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Decision

Decision  Astacio, Luis v. Springfield Retirement Board (CR-17-521)

Date: 03/08/2019
Organization: Division of Administrative Law Appeals
Docket Number: CR-17-521
  • Petitioner: Luis Astacio
  • Respondent: Springfield Retirement Board
  • Appearance for Petitioner: Michael P. Cardaropoli, Esquire
  • Appearance for Respondent: Alfredo ViVenzio, Esquire
  • Administrative Magistrate: Judithann Burke
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Summary of Decision

The Petitioner, a former Traffic Signal Technician Level I in the City of Springfield Department of Public Works, has met his burden of proving that he was deprived of a proper medical panel evaluation, and, as such, that he is entitled to be evaluated by an all new regional medical panel for an assessment of his disability status.

Decision

The Petitioner, Luis Astacio, is appealing from the June 14, 2017 decision of the Respondent, Springfield Retirement Board (SRB), denying his application for Section 7 accidental disability retirement benefits.  (Exhibit 16.)  The denial letter was received by Petitioner’s counsel on June 19, 2017.  The instructions on the denial letter indicated that the Petitioner was to forward his appeal, within fifteen days, to the Contributory Retirement Appeal Board at 98 North Washington Street, Boston, MA 02114, a prior  address of the Division of Administrative Law Appeals.  The Petitioner’s attorney wrote a letter of appeal on June 20, 2017 and sent it to the address listed in the denial letter.  The Petitioner’s letter of appeal that was addressed to the then-current Division of Administrative Law Appeals at One Congress Street, Boston, MA 02114 was post-marked July 10, 2017 and stamped received on July 12, 2017.  I have determined that this is a timely appeal.  (Exhibit 17, original letter of appeal and envelope and DALA docket sheet.)   I held a hearing on August 20, 2018 in Room 305 at 436 Dwight Street, Springfield, MA.    

At the hearing, the Petitioner testified in his own behalf.  The Respondent presented no witnesses.  The hearing was digitally recorded.  The parties filed a joint pre-hearing memorandum on March 21, 2018 with agreed Exhibits 1-23.  The SRB filed a set of documents on August 6, 2018 in conformity with the Notice of Hearing.  These were duplicates of the exhibits forwarded with the joint pre-hearing memorandum and were not added to the record.  The parties also filed post-hearing memoranda of law.  (Attachment B-Petitioner; Attachment C-Respondent.)  The last post-hearing submission was received on September 29, 2018, thereby closing the record. 

FINDINGS OF FACT

Based on the testimony and documents submitted at the hearing in the above-entitled matter, I hereby render the following findings of fact:

