegation in the dispatching incident. (Ex. 20, p. 19.)

13. Ms. Walker called in sick on November 15, 16 and 17, 2004 with a migraine headache. (Ex. 13; Ex. 20, p. 19.)

14. Ms. Walker requested holidays off on November 20 and 21, 2004. She was granted a day off on November 21, but was issued a written denial of her request for November 20 because Ms. Walker's request would require the mandatory use of overtime to keep supervisory staff above minimum standards. (Ex. 20, p. 20.)

15. On November 18, 2004, Ms. Walker was examined for work-related stress by a physician who certified her ability to return to work the next day without restrictions. (Ex. 20, p. 20.)

16. Despite the denial of her request for a day off on November 20, 2004, Ms. Walker called in sick that day citing family issues. She took her scheduled day off on November 21, and called in sick on November 22, stating that she had re-injured her left shoulder. (Ex. 20, p. 20.)

17. Ms. Walker's primary care physician, Stephen J. Levine, M.D., evaluated her shoulder on November 22, 2004 for complaints of weakness and pain. Ms. Walker received an intra-articular injection of corticosteroid on that date. She was certified to return to work without restrictions on November 24, 2004. (Ex. 9, 12/1/04; Ex. 20, pp. 20-21.)

18. On November 23, 2004, Ms. Walker requested a meeting with the police chief, stating that she had been under stress that was manifesting as pain in her shoulder and neck area and that she felt the only way to relieve the stress was to leave the police department. (Ex. 20, p. 21.)

19. Ms. Walker met with the chief on November 24, 2004, reiterating her complaint of stress, citing the strain of internal investigations including the dispatch incident, her alleged mistreatment by a certain sergeant and her assignment to indoor duty. She requested to be placed on the 8 a.m. to 4 p.m. shift. The chief told her there were no openings on that shift, and that it was within the discretion of her supervisor to place her on indoor duty. (Ex. 20, pp. 7, 21.)

20. On November 29, 2004, Ms. Walker filed a report of injury claiming "stress related work." (Ex. 11.)

21. On December 1, 2004, Ms. Walker had a Rehabilitation Medicine Evaluation performed by Nicholas T. Spellman, M.D. Dr. Spellman noted that Ms. Walker's left arm was weak. Dr. Spellman noted his impression of left rotator cuff syndrome, rule out tear; and biceps tendinitis without evidence of rupture. He advised Ms. Walker to use a sling as needed, and to remain out of work until December 20, 2004. He prescribed home exercises, physical therapy and an MRI of the left shoulder to evaluate for rotator cuff tear. (Ex. 9, 12/1/04.)

22. On December 15, 2004, Ms. Walker was evaluated by Dr. Karas at New England Orthopedic Surgeons. Dr. Karas noted that Ms. Walker said that about six weeks previously, without "specific provocation," she experienced severe pain throughout the shoulder girdle, particularly severe in the periscapular area. Dr. Karas noted that the MRI did not demonstrate evidence of a rotator cuff tear, but did demonstrate some minor changes not inconsistent with her previous surgery. Dr. Karas opined that Ms. Walker's symptoms were a manifestation of an acute cervical radiculitis causing mild secondary stiffness about the shoulder. (Ex. 9, 12/15/04.)

23. An EMG/Nerve Conduction Study performed on December 23, 2004 showed minimal acute left C6-C7 radiculopathy. Dr. Spellman referred Ms. Walker for a cervical MRI to evaluate for left cervical root entrapment. (Ex. 9, 12/23/04.)

24. Cervical MRI performed on December 26, 2004 demonstrated a small right paracentral disc herniation at C5-6, abutting the cord without deforming it, and a minimal disc bulge at C4-5. (Ex. 9, 12/26/04.)

