The Petitioner, a former School Nurse in the Millbury Public Schools, has met her burden of proving that she was deprived of a proper medical panel evaluation for her left shoulder disability. The regional medical panel majority members did not demonstrate a complete, accurate and thorough understanding of the physical demands inherent in her job description or consider potential future dangers to the student population, fellow faculty members or the Petitioner herself if she were to return to work and carry out her essential duties.
The Petitioner, Jill Carlson, is appealing from the April 3, 2017 decision of the Respondent, Massachusetts Teachers’ Retirement System (MTRS), denying her application for accidental disability retirement benefits. (Exhibit 1.) The appeal was timely filed on April 10, 2017. (Exhibit 2). I held a hearing on May 3, 2018 at the offices of the Worcester Registry of Deeds, 90 Front Street, Worcester, MA.
At the hearing, the parties’ joint pre-hearing memorandum was marked “Attachment A.” The memorandum included Stipulated Facts 1-6 and Agreed Exhibits 1-52. The Petitioner testified in her own behalf. The Petitioner also presented the testimony of her husband, Wayne Carlson, and, former Millbury Teachers’ Association President Ann Kach. The Respondent presented no witnesses. The hearing was digitally recorded. The record was left open for the filing by the parties of post-hearing memoranda of law. (Petitioner-Attachment B; Respondent-Attachment C.) The last of the filings was received on August 27, 2018, thereby closing the case record.
FINDINGS OF FACT
Based upon the testimony and documents submitted at the hearing in the above-entitled matter, I hereby render the following findings of fact:
- The Petitioner, Jill Carlson, born in 1958, began employment as a school nurse in the Junior/Senior High School in the Millbury Public Schools in November 1995. (Petitioner Testimony and Exhibit 5.)
- The Petitioner is left hand dominant. (Exhibit 10.)
- The Petitioner’s job description is part of the record. Her duties included dealing with all medical emergencies on the school campus involving students and fellow staff members. She was required to coordinate all medical care, maintain and organize all medical supplies, perform annual height screenings, lower students from their desk chairs to the floor in medical emergencies, i.e. seizures, assist students off of the floor in the school clinic, assist students into a wheelchair and push the wheelchair over grass, track surface, driveway and around the school building, write for extended periods of time, perform typing and data entry, perform CPR and the Heimlich maneuver, move students’ records and engage in rapid response with an emergency medical bag and a defibrillator. The Petitioner was required to lift objects weighing up to 40 pounds in addition to the aforementioned duties. She was responsible for the oversight and potential care of over 1000 people in the two junior/senior high buildings on the grounds. (Petitioner Testimony and Exhibits 5 and 6.)
- The Town of Millbury has one ambulance to service the entire town. (Petitioner Testimony.)
- The Petitioner incurred a left shoulder injury while walking through an airport in 2004. (Exhibits 28 and 29.)
- The 2004 injury required arthroscopic surgery with decompression on April 13, 2005. Dr. DeAngelis, the Petitioner’s primary care physician, performed a debridement of the labrum of the labrum and partial tear of the rotator cuff with a subachromial decompression. (Id.)
- The Petitioner recovered from the 2005 surgery and the injury and worked in her position as school nurse without issue or the need for accommodations until January 19, 2012, although she continued to have persistent trouble with left shoulder fatigue and rotator cuff inflammation from and after the 2005 operative procedure. She received intermittent subachromial injections for the inflammation. (Petitioner Testimony and Exhibits 28 and 29.)
- On July 9, 2011 the Petitioner informed her health care provider at UMass Memorial Medical Center that she experienced pain in her left shoulder and tingling in her left arm when her hand slipped while she was getting out of her tub and she came down on her elbow. The diagnosis was “shoulder contusion.” (Exhibits 30 and 31.)
- While in her office on January 19, 2012, the Petitioner injured her left shoulder when a student pushed through her office door after having been involved in an altercation, and, slammed her against the wall. (Id. and Exhibit 5.)
- The Petitioner was treated in the UMass Medical Center Emergency Department on January 20, 2012. X-rays taken on that day revealed no acute fractures or malalignment. Some degenerative changes were noted. The Petitioner was referred to orthopedist Nicola DeAngelis, M.D. (Exhibit 28.)