  1. The Petitioner, Luis Astacio, born in 1956, began employment as a Traffic Signal Technician Level I in the City of Springfield Department of Public Work on March 1, 2010.  (Attachment A-Agreed Fact )
  2. The Petitioner’s essential duties involved the performance of skilled and specialized tasks related to installing, repairing and maintaining traffic signals and related equipment in accordance with standard practices and procedures under the supervision of a foreman.   Some specific duties set forth in the official job description include “lays (sic) repairs underground conduit lines, performing such tasks as laying and rodding ducts, pull (sic) or pushes signal cable, drills duct entrances.  (Exhibit 23.)
  3. On February 13, 2013, the Petitioner was sent to repair a traffic signal that had been knocked down at Bay and Tapley Streets in Springfield.  At approximately 8:05 AM, while he was retrieving tools from his truck, he slipped on ice in the parking lot of the Ryder Truck Company and injured his left hand and wrist.  The incident was witnessed by a co-worker.  (Id.)
  4. The Petitioner reported the incident to his supervisor and the supervisor completed a Notice of Injury Report.  (Id. and Exhibit )
  5. The Petitioner was treated at the Family Care Medical Center on February 13, 2013, and, as an outpatient, over the next several days thereafter.  X-rays revealed ulnar positive variance bilaterally 1 and a cyst formation in the ulnar lunate.  The diagnosis was “left wrist/thumb sprain.”  The Petitioner was provided with a wrist and thumb splint.  (Exhibits 5 and 6.)
  6. The Petitioner began to treat with Louis M. Adler, M.D. of New England Orthopedic Surgeons, Inc. on February 27, 2013.  He complained of sharp pain over the ulnar aspect of the left wrist as well as swelling and tenderness over the dorso-radial aspect of the wrist.  The doctor noted that there was limited range of motion in the left wrist.  Dr. Adler’s diagnoses were “sprain left wrist and possible ulnar impaction syndrome left wrist.”2  The Petitioner was placed in a short arm cast.  (Exhibit )
  7. On March 29, 2013, Dr. Adler reported that x-rays revealed a healed transmetaphyseal fracture.  (Exhibit 6.)
  8. The Petitioner underwent a course of physical therapy at Attain Therapy and Fitness in Springfield from April 4, 2013 through May 13, 2013.  (Exhibit 7.)
  9. On April 30, 2013, Physician’s Assistant Kevin MacPherson, of New England Orthopedic Surgeons, Inc., reported that the x-rays on that day revealed the slightest residuum of a longitudinal lucency.  The Petitioner complained of a little bit of residual discomfort.  PA MacPherson noted that the sprain and non-displaced fracture had fully healed and that he did not believe that the ulnar cyst would be a problem.  He indicated that the Petitioner could return to work on May 18, 2013.  (Id.)
  10. The Petitioner had been out of work since February 13, 2013.  He returned to work and remained out of work until May 20, 2013.   He collected G.L. c. 152 Workers Compensation benefits from February 19, 2013 through May 20, 2013.  (Id.)
  11. The Petitioner had left thumb and wrist discomfort after he resumed his duties.  There is a City of Springfield Supervisor’s Accident/ Incident included in the Employer’s Statement that accompanied his application for Section 7 accidental disability retirement benefits that reflects that on June 28, 2013, the Petitioner reported to his supervisor that he had lifted up a traffic signal and experienced pain in the area of the original injury on February 13, 2013.  (Exhibit 23.)
  12. On July 2, 2013, the Petitioner reported to PA MacPherson at New England Orthopedic Surgeons that he did not feel that he had the strength and endurance to continue performing his full duties.  X-rays on that day revealed a healed fracture, perfect articular surface, a little hypertrophic appearance in the ulnar styloid and some possible early osteoarthritic changes from many years of use of the distal radicular joint.  PA MacPherson injected the first dorsal compartment with 1 cc of Celestone and .5 cc of Marcaine “for comfort to quiet things down.”  He referred the Petitioner to occupational therapy for an aggressive strengthening program.   PA MacPherson also indicated that the Petitioner was cleared for modified duty with no more than a 10-15 pound weight restriction, not on a repetitive basis.  (Exhibit 6.)