25. By letter of December 29, 2004, the police chief denied Ms. Walker's request for injured on duty status based on her injury report of November 29, 2004 for "stress related work." The chief based his decision in part on the opinion on Meditrol, Inc., the City's Injured on Duty Claims Administrator, that concluded the Ms. Walker "was not on duty when she sought medical treatment for her pain. She did not file an injury report defining the facts and circumstances of a new injury or re-injury, and according to her physician's report, her recent onset of pain was not precipitated by a new insult and the pain is most probably the result of cervical radiculopathy and not from her rotator cuff. … As such, I would recommend that Sgt. Walker's claim for injured on duty recognition in conjunction wit her recent inability to report for duty be denied." (Exs. 11; 13.)

26. The chief suspended Ms. Walker for five days for sick leave abuse. Ms. Walker appealed the suspension, and on December 27, 2004, the mayor affirmed the five day suspension and added another five day suspension without pay. (Ex. 20, p. 21.)

27. The mayor informed Ms. Walker in writing, "I am providing you a final opportunity to meet fully the duties and responsibilities of your job. Failure to do so will subject you to further discipline up to and including demotion or termination." (Ex. 20, p. 21.)

28. In December 2004, Ms. Walker filed three complaints against superior officers that were ultimately deemed to be unfounded. On January 18, 2005, the chief suspended Ms. Walker for five days for the filing of the unfounded complaints. (Exs. 20, pp. 22-23.)

29. On February 18, 2005, the chief denied Ms. Walker's request for reconsideration of his denial of injured on duty status. (Ex. 12.)

30. On February 25, 2005, Ms. Walker went to the police station to put in a request for time off. Ms. Walker picked up the schedule book and Lt. O'Connell pulled the book away from Ms. Walker. Ms. Walker filed an injury report on February 27, 2005, claiming "stiffness in left elbow and left shoulder" as a result of the "scheduling book being jerked from hands." Ms. Walker also submitted a memo about the incident to the chief. (Ex. 19.)

31. Ms. Walker's injury claim based on the scheduling book incident was denied by Captain Fletcher, who cited Ms. Walker's lack of a reason to be in the station that day because she was not on duty, and no eyewitness testimony or other evidence supported her claim. (Ex. 19; Ex. 20, pp. 25-26.)

32. On March 3, 2005, Melissa Glick, P.A.-C, filed a note indicating that Ms. Walker was to remain out of work until a follow-up with her primary care physician on April 4, 2005 due to "severe L[eft] shoulder pain." (Ex. 19.)

33. On March 7, 2005, the mayor held a hearing on Ms. Walker's appeal of the five day suspension for the unfounded complaints against superior officers. The mayor affirmed the suspension and added another fifteen-day suspension. (Ex. 20, p. 24.)

34. On March 29, 2005, Ms. Walker filed a civil action against the City of Holyoke citing discrimination, hostile work environment and retaliation claims. (Ex. 20, p. 26.)

35. On or about April 5, 2005, the chief suspended Ms. Walker for five days for threatening behavior towards Lt. O'Connell in the scheduling book incident, and for allegedly filing a false report of injury after that incident. (Ex. 20, p. 26.)

36. By letter of April 11, 2005, Dr. Levine noted that the EMG study of December 2004 showed minimal evidence for left C6-7 radiculopathy, but that a subsequent MRI showed no evidence of nerve root impingement. Dr. Levine noted that he had received a letter from Dr. Karas dated February 10, 2005 that stated, "'it is our medical opinion that Ms. Walker suffers from chronic left shoulder tendonitis with elements of complex regional pain syndrome involving the left upper extremity. It is our opinion that her condition is an exacerbation of her previous shoulder injury.'" Dr. Levine opined that Ms. Walker could no longer perform the duties of her job based on chronic left shoulder pain syndrome. (Ex. 5.)

37. Ms. Walker appealed her most recent suspension to the mayor. After hearing on May 12, 2005, the mayor affirmed the suspension and terminated her employment because he concluded that Ms. Walker had behaved inappropriately to a superior officer and made a false injury report. (Ex. 16; Ex. 20, pp. 26-27.)