- Dr. DeAngelis ordered an MRI. The study was performed on February 9, 2012 and revealed supra and infraspinatus tendinopathy, with fluid in the bicep sheath with a longitudinal area that was split, along with some abnormal labral findings. (Exhibit 32.)
- The Petitioner saw Dr. DeAngelis again on February 13, 2012. He referred her to physical therapy and suggested that she consider an intra-articular injection.
- The Petitioner underwent regular physical therapy sessions at Greendale Physical Therapy off and on from February 12, 2012 to November 5, 2012. (Exhibit 46.)
- The Petitioner continued to follow up with Dr. DeAngelis for complaints of left shoulder pain, left elbow pain, pain with overhead activities and hand numbness. Dr. DeAngelis referred her to Dr. David Mazin for her radicular symptoms.
- The Petitioner saw Dr. Mazin on April 6, 2012 and complained of left shoulder pain and left arm numbness and tingling. She underwent a one-time left-sided intra-articular glenohumeral joint corticosteroid injection. She did not obtain any relief from the procedure. (Petitioner Testimony and Exhibit 33.)
- The Petitioner was seen by Walter Panis, M.D., a neurologist and physical medicine and rehabilitation specialist, on May 24, 2012. Dr. Panis reported that the exact nature of the Petitioner’s parathesis was unclear. He recommended an EMG study. (Exhibit 48.)
- The June 28, 2012 EMG study revealed carpal tunnel syndrome and was consistent with myofascial pain syndrome. (Exhibit 47.)
- A July 18, 2012 arthrogram of the Petitioner’s left shoulder revealed detachments of the inferior aspect of the anterior labrum, and superior sublabral recess, which was “undetermined between normal and variation versus a SLAP lesion.” (Exhibit 35.)
- The Petitioner underwent an Independent Medical Examination (IME) with Dr. Eugenio Martinez on August 21, 2012. His diagnoses were “chronic left shoulder joint pain, chronic left medial elbow joint pain and chronic left hand/finger numbness.” The doctor opined that she had sustained a labral tear as a result of the January 19, 2012 incident. He opined that the Petitioner could work full time with restrictions including limited lifting up to 10 pounds, pushing and pulling limited to 25 pounds, no lifting above shoulder height utilizing the left upper extremity, and avoidance of overhead reaching with the left upper extremity. He suggested that an aggressive course of physical therapy might be useful. (Exhibit 10.)
- The Petitioner continued to complain of pain and weakness, stiffness and decreased range of motion in the left shoulder. On September 6, 2012, Dr. DeAngelis recommended another course of physical therapy. He reported that she was not ready to return to work as a school nurse. He indicated that she would have difficulty performing CPR and that she needed to avoid overhead or repetitive type lifting activities. (Exhibit 36.)
- During the 2012-2013 school year, a second school nurse was brought into the Millbury Junior/Senior High School for a special program. This person was assigned to the “Imagine Room,” a space for special needs students who required intensive, specialized nursing care. This nurse was not available to the entire school population. (Petitioner Testimony.)
- The Petitioner stopped physical therapy on November 5, 2012 due to continued pain. (Exhibit 46.)
- The Petitioner was seen by orthopedist Stephen Desio, M.D., on November 9, 2012. He opined that her shoulder contusion had progressed into an adhesive capsulitis. He recommended that she undergo an examination under anesthesia, manipulation, and a possible arthroscopic release with debridement. Dr. DeAngelis concurred with the idea of operative intervention. (Exhibits 37 and 49.)
- On February 19, 2013, Dr. DeAngelis performed a left shoulder arthroscopy that included debridement, decompression, long head biceps tenotomy and manipulation under anesthesia. (Exhibits 38 and 50.)
- On February 25, 2013, the Petitioner commenced her third course of physical therapy, this time at South County Physical Therapy. She was discharged on September 24, 2013 due to continued pain and lack of progress. The physical therapist noted that the Petitioner’s goals were not met. (Exhibit 51.)