  13. Modified duty was not offered by the Petitioner’s supervisors.  (Exhibit 23.)
  14. The Petitioner stopped working on or about July 10, 2013 and began collecting Chapter 152 Workers’ Compensation benefits again as of that date.  He has not returned to work.   (Exhibit 23.)
  15. The Petitioner began a course of physical therapy with Attain Therapy and Fitness again on July 29, 2013.  At that time, he noted that he was unable to keep up with the lifting requirements of his job.  (Exhibit 7.)
  16. On August 5, 2013 the Petitioner had an office visit with PA MacPherson.  The PA reported minimal improvement since July 2, 2013.  The PA also opined that the Petitioner was suffering from “possible ulnar impaction syndrome” in the left wrist.  He administered a corticosteroid injection.  (Exhibit 6.)
  17. The Petitioner continued in physical therapy at Attain Therapy & Fitness for several months.  He continued to complain of left wrist pain.  This physical therapy ended in or about mid-October 2013.  (Exhibits 6 and 7.)
  18. The Petitioner underwent a left wrist arthroscopy and ulnar shortening osteotomy on October 16, 2013.  (Exhibit 6.)
  19. On January 2, 2014, Dr. Adler noted that that his examination revealed some limitations in the Petitioner’s left forearm range of motion, but that the wrist and digital ranges of motion were excellent.  Dr. Adler indicated that the Petitioner would begin therapy for range of motion exercises and strengthening.  (Id.)
  20. Physical therapy notes dated January 13, 2014 reflect the Petitioner had reported pain with lifting activities.  He also indicated that he was unable to pull himself from a truck or to climb a ladder.   In addition, he indicated that he could not use his left hand as an assist to screw bolts.   (Exhibit 7.)
  21. The Petitioner continued to have complaints of pain.  (Exhibit 7.)
  22. On February 4, 2014, Dr. Adler reported that the Petitioner did not feel comfortable returning to work and that he did not feel safe at heights working on traffic lights.  Dr. Adler opined that, except for 65 lbs. of grip strength, the Petitioner had an excellent result following the October 2013 surgical procedure.  The doctor indicated that the Petitioner could return to work on a 25 lb. lifting restriction, continue with therapy that focused on strengthening and return to full duty as of their next visit, however, as of March 3, 2014, Dr. Adler restricted the Petitioner to light duty.  X-rays in March 2014 revealed a cyst or tenosynovitis 3 associated with the extensor tendon.  (Id. Exhibit 8.)
  23. The Petitioner underwent another course of physical therapy from early January 2014 through June 1, 2014 at Attain Therapy and Fitness.  He regularly reported pain with any activities that required heavy lifting and generalized wrist pain.  (Exhibit 7.)
  24. Physical therapy notes dated January 13, 2014 reflect the Petitioner had reported pain with lifting activities.  He also indicated that he was unable to pull himself from a truck or to climb a ladder.   In addition, he indicated that he could not use his left hand as an assist to screw bolts.   (Exhibit 7.)
  25. Hand surgeon Hervey L. Kimball, M.D. performed an independent medical evaluation of the Petitioner on November 25, 2014.  The Petitioner reported that his complaints were radial wrist pain radiating into the region of the thumb, stiffness, difficulty with grip and no significant paresthesis.  He reported that he had not been able to return to work due to his symptoms and concerns around re-injury.  Dr. Kimball noted that x-rays on that date revealed mild loss of joint space height at the radiocarpal articulation with mild spurring, mild degenerative changes at the triscaphe with mild spurring and plate fixation at the mild ulna. 

