THE COMMONWEALTH OF MASSACHUSETTS


Suffolk, ss, Division of Administrative Law Appeals

David Wanat,

Petitioner

v. Docket No. CR-07-343

Springfield Retirement Board,

Respondent

Appearance for Petitioner:

David W. Blakesley, Esquire

Pelligrini, Seeley, Ryan & Blakesley, PC
1145 Main Street,
PO Box 30009
Springfield, MA 01103-0009

Appearance for Respondent:

Alfred Vivenzio, Esquire

Scibelli & Vivenzio, PC
1120 Main Street
Springfield, MA 01103

Administrative Magistrate:

Judithann Burke

DECISION

Pursuant to G.L. c. 32 s. 16(4), the Petitioner, David Wanat, is appealing from the April 25, 2007 decision of the Respondent, Springfield Retirement Board, (SRB), denying his application for Section 7 accidental disability retirement benefits. (Exhibit 1). The appeal was timely filed. (Exhibit 2).

The parties submitted their respective cases on the documents which have been marked as Exhibits 1-10. An Exhibit List has been provided at page 6 of this Decision. The Petitioner also submitted a pre-hearing memorandum of law which was marked "Attachment A".

FINDINGS OF FACT

Based upon the exhibits provided by the parties in the above-entitled matter, I hereby render the following findings of fact:

1. The Petitioner, David Wanat, d.o.b. 1/07/1952, began employment in the City of Springfield Department of Public Works (DPW) on March 30, 1999. (Attachment A).

2. The Petitioner's job title was "construction handyman." His duties included manual labor such as: the upkeep, construction, repair and maintenance of facilities and other projects of municipal public works. He made repairs on facilities, roadways and other structures, pavement and stone linings, brick or block foundations, manholes and catch basins. He cleaned out clogged basins, culverts, drains, well holes and manholes, and he cleaned and flushed sewers. (Exhibit 7).

3. While on duty on December 16, 2002, the Petitioner developed acute pain in his right shoulder while he was attempting to open a water main. (Exhibits 6 and 10).

4. The Petitioner did not return to work after his shoulder injury. He applied for and was awarded workers' compensation benefits. He continues to receive workers' compensation benefits. (Exhibits 8 and 9).

5. When his symptoms persisted into late December 2002, the Petitioner consulted Martin Luber, M.D., an orthopedic surgeon. Dr. Luber's clinical examination revealed a painful arc symptom. X-rays at that time revealed a type II acromion, mild narrowing of the acromioclavicular joint and some degenerative cystic changes in the greater tuberosity consistent with degenerative cuff disease. Dr. Luber prescribed a Medrol Dose Pack and a subsequent course of Naprosyn. (Exhibit 10).

6. A March 13, 2003 MRI did not reveal any evidence of a rotator cuff tear, however, there was some undersurface tendonopathy of the supraspinatus tendon and cystic changes at the rotator cuff insertion shown on the x-rays. (Id.).

7. The Petitioner continued to have persistent rotator cuff pain. He did not return to work because there were no light duty positions available. (Id.).

8. The Petitioner applied for accidental disability retirement benefits in May 2006. On May 25, 2006, in conjunction with the application, Dr. Luber, who had not examined the Petitioner since July 23, 2003, completed his affirmative Statement of Applicant's Physician. (Exhibit 4).

9. On August 6, 2007, the Petitioner underwent an Independent Medical Evaluation by
another orthopedic surgeon, Dr. Aris Yannopoulos. The examination revealed forward flexion of 170 degrees and abduction of 150 degrees with full internal and external rotation. The doctor concluded that the Petitioner had a 10% permanent partial impairment of his right upper extremity as the result of impingement syndrome. He indicated that the Petitioner was restricted to lifting a maximum of 10 to 20 pounds with the right arm. (Exhibit 10).

10. The Petitioner saw Dr. Luber on August 17, 2006. This examination revealed clinical signs of the Petitioner's persistent subacromial impingement syndrome, including 155 degrees of forward flexion with moderate to severe impingement signs on the right, limited internal and external rotation, as well as mild acromioclavicular joint pain exacerbated by cross body adduction. X-rays on that date revealed a type III acromion morphology, along with narrowing and degenerative arthropathy of the acromioclavicular joint. Dr. Luber concluded that the Petitioner continued to have a 10% impairment of his right upper extremity
and a 10 pound weight restriction. (Exhibit 5).