- The Petitioner continued to experience left shoulder pain, weakness and stiffness following her shoulder surgery. As a result, it was noted in UMass Memorial Medical records on August 19, 2013, November 21, 2013, January 30, 2014, and March 26, 2014, that she was likely to have a permanent partial disability with regards to her left shoulder and may never be able to return to work as a school nurse. (Exhibits 39-42.)
- The Petitioner continued to follow up with Dr. DeAngelis through 2013. She consistently reported that she continued to experience pain and weakness in her left shoulder and trouble with repetitive activities and lifting. (Exhibits 39 and 40.)
- On July 22, 2013 and again on August 9, 2013, the Millbury Public Schools conducted ADA interactive conferences at the office of the Superintendent of the Millbury Public Schools. The meetings were attended by School Business Manager Richard Bedard, Millbury/Junior Senior High School Principal Mandy Vasil, Millbury Teachers’ Association representative Gilda Hannon (July 22 only) Union President Ann Kach of the Millbury Teachers’ Association (August 29 only), the Petitioner, and her husband, Wayne Carlson. On July 22, 2013, the Petitioner stated that she was not able to return to work for the start of the 2013-2014 school year because of limitations on lifting, the inability to push a wheelchair, limited overhead left arm mobility, the inability to perform CPR and the Heimlich maneuver and numbness in her left hand. (Petitioner Testimony and Exhibit 43.)
- The Petitioner underwent a second IME performed by Dr. Martinez on August 14, 2013. The doctor noted that the Petitioner still continued to experience ongoing symptoms in her left shoulder despite having the February 2013 shoulder surgery. He opined that it was possible that she had developed a chronic pain syndrome and that, going forward, she may have permanent restrictions with regard to her shoulder. (Exhibit 11.)
- During the ADA interactive conference on August 29, 2013, the Petitioner stated that her restrictions had not changed. Bedard and Vasil mentioned the possibility of lowering the medicine cabinets and finding an aide to help with wheelchair movements. (Petitioner Testimony and Exhibit 43.)
- The record includes a one-page document entitled “Interactive Conference.” There is no date on the document but it appears to contain notes made by a party at the meeting who was not the Petitioner. The note contains remarks in cursive writing that include “job description?” “Last spring Jill specifically asked for job description.” Some of the notes pertaining to duties the Petitioner could not perform are illegible. Other notes under this topic include, “student passing out, BMI screening, no repetitive motion above her head.” In response to the question of whether there was an accommodation that would allow the Petitioner to perform all of her duties, the note said, “Jill, no, needs to be able to do things when they happen.” (Exhibit 44.)
- In a letter to the Petitioner dated September 9, 2013, Bedard memorialized the two ADA Interactive Conferences and indicated that he believed that the Petitioner was requesting an indefinite leave of absence. He informed her that the School District would review this request and get back to her. (Exhibits 8 and 43.)
- In a letter dated September 24, 2013, Millbury Junior/Senior High School Principal Vasil informed the Petitioner that she was being dismissed from her position as a School Nurse at the school pursuant to G.L. c. 71, §42 and Cleveland Board of Education v. Loudermille (no citation included.) Vasil noted that the Petitioner had exhausted FMLA and that the Millbury Public Schools had been working with her over the previous year and one half in an attempt to accommodate her in a manner that would permit her to perform the essential functions of her job. (Exhibit 9.)
- The Petitioner applied for Section 7 accidental disability retirement benefits on November 20, 2013. Her application was predicated upon her claims of left shoulder rotator cuff tendinitis, deconditioning and capsulitis. She alleged that these conditions were attributable to the work injury suffered on January 19, 2012. Attachment A-Stipulation # 2.)
- During the application process, the Millbury Public Schools forwarded a job description to the MTRS that was revised in December 2013 after the Petitioner’s employment had been terminated. Page 2 of the December 2013 job description included the requirement in paragraph 13 that the Petitioner be able to lift up to 40 pounds. The lifting requirement had not been specified by the employer during the Petitioner’s employment. The December 2013 job description is the job description that was forwarded to the 2014 regional medical panel. (Exhibits 6 and 43.)
- Dr. D’Angelis supported the Petitioner’s application in his Statement of Applicant’s Physician. He concluded that she could not perform “CPR/lifting/ overhead/repetitive activity [left] arm.” (Exhibit 14.)