Dr. Kimball’s impressions were:

  1. Left wrist distal radius fracture following fall on 2/13/2013
  2. Lest wrist ulno-carpal impaction s/p wrist arthroscopy and ulnar shortening osteoplasty
  3. Left wrist de Qervain’s tenosynovitis, first compartment mass-post traumatic
  4. Left wrist mild radiographic degenerative changes
  5. Left chronic wrist and hand pain

Dr. Kimball indicated that the first three diagnoses were related to the February 2013 work injury.  He also noted that there was no evidence of clear pre-existing conditions.  (Exhibit 8.)

  1. Dr. Patrick Connolly performed an independent medical evaluation of the Petitioner on January 12, 2015.  He made note of the work-related incident of February 13, 2013 and briefly reviewed the subsequent clinical course.  At the time of the evaluation, the Petitioner complained of left wrist pain.  Dr. Connolly diagnosed chronic dorso-ulnar wrist pain and believed that the treatment had been reasonable, but unsuccessful.  Dr. Connolly opined that the Petitioner was capable of full time employment eight hours a day, but had limitations on the use of his left hand and wrist. (Exhibits 10 and 11.)
  2. Dr. Adler administered another corticosteroid to the Petitioner on May 18, 2015.  The Petitioner had reported increased pain at the base of his left thumb.  (Exhibit 6.)
  3. In a letter dated June 25, 2015 addressed to Petitioner’s then-counsel Frank Antonucci, Dr. Adler reported that the Petitioner still had not undergone a functional capacity evaluation.  The doctor reported that it was his opinion that the Petitioner’s distal radius fracture, his ulnar impaction syndrome and his de Quervain’s tenosynovitis were all causally related to the work injury he sustained on February 13, 2013 and that he had reached a point of maximal medical improvement regarding the fracture and the ulnar impaction syndrome.  Dr. Adler indicated that the Petitioner would benefit from a first dorsal compartment release for his de Quervain’s tenosynovitis.  Dr. Adler noted that the Petitioner should be restricted to lifting no more than 25 pounds and be restricted from climbing.  (Exhibit 11.)
  4. An additional injection was administered on July 28, 2015 after the Petitioner reported that the pain had returned to his left radial wrist.  (Id.)
  5. The Petitioner applied for accidental disability retirement benefits on October 6, 2015.  On Page 2(1) of the application he reported that the medical reason for his application was ongoing pain, discomfort and disability resulting from a work injury to his left hand/wrist, and, that he was unable to perform the essential duties of is job.  On page 2(5) he reported that when he returned to work in the spring of 2015, he could not perform the essential duties of his job.  (Exhibit 9.)
  6. In the Employer’s Statement that accompanied the Petitioner’s application for accidental disability retirement benefits, the Director and Deputy Director of the City of Springfield Department of Public Works, Christopher Cignoli and Vincent De Santis, respectively, stated the Petitioner would not be able to perform his essential duties if he was reasonably accommodated.  They also noted that there were no other positions that the Petitioner could hold at that time or in the future.  (Exhibit 23.)
  7. Single physician medical panel doctor James G. Nairus, M.D., an orthopedic specialist, evaluated the Petitioner on December 5, 2015.  He answered Question 1 on the certificate in the negative, thereby indicating that he did not find that the Petitioner was totally incapacitated from performing the essential duties of his job as a traffic signal technician.  Dr. Nairus did not answer Questions 2 and 3.  (Exhibit 1.)
  8. In his narrative report, Dr. Nairus indicated that, following the clinical examination and record review, his diagnoses were left distal radius fracture, which had healed, and ulnar impaction syndrome of the left wrist which had subsequently undergone surgical intervention. Dr. Nairus indicated that the prognosis was good.  Dr. Nairus rendered his assessment:

While Mr. Astacio has continued pain in the left wrist, the source of this pain is not clear objectively clear.  He had evidence of grade III chondromalacia 4 in the hamate bone of the left wrist.  It is on the ulnar aspect of the wrist and away from where his residual pain is on the radial aspect of the wrist.  The fact that he has had temporary relief of the symptoms from a first dorsal compartment injection for de Quervain tenosynovitis suggests that he has some degree of that.  However, the condition is not bad enough for Dr. Adler to have suggested surgical intervention for it.

Thus, even though Mr. Astacio has subjective symptoms of ongoing pain in the left wrist, I do not believe that these subjective complaints are supported by objective findings.  He has good range of motion and reasonable strength in the left wrist, and he is right-hand dominant.

Thus, after reviewing Mr. Astacio’s job description inclusive of his essential duties, I do not believe that he is physically incapable of performing those essential duties of his position, based on his objective findings.  To me, especially in reviewing Dr. Adler’s records in which he seemed to keep recommending increases in his ability to lift and Mr. Astacio returning to Dr. Adler and requesting that Dr. Adler further increase his lifting restrictions, and also Dr. Adler’s recommendation that he perform a functional capacity evaluation, which was apparently never done, I question his motive in returning to work.

(Id.)

  1. Charles Kenny, M.D. performed an independent medical evaluation of the Petitioner on January 6, 2016.  The Petitioner informed the doctor that he had trouble carrying things, lifting things and doing repetitive things with his left hand, and, that he did not feel he could climb or exert any force with the left hand because of pain and weakness. 