11. Regional Medical Panel Doctors evaluated the Petitioner on February 9, 2007.
Doctors Victor Conforti, an orthopedic surgeon, Steven Silver, an orthopedic surgeon, and Stjepan Kereshi, a neurologist, answered the Certificate in the negative. (Exhibit 6).

12. In their narrative report, the panel doctors summarized the treatment for the Petitioner's injury and the related diagnostic studies. The panel's clinical examination revealed no obvious atrophy. The Petitioner had 170 degrees of abduction and forward flexion, 45 degrees of extension, 80 degrees of external rotation and 50 degrees of internal rotation. The panel found minimal tenderness over the supraspinatus tendon and no tenderness over the long head of the biceps. The impingement sign was equivocal. The doctor's reported their summary and conclusions: Diagnosis: This claimant's diagnosis is mild tendonitis and impingement of the right shoulder.

Work capacity: Based on the examination of the claimant, our experience treating such injuries, review of the history, symptoms and review of the available medical records, it is felt that this man is physically capable of performing the
essential duties of his job as a union laborer as described in the current job
description. The examination is felt to be inconsistent with the examinee's complaints. It is felt that he does have some mild chronic tendonitis but
that this injury is not permanent. In our opinion, the claimant's prognosis is felt to be satisfactory and that he is capable of performing the workload of the "construction handyman" position. (Id.).

12. The SBR denied the Petitioner's Sect. 7 application on April 25, 2007. (Exhibit 1).

13. The Petitioner filed a timely appeal. (Exhibit 2).

CONCLUSION

In order to receive accidental disability retirement benefits under G.L. c. 32 s. 7, an applicant must establish by a preponderance of the evidence, including an affirmative medical panel certificate, that he is totally and permanently incapacitated from performing the essential duties of his position as a result of an injury sustained or hazard undergone while in the performance of his duties. The medical panel's function is to "determine medical questions which are beyond the common knowledge and experience of the local board (or Appeal Board)". Malden Retirement Board v. CRAB, 298 N.E. 2d 902, 1 Mass. App. 420 (1973).

Unless the panel employs 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). The Petitioner is not entitled to prevail in this appeal. The SRB, DALA and CRAB cannot substitute their individual or collective judgments for that of the panel when it has performed its function properly. In this case, the Petitioner has not met his burden of proving either that: the panel failed to perform its function properly by virtue of employing an erroneous standard or lacking knowledge of the Petitioner's complete accurate job description. In responding to the certificate questions, the panel doctors had all of the pertinent medical reports and diagnostic studies. These consisted of the MRI and x-ray studies which did not reveal a rotator cuff tear or other serious injury. It is also significant that the record reflects the Petitioner did not seek medical treatment for his shoulder for a period of three full years before he applied for accidental disability retirement. The February 2007 medical panel outlined the Petitioner's symptoms and explained the doctors' diagnosis. The panel doctors understood the Petitioner's job duties. The panel doctors displayed an adequate understanding as to: the nature of the Petitioner's injury at work; his treatment history; and, his physical job requirements. The panel answered the certificate questions in a lucid manner and the doctors unequivocally stated that they found no disabling pathology notwithstanding the Petitioner's subjective complaints. Thus, weight must be afforded to the panel's conclusion that the Petitioner's right shoulder may be somewhat symptomatic, but not disabling.

Based on the foregoing, the decision of the SRB denying David Wanat's application for Section 7 accidental disability retirement benefits is hereby AFFIRMED.

So ordered.

Division of Administrative Law Appeals,


/s/ Judithann Burke
Administrative Magistrate

DATED: March 12, 2009

EXHIBIT LIST

Exhibit no. Document description

1 - April 25, 2007 SRB letter of denial
2 - April 30, 2007 letter of appeal
3 - April 18, 2008 waiver of a hearing
4 - May 25, 2006 Statement of Applicant's Physician
5 - August 17, 2006 report by Dr. Luber
6 - February 9, 2007 report of medical panel
7 - job description for "construction handyman"
8 - May 23, 2003 letter to Petitioner from Springfield DPW
9 - February 5, 2008 Workers' Comp. Conflict Disclosure Form
10 - January 17, 2008 report of Dr. MacEllis K. Glass