- On December 12, 2013 the Petitioner saw Dr. DeAngelis again and complained of left shoulder pain, weakness and stiffness. The doctor reported that she was unable to perform CPR, could not lift anything over 5-10 pounds and needed to avoid repetitive activities. (Exhibit 41.)
- The Petitioner saw Dr. DeAngelis again on January 30, 2014 with complaints of increasing shoulder pain and arm pain. She also reported numbness and tingling in her hand when her arm was overhead. The doctor recommended another guided injection to her left shoulder. (Id.)
- The Petitioner was seen by Michael Ackland on March 3, 2014. Dr. Ackland opined that the work related injury on January 19, 2012 was a major cause of her left arm and left shoulder injury. He concluded that she was temporarily totally disabled. (Exhibit 52.)
- Charles Kenney, M.D. performed an Impartial Medical Examination (IME) of the Petitioner on August 23, 2014. He opined that the Petitioner had decreased range of motion and strength as well as ongoing pain in her left shoulder that was exacerbated with any physical activity. Dr. Kenney concluded that the Petitioner’s symptoms were related to her work injury and that she continued to be disabled. The doctor believed that the Petitioner had reached a medical end result. (Exhibit 12.)
- The Petitioner attended a pre-medical panel conference with MTRS attorney Robert Fabino on March 31, 2014. Mr. Fabino raised the question of accommodations by her employer. The Petitioner informed Attorney Fabino that she had never been offered a position with formal accommodations and that she had only attended an informal meeting with her employers, union representatives, and her husband wherein R. Bedard had mentioned lowering cabinets and getting her help pushing the wheelchair. The Petitioner told Attorney Fabino that she had informed Mr. Bedard that even with lowering cabinet to limit overhead work, she would not be able to respond to students or other faculty members, push wheelchairs, do repetitive motions, reach overhead, or perform CPR. (Petitioner Testimony, Wayne Carlson Testimony, Cash Testimony and Exhibit 44.)
- Single physician medical panel doctor Steven Sewall evaluated the Petitioner on April 28, 2014. He answered Questions 1 and 3 on the certificate in the affirmative, therein indicating that he found the Petitioner to be totally incapacitated from performing her essential duties and that the disability was such as might be the result of the injury sustained at work on January 19, 2012. Dr. Sewall answered Question 2 in the negative therein indicating that he did not believe her incapacity was permanent. (Exhibit 19.)
- In Dr. Sewall’s narrative report, he noted that the Petitioner was diagnosed with a flare up of cervical spondylosis of her neck with some left radiculitis. He reported that if the Petitioner were treated for her neck with therapy, heat, electrical stimulation, ultrasound, massage and traction, most of her symptoms could be resolved so that she could return to her regular work. (Id.)
- The examination with Dr. Sewall lasted approximately 15 minutes. He did not review the Petitioner’s job description with her. He asked her if she gardened and what kind of car she drove. The clinical examination included the doctor poking the Petitoiner with a paper clip. (Petitioner Testimony.)
- Single physician medical panel doctor Alan Solomon evaluated the Petitioner on April 30, 2014. He answered all three questions in the affirmative, therein indicating that he found the Petitioner to be totally and permanently disabled from performing her essential duties and that said disability was such as might be the natural and proximate result of the injury sustained at work on January 19, 2012. (Exhibit 25.)
- In his narrative report, Dr. Solomon noted that the Petitioner was physically incapable of performing her essential duties in the current job description since she was still in a level of pain of 4-7/10 and, when performing her job duties, she needed to be able to deal with the sudden and appropriate needs of other patients in possible “compromising situations and emergent situations.” “Until she is able to get her problem involving her left shoulder fixed, I would recommend that she have a more sedentary position such that she can function without putting other people in harm’s way.” (Id.)
- Dr. Solomon reviewed the Petitioner’s medical records and job description with her. (Petitioner Testimony.)
- Single physician medical panel doctor Hwa-Hsin Hsieh evaluated the Petitioner on May 22, 2014. He answered all three certificate questions in the affirmative, therein indicating that he found the Petitioner totally and permanently disabled from performing her essential duties and that said disability was such as might be the natural and proximate result of the personal injury sustained at work on January 19, 2012. (Exhibit 15.)