Following his clinical examination and review of the medical records, Dr. Kenney indicated that it was his opinion, based upon a reasonable degree of medical certainty, that additional treatment, including surgery, to treat the left hand and wrist pathology would be reasonable, necessary and causally related to the work accident of February 13, 2013.  The doctor’s diagnoses were chronic wrist and hand pain, fracture of the left distal radius, ulno-carpal impaction syndrome, de Quervain tenosynovitis, first compartment post-traumatic mass, status post arthroscopy and ulnar shortening osteoplasty, left wrist. 

Dr. Kenny concluded that the Petitioner was unable to perform the full spectrum of duties as a traffic signal technician, specifically, ladder climbing and exceeding 10 pounds of force with his upper extremity, and, that the injuries to his left and wrist were causally related to the incident on February 13. 2013.  Dr. Kenny opined that the Petitioner had not reached maximum medical improvement. (Exhibit 10.)

  1. Single physician medical panel doctor Richard N. Warnock, M.D., an orthopedic specialist, evaluated the Petitioner on January 20, 2016.  He answered Question 1 on the certificate in the negative, thereby opining that he did not believe that the Petitioner was totally incapacitated from performing his essential duties.  Dr. Warnock did not answer certificate questions 2 and 3.  (Exhibit 3.)
  2. In his narrative report, Dr. Warnock noted that his diagnoses were ulnar impaction syndrome left wrist, status post ulnar shortening osteotomy and de Quervain tenosynovitis left wrist.  Dr. Warnock summarized his impressions:

I reviewed the job description of a traffic signal technician.  I do not find any evidence that he is incapacitated from performing the essential duties of that job from his ulnar impaction syndrome, which has done very well.  He has excellent range of motion, completely healed osteotomy, and no complaints of pain around that portion of his wrist.  His current complaints revolve around a recurring de Quervain, which resolves with injections, but this clearly was not related to the original injury, as it was not present until much later.  This is not a disabling condition.

(Id.)

  1. Single physician medical panel doctor Ronald Marvin, M.D., an orthopedic specialist, evaluated the Petitioner on March 11, 2016.  He answered the three certificate questions in the affirmative, thereby indicating that he found the Petitioner to be totally and permanently incapacitated from performing his essential duties and that said incapacity was such as might be the natural and proximate result of the work injury on February 13, 2013.  (Exhibit 2.)
  2. In his narrative report, Dr. Marvin indicated that this was a somewhat complicated case.  In a later paragraph, the doctor indicated that the Petitioner did not feel that he could return to work because it requires a lot of fine manipulation and also some heavy work and lifting of heavy objects, climbing and generalized work to stabilize poles for the traffic lights.  He indicated that Dr. Adler placed a lifting restriction of thirty pounds on him, and, that the city could not accommodate him.  This was the reason he had not returned to work.

         Dr. Marvin noted that Dr. Adler had wanted to do a functional capacity evaluation for future vocational training, and that, to his knowledge, this had not been done.  As for the original injury, Dr. Marvin noted that it was more than likely a non-displaced fracture of the distal radius at the metaphysical aspect, which did not show up originally on x-ray and showed up later in subsequent x-rays.  Dr. Marvin set forth his assessment:

Dr. Adler did the surgical procedure consisting or the arthroscopic evaluation and then the ulnar shortening osteotomy, which did seem to give him some relief and better function.  He has now developed de Quervain’s tenosynovitis and he does continue to have symptomatology consisting of discomfort and generalized weakness and as noted from Dr. Adler’s measurements some weakness of gross strength on the left side compared to the right.

Because of the lifting restriction and these other symptoms, he has not been able to return back to work full time as a traffic signal technician, and, in my opinion, this is likely a permanent condition.

With a reasonable degree of medical certainty, the current disability that he exhibits is the result of the work-related incident, which was described that occurred on 2/13/13.

Therefore, based on the examination today, it is my opinion that the member is physically incapable of performing the essential duties of his job as described in the current job description and that said incapacity is such as might be the natural and proximate result of the personal injury sustained on account of which retirement is claimed. 