38. On October 17, 2006, Ms. Walker filed an application for accidental disability retirement benefits, citing "injuries to left shoulder, resulting in tendonitis and shoulder impingement syndrome [and] injuries to neck resulting in radiculopathy, herniated and bulging disks in neck at C5-6 and bulging at C6-7," as a result of the events of July 14, 1998 and July 25, 2003. (Ex. 4, pp. 2, 5.)

39. Dr. Levine filed a statement in support of the application answering all certificate questions in the affirmative. Dr. Levine opined that Ms. Walker has a chronic pain syndrome initiated by a work related injury on July 14, 1998. Dr. Levine opined that Ms. Walker has significant emotional distress felt to be work related. He opined that Ms. Walker "suffers from physical problems as well as emotional difficulties associated with her responsibilities as a police woman." (Ex. 5.)

40. On January 18, 2007, the Board denied Ms. Walker's application without convening a medical panel because "[a]s a matter of law, the member is not entitled to proceed in her claim for accidental disability retirement as there was no personal injury established under G.L. c. 32, s. 7, no evidence of disability resulting therefrom, no establishment of employer liability under G.L. c. 41, s. 111F, and no appeal of same to Superior Court." (Exs. 1, 3.)

CONCLUSION AND ORDER

The decision of the Holyoke Retirement Board to deny the application for accidental disability retirement benefits of Tammy Donoghue Walker is affirmed. The application is denied because the Petitioner has not demonstrated that she was unable to perform the essential duties of her job on her last day of work as a result of the claimed injuries to her left shoulder.

The Petitioner sustained an injury to her left shoulder and neck in July 1998. She returned to full duty work in September 1998. On July 25, 2003, the Petitioner sustained an injury to her left shoulder. She returned to full duty work in September 2003. She worked without incident until August 2004 when she received a disciplinary suspension. She received another disciplinary suspension in October 2004. She returned to full duty work until November 14, 2004.

The Petitioner stopped working after November 14, 2004 because of a migraine headache for which she called in sick on November 15, 16 and 17, 2004. It was not until November 22, 2004 that the Petitioner had her left shoulder evaluated; she was cleared to return to work without restrictions on November 24, 2004.

In December 2004 the Petitioner told Dr. Karas that six months previously she experienced pain in the shoulder girdle without "specific provocation." That pain was ultimately thought to be caused by cervical radiculitis.

These facts indicate that the Petitioner was not unable to perform the essential duties of her job on her last day of work in November 2004 as a result of the shoulder injuries of 1998 and 2003, both of which injuries had apparently healed long before that date. It was not until she stopped working because of a migraine headache that the Petitioner claimed to have problems with her shoulder.

In the case of Vest v. CRAB, 41 Mass. App. Ct. 191 (1996), the Appeals Court affirmed the denial of accidental disability retirement benefits to a police officer who became disabled by hypertension four years after he stopped working for non-medical reasons. The Appeals Court held that in view of the fact that the Petitioner had performed the duties of his job until his last day of work, despite having non-disabling hypertension, he could not "claim accidental disability retirement status on the basis of a subsequently matured disability." Id., 41 Mass. App. Ct. at 194.

The instant Petitioner has therefore failed to meet a threshold requirement for an award of accidental disability retirement benefits by failing to demonstrate that she was unable to perform the duties of her job because of her shoulder injuries on her last day of work.

In processing a disability application, the Board is permitted at any stage of the proceedings to deny the application "if it determines that the member cannot be retired as a matter of law" under PERAC regulation 840 CMR 10.09(2).

The decision of the Holyoke Retirement Board to deny the application of Tammy Donoghue Walker for accidental disability retirement benefits without convening a medical panel is therefore affirmed.
SO ORDERED.


DIVISION OF ADMINISTRATIVE LAW APPEALS


Maria A. Imparato
Administrative Magistrate


DATED: 2/11/10