- In his narrative report, Dr. Hsieh noted that the Petitioner had developed adhesive capsulitis, a small rotator cuff tear, subachromial impingement, long held biceps tendonitis and early degenerative joint disease of the glenohumeral joint as a result of the January 19, 0212 injury. He also opined that the Petitioner would not be able to return to work as a school nurse due to her limitations. (Id.)
- The entire panel examination conducted by Dr. Hsieh lasted approximately 45 minutes. There was a discussion period during which the doctor went over the medical records and job description and conducted a clinical examination. (Petitioner Testimony.)
- In a letter dated July 30, 2014 from Dr. Sewall to Joseph Connarton of PERAC, the doctor indicated he was filing a supplemental report after having been asked for clarification as to why he did not feel the Petitioner had a permanent disability. The doctor indicated that the Petitioner should have regained full range of motion and full strength in her shoulder after the February 2013 surgery. He noted in the examination that the Petitioner felt a loss of motion in her neck and numbness in her hand and he attributed this to cervical radiculopathy. Dr. Sewall noted further that cervical radiculitis causes pain in the shoulder and that the Petitioner could get rid of her stiffness and shoulder pain if she underwent an aggressive course of physical therapy. (Exhibit 21.)
- In a letter to Mr. Connarton from Dr. Hsieh dated October 9, 2014, the doctor indicated that physical therapy to the Petitioner’s neck would not correlate with relieving the pain and stiffness in her left shoulder and that her condition would not be expected to improve sufficiently unless the labral tear was addressed other than through debridement. (Exhibit 16.)
- In a letter to Kate Hogan, Manager of Medical Services at PERAC, dated October 23, 2014, Dr. Solomon indicated that debridement of the labrum was an inadequate treatment for a stripped-away labrum and that the Petitioner’s condition would improve if her condition was addressed other than through debridement. The doctor noted further that he did not believe physical therapy for the Petitioner’s neck would improve the stiffness and pain in her shoulder because the main problem was most probably the GH instability created by the labral dysfunction. (Exhibit 26.)
- The Petitioner underwent an IME performed by David Heller, M.D. on October 30, 2014. The doctor’s diagnoses were:
Contusion by history
Biceps tendinitis, by MRI
SLAP lesion of the glenoid labrum, by MR arthrogram
Adhesive capsulitis, by examination
Myofascial pain syndrome
Dr. Heller noted that the Petitioner had been disabled since the accident of January 19, 2012 and could not perform CPR or respond quickly in an emergency. He added that, although there was a previous injury to the same shoulder, the condition was minor compared to the present problem. (Exhibit 13.)
- In a letter from Dr. Hsieh dated November 7, 2014, the doctor indicated that he had received a letter from MTRS counsel Robert Fabino on October 28, 2014 as well as the IME evaluation of Dr. Kenney. Dr. Hsieh stated that after his review of his earlier reports and the new information, his opinion as to the Petitioner’s disability from the work injury had not changed. (Exhibit 17.)
- In another letter to Ms. Hogan dated December 1, 2014, Dr. Solomon indicated that after reviewing Dr. Kenney’s report, he stood behind his original decision. He added that, if there is still remaining labral tissue in place at the 12-3 o’clock position after the debridement and tenotomy of the biceps, then his conclusions stand. He stated that, if the surgeon debrided/resected and removed the anterior labrum then there was no possibility of a labral repair and that the patient was permanently disabled. (Exhibit 27.)
- The MTRS scheduled a hearing on the Petitioner’s application for April 24, 2015. Prior to the hearing, Attorney Fabino contacted Petitioner’s counsel and indicated that the MTRS needed clarification from the panel doctors regarding accommodations offered by the Petitioner’s employer. (Exhibit 45.)
- In a letter to Mr. Connarton dated December 2, 2015, Dr. Hsieh stated that he had reviewed letters from both counsel as well as the Employer Statement noting the modifications of the school nurse position. According to the Employer’s Statement offered to the MTRS, the Petitioner was not required to perform CPR, lift or reach for medications, and, that arrangements would be made with another nurse to perform those duties. (This portion of the Employer Statement is not part of this case record.) Dr. Hsieh indicated that his opinion continued to be that the Petitioner was incapable of performing her essential duties. (Exhibit 18.)