(Id.)

  1. The single physician medical panel members were supplied with the reports of the independent medical evaluations by Dr. Kimball in November 2014 and Dr. Kenny in January 2016 and asked for clarification of their original findings.  The letters requesting clarification are not part of the record.  Each of the panel members stood by his original findings and conclusions.  (Exhibits 12-14.)
  2. The Petitioner underwent a functional capacity evaluation on January 6, 2017.   The evaluation was performed by Occupational Therapist Michelle Lantaigne.  Her report revealed that the Petitioner could lift and/or carry objects up to 20 lbs. occasionally and lift or carry objects up to 25 lbs. frequently.  Ms.  Lantaigne also noted that the Petitioner  could sit for a total of six hours in an eight hour work day and that he had limited ability to push or pull.  The report indicated that he could occasionally climb, but never crawl.  It also noted limitations on reaching in all directions, handling gross manipulation and fingering with fine motor manipulation.  He needed to avoid extreme cold temperatures and all vibrations.  (Exhibit 18.)
  3. After reviewing the results of the functional capacity evaluation, Dr. Warnock issued an addendum on March 7, 2017.  He noted that the Petitioner had no symptoms whatsoever relevant to his ulnar side of his wrist where the original injury occurred during the January 2016 single physician panel examination.  Dr. Warnock acknowledged the numerous limitations due to wrist pain as referenced in the functional capacity evaluation.  Dr. Warnock indicated that he could not ascertain the origin of the Petitioner’s pain and noted the possibility of “non-work related” de Quervain’s tenosynovitis, “which is non-disabling and treatable,” or, the work-related ulnar impaction syndrome residuals.  Dr. Warnock indicated that a full re-examination may be appropriate since he had last seen the Petitioner more than a year prior to this report.   (Exhibit 20.)
  4. Dr. Marvin rendered his assessment of the results of the functional capacity evaluation and his addendum/clarification on March 8, 2017.  He indicated that the functional capacity evaluation did not change his original opinion.  He noted that the functional capacity evaluation had demonstrated that the Petitioner had significant limitation as far as maximum weight that could be placed on his arm between his knuckle and his shoulder and that he could not lift more than 25 lbs. as attempting to lift 30 lbs. or more caused sharp pain in the left ulna with compensatory functions necessary to complete this type of lift.  Dr. Marvin reiterated his certificate conclusions as set forth in is original panel evaluation.  (Exhibits 18 and 19.)
  5. Dr. Nairus issued an addendum to his original certificate on March 25, 2017.  He noted that the functional capacity evaluation showed that the Petitioner could occasionally lift or carry objects up to 20 lbs. and frequently, lift or carry objects up to 25 lbs.  The doctor indicated that these findings were surprising because the opposite results were the norm, and, he was skeptical.  Dr. Nairus stated that the January 2017 functional capacity evaluation did not accomplish all of the criteria that usually functional capacity evaluations accomplish (sic).  The doctor also noted that some of the findings of the functional capacity evaluation were “surprising and not consistent with his (Petitioner’s) condition or his diagnosis (sic) of a left distal fracture. 

Dr. Nairus concluded that the functional capacity evaluation was not helpful and that he continued to believe that the Petitioner’s subjective symptoms were significantly out of proportion to his objective findings.  He noted that the functional capacity evaluation did not change his opinion that the Petitioner is physically capable of performing his essential duties.  (Exhibit 19.)

  1. On June 14, 2017, the SRB denied the Petitioner’s application for accidental disability retirement benefits.  (Exhibit 16.)
  2. The Petitioner’s attorney received the SRB’s denial letter on June 19, 2017.  This letter directed him to send the appeal letter to an out dated DALA address.  After Petitioner’s then-counsel learned of the error and discovered the correct DALA address,  the Petitioner’s timely appeal was post-marked on July 10, 2017.  (Exhibit 17.)

Conclusion

In order to receive accidental disability retirement benefits pursuant to G.L. c. 32, § 7(1), the 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 a personal 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, 1 Mass. App. 420, 298 N.E. 2d 902 (2013).  Unless the panel employs an erroneous standard, fails to follow proper procedures, is improperly comprised, or unless the certificate is “plainly wrong,” the local board may not ignore the panel’s medical findings.  Kelley v. Contributory Retirement Appeal Board, 341 Mass. 611, 171 N.E. 2d 277 (1961).

After a careful review of all of the testimony and documents in this case, I have concluded that the Petitioner has met his burden of proving that he was deprived of a proper medical panel evaluation.  The narrative reports of the majority members are somewhat cursory and, appear to be plainly wrong.  Malden, supra and Kelley, supra.  Further, all of Dr. Nairus’ reports are far less than lucid.  (Id.)

The panel majority members have also applied an erroneous standard by virtue of failing to take into account all of the Petitioner’s essential, physically demanding duties and accounting for the fact that there are no modified duty offerings in the Petitioner’s department at the Springfield DPW.  The Petitioner could not come back to work with any imposed accommodations.  See Foresta v. Contributory Retirement Appeal Board, 453 Mass. 669 (2009).  See also Quincy Retirement Board v. Contributory Retirement Appeal Board, 340 Mass. 56 (1959).     

In his original report, Dr. Nairus, who had received all of the medical records referred to in this record, only referred to a small sample of these records in a very cursory manner.  He indicated that Dr. Adler had repeatedly tried to raise the Petitioner’s lifting limits, yet he failed to take into account that in late June 2015, Dr. Adler reported that the Petitioner had reached a medical end result and that he had a lifting restriction of 25 lbs.  In that June 2015 letter to Petitioner’s then-counsel, Dr. Adler made it clear that, while there was some improvement following the October 2013 surgical procedure, the Petitioner complained of pain from and after January 2014 after the October 2013 surgery.  Dr. Nairus reported that the Petitioner had healed from that surgery.  Further, Dr. Nairus appears to have been oblivious to the fact that the Petitioner’s job duties required him to lift weights in excess of 25 lbs. and involved other job-related movements such as drilling and crawling, all of which tax his left wrist, in order to carry out his essential duties.  Lastly, Dr. Nairus inappropriately questioned the Petitioner’s “motivation to return to work.”  

Dr. Nairus’s final clarification, following the functional capacity evaluation, is no more illuminating.  He continues to insist that the “subjective complaints” are not supported by the objective findings.  It is unclear what objective findings to which he refers.  He completely discredits the functional capacity evaluation.  It was not done or recorded in a manner that he would have expected.  Yet, he does not report what his expectations of a “proper” functional capacity evaluation are, or, what he would expect to learn from one. 

Dr. Nairus also ignores the reports of Drs. Adler, Connolly, Kimball, and Kenny, all of whom noted that the Petitioner had limitations related to lifting, climbing and other job-related activities.  His diagnosis is limited to “left distal fracture” notwithstanding all of the other impairing diagnoses rendered up to the time of the functional capacity evaluation. 

In his summary, Dr. Nairus indicated that he was standing by his original conclusion that the Petitioner’s subjective complaints were not supported by any objective findings, and, that he could return to work and perform all of his essential duties.  This assertion begs the question of whether, on occasion, repeated and documented subjective complaints may actually constitute enough objective evidence so as to be taken seriously. 

Lastly, Dr. Nairus’s final clarification report is bereft of any discussion as to what duties the Petitioner could actually perform, and, whether he could perform them with the limited use of his left hand.  Dr. Naris’s reports cannot be heavily weighed.   Quincy, supra.