- Dr. Sewall also sent a letter Mr. Connarton on December 2, 2015. He indicated that, assuming that the accomodat6ions provided to him by the MTRS were provided by the Millbury School System, he felt that the Petitioner was not disabled from her position as a school nurse. (Exhibit 22.)
- In early 2016, the Petitioner and the MTRS were informed by PERAC that Dr. Solomon was no longer performing accidental disability retirement evaluations and that he was unavailable for a clarification response. (Stipulated Fact #4.)
- The Petitioner was evaluated by John S. Ritter, M.D. on May 24, 2016. He answered Question 1 in the negative, thereby opining that the Petitioner was not totally disabled from performing her essential duties. (Exhibit 23.)
- In his narrative report, Dr. Ritter noted that his diagnosis was degenerative joint disease of the left shoulder. He also noted a diagnosis left shoulder strain that he believed should have resolved in 4-6 weeks following the injury, but was causally connected to the event on January 19, 2012. Dr. Ritter opined that the labral tear was degenerative in nature and that the 2013 shoulder surgery was primarily related to the pre-existing left shoulder degenerative joint disease and the natural and expected progression of the disease. Dr. Ritter reported that he had reviewed the medical records. Dr. Ritter averred that the Petitioner was able to perform CPR and the Heimlich maneuver and that she could return to her previous employment without putting herself or another party at unreasonable risk of harm, particularly in light of the accommodations that included no need to perform CPR and the Heimlich maneuver. (Id.)
- At the outset of the panel examination by Dr. Ritter, he informed the Petitioner that he had no time to review the records and that she would have to “bring him up to speed.” He informed the Petitioner that she had a sedentary job. Dr. Ritter did not conduct the clinical examination. He sat at a desk with his back to the Petitioner and made notes while his physical therapist, Carol, conducted the physical examination. (Petitioner Testimony.)
- In an addendum to his narrative report dated September 6, 2016, Dr. Ritter informed Mr. Connarton that Dr. Ritter he thought that the Petitioner’s accounts of her injuries as set forth in various medical records there had been inconsistent, and, that she had an old rotator cuff tear at the time of the incident. The doctor noted that an August 9, 2004 MRI of the left shoulder revealed supraspinatus tendinopathy and articular surface sprain with marked bicipital tendinopathy and partial tearing. There was an anterior labral defect indicating a tear. He noted further that x-rays of the left shoulder taken on January 18, 2005 showed degenerative changes and that a left shoulder on February 10, 2005 revealed a high-grade tear of the suprainatus tendon. (Exhibit 24.)
- The 2004 MRI study, and the 2005 x-rays and MRI study are not part of this case record.
- In the September 2016 addendum addressed to Mr. Connarton, Dr. Ritter reiterated his opinions on disability and causation that he set forth in his May 24, 2016 narrative report. (Id..)
- The MTRS denied the Petitioner’s application for Accidental Disability Retirement benefits on April 3, 2017 on the basis that she did not have a positive panel majority. (Agreed Exhibit 1.)
49. The Petitioner filed a timely appeal on April 10, 2017. (Agreed Exhibit 3.)
In order to receive accidental disability retirement benefits under G.L. c. 32, § 7, an applicant must establish by a preponderance of the evidence, including an affirmative medical panel certificate, that she is totally and permanently incapacitated from performing the essential duties of her position as a result of a personal injury sustained or hazard undergone while in the performance of 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 Appeal Board).” Malden Retirement Board v. CRAB, 1 Mass. App. 420 (1973), 298 N.E. 2d 902. 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. 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 was deprived of a proper majority medical panel evaluation with respect her left shoulder pathology and the application of her job duties.
The primary problem in this case is that the Petitioner was terminated from her employment in late September 2013 without having been offered any written accommodations concerning her job duties, particularly, the requirements to perform CPR, the Heimlich maneuver and myriad pushing and lifting requirements, all in “real time” in response to emergency situations. However, two of the original panel members, Doctors Sewall and Solomon, and, much later, Dr. Ritter, believed after viewing the December 2013 job description (that was not in place during the Petitioner’s time of employment) as well as some long after-the-fact set of “accommodations” that the Petitioner could return to her former position and perform her essential duties. It is very difficult to believe that the sole school nurse in the entire Junior/Senior High School, in a one ambulance town, who was responsible for the entire staff and student body, would not be required to perform life-saving CPR or the Heimlich maneuver in emergencies. It should be emphasized here that the Petitioner is left hand dominant.
In determining the “essential duties,” it is not enough to review or rely on the formal job description. The relevant job duties are those that the member is actually required to perform. Phillip Drew v. Holyoke Retirement Board, CR-03-166 (DALA Decision 04/19/06; CRAB Decision 08/07/07.)
Without a thorough understanding of the Petitioner’s actual job requirements, the panel majority could not possibly perform an adequate assessment of her condition and assess the related ability to perform the essential and life sustaining functions of a school nurse. As such, the ultimate findings by the panel majority on Question 1 can carry no weight. See Nicole Bergeron v. State Board of Retirement, CR-17-275 (Division of Administrative Law Appeals 08/10/2018; no objections filed to CRAB.)
The only credible and substantiated evidence in the record is that there were some verbal discussions between the Petitioner and her employers during the late summer of 2013 during which the questions of lowering cabinets and employing help with wheelchairs were broached. The Petitioner repeatedly informed her employers that the lowering of the cabinets and obtaining of assistance pushing wheelchairs (unspecified) would not be enough to enable her to perform her essential duties. Following these reiterations, she was terminated from employment.
Ergo, the three panel doctors, Sewall, Solomon and Ritter, all of whom concluded that the Petitioner could perform her job duties with the accommodations mentioned previously herein, did not have a complete or accurate understanding of what the Petitioner, with her noted limitations, might be required to do on a regular basis. (Dr. Hsieh, who was most thorough and consistent throughout, held fast.) Doctors Sewall, Solomon and Ritter all employed an erroneous standard.
These doctors did not exhibit an adequate understanding of her complete, accurate job description, including the frequency with which she needed to be involved with the physical assistance and emergency assistance to adults, older adolescents and younger teenage students.
Other problems in this case that may in and of themselves be enough to nullify this medical panel do not merit in depth analysis at this juncture. They will be briefly mentioned . Doctors Ritter, Sewall, and Solomon, after his second or third “clarification,” provide no explanation as to how she could be expected to carry out her essential duties despite her limited range of motion and chronic shoulder pain without reinjuring herself or jeopardizing the safety and welfare of anyone who came to be in her care. Moreover, Dr. Sewall was overly focused on some neck pathology in all of his reports despite the myriad medical records supporting a complaint of chronic shoulder pain. In one of his clarifications, Dr. Solomon referred to some surgical procedure that was never recommended to the Petitioner that “might” improve her condition depending on whether there is any tissue at a certain location on the shoulder. He was also critical of the 2013 procedure that was performed by Dr. DeAngelis without explanation. Dr. Ritter did not perform the clinical examination himself. He noted a review of 2004 and 2005 medical records that are not part of this case record, i.e. a 2004 MRI, 2005 x-rays and a 2005 MRI study.)
The panel majority reports contradict the findings of the IME reports and all of the reports of Dr. DeAngelis. Further they ignore the treatment process from and after January 19, 2012 whereby the Petitioner undertook physical therapy and underwent trigger point injections, all with little or no relief.
In conclusion, the decision of the MTRS denying the Petitioner’s application for accidental disability retirement benefits on the basis of her left shoulder pain is reversed. This case is remanded to the MTRS for the purpose of convening an all-new regional medical panel which will conduct a thorough review of all of the pertinent medical records and the complete, original, pre-December 2013 job description that was in effect during the Petitioner’s time of employment. If an official version is unavailable, as was the case when the Petitioner made several requests to procure it in 2013, the Findings of Fact herein may be extracted to reflect those job duties. The panel will also conduct a valid, complete physical examination of the Petitioner; make detailed clinical findings and, render a certificate and narrative report consistent with this entire record after employing the correct standards of law.
Division of Administrative Law Appeals,
DATED: October 12, 2018