Dr. Warnock, the other majority medical panel doctor who originally concluded that the Petitioner was not totally incapacitated from performing his essential duties, conducted a clinical examination during which he did not find the Petitioner to be symptomatic.  It does not appear form his original report as if Dr. Warnock considered the reports of Dr. Adler, Dr. Kimball, Dr. Connolly and Dr. Kenny, all of whom believed that there should be lifting restrictions imposed on the Petitioner.  To Dr. Warnock’s credit, he did acknowledge that the Petitioner had a long history of complaints of wrist pain, and, he did not indicate that these were unsupported by objective findings. 

Dr. Warnock’s undoing in his original narrative is that the de Quervain tenosynovitis was the sole cause of the Petitioner’s then-physical problems, and, that it bore no causal relationship to the original injury.  He failed to support his assertion.  Many inflammatory processes materialize months after a traumatic injury.  See footnote 3.

Dr. Warnock was more open-minded in his final clarification after his review of the functional capacity evaluation.  He indicated that he had not noticed the limitations as noted in the evaluation, but he acknowledged that limitations were found, although he had not seen it before.  Dr. Warnock was very honest in stating that it had been some time since he had seen and examined the Petitioner, and, that a re-examination was in order.  I construe this as least a partial step back from Dr. Warnock’s original conclusion on total disability.  As such, I find that there is no negative majority medical panel in this case.

The medical panel majority executed flawed original certificates for the reasons stated previously herein.  Those problems were compounded by the requests for clarification in order that the panel doctors review Drs. Kimball’s and Kenny’s reports, and, later, the results of the functional capacity evaluation.  Dr. Warnock is correct in his assertion that it has been some time since he evaluated the Petitioner.  The same is true for the other panel doctors.

Ergo, the decision of the Springfield Retirement Board is reversed.  This matter is remanded to said board for the convening of an all-new regional medical panel that will have access to all of the early records from and after February 2013 as well as all of the reports from Independent Medical Examinations and the results of the January 2017 functional capacity evaluation.  An accurate job description and notice of the employer’s policy of no light or modified duty is also essential.  The new panel shall conduct a thorough review of all of the medical records and test studies, the job description and the Employer’s Statement.  The panel shall conduct a thorough, medically and clinically   appropriate examination of the Petitioner and then render a certificate that is consistent with the principles of retirement law.  It would behoove the parties to organize the medical records in an orderly, chronological fashion to facilitate the panel’s review process.  

So ordered.

BY:

Division of Administrative Law Appeals,

 

 

Judithann Burke,

Administrative Magistrate

             

DATED:  March 8, 2019

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1 Ulnar positive variance describes where the distal articular surface of the ulna is more distal when compared to the articular surface of the radius.  It plays an important role in wrist pathology such as ulnar impaction syndrome and thinning of the triangular fibrocartilage complex.  See https://radiopaedia.org/articles/positive-ulnar-variance?lang=us

2 Ulnar impaction syndrome, also known as ulnar abutment syndrome or ulno-carpal loading, is a degenerative wrist condition caused by the ulnar head impacting upon the ulnar sided carpus with injury to the triangular fibrocartilage complex (TFCC).  The majority of cases occur in association with positive ulnar variance or increased dorsal tilt of the distal radius which may be congenital or due to a previous fracture.  See https://radiopaedia.org/articles/ulnar-impaction-syndrome?lang=us

3 De Quervain’s tenosynovitis is the inflammation of the sheath, or synovium, that surrounds the two tendons that can run between the wrist and the thumb.  It usually occurs after the thumb or wrist has been overused, particularly during repetitive activities that move the thumb away from the wrist.  It can also be caused by a direct injury to the wrist or inflammatory arthritis.  The condition may be temporary.  If it is not treated, it can permanently limit movement or cause the tendon sheet to burst.  See https://www.medicalnewstoday.com/articles/329104.php and https://family doctor.org/condition/de-quervains-tenosynovitis

4 Grade III chondromalacia at the hamate bone is the thinning of cartilage with active deterioration in the tissue at the irregularly shaped carpal bone in the hand that is found within the distal row of carpal bones, abuts the little and ring metacarpals, and is adjacent to the pisiform.  See www.health  

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