| Date: | 09/13/2019 |
|---|---|
| Organization: | Division of Administrative Law Appeals |
| Docket Number: | CR-18-0480 |
The Petitioner has not met his burden of proving that that he was deprived of a proper single physician medical panel in late 2014. A majority of the panel doctors responded to the certificate questions in the negative. The Petitioner filed written complaints against the majority physicians well after the fact. He is not entitled to an accidental disability retirement allowance pursuant to G.L. c. 32, § 7 and § 94, “the Heart Law.”
Pursuant to G.L. c. 32, § 16(4), the Petitioner, Richard J. Chichester, is appealing from the August 10, 2018 decision of the Respondent, State Board of Retirement (SBR), denying his application for accidental disability retirement benefits pursuant to §§ 7 & 94 (the Heart Law.) (Exhibit 1.) The Petitioner’s timely appeal was received on August 23, 2018. (Exhibit 2.)
I held a hearing on August 5, 2019 in Room 320 at 436 Dwight Street, Springfield, MA. The Petitioner testified and argued in his own behalf. The SBR did not call any witnesses. The hearing was digitally recorded. The Respondent submitted a pre-hearing memorandum of law. (Attachment A and Exhibits 1-12 a-r.) The Petitioner proffered Exhibits 13 & 14 at the time of the hearing.
1. The Petitioner, Richard J. Chichester, born in 1956, was employed as a Correction Officer at the Berkshire County Sheriff’s Office (BCSO). He entered service on December 10, 2000 and last worked on April 5, 2014. (Exhibit 5.)
2. On April 6, 2014, the Petitioner was playing outdoors with his grandson when he started to have pain in his left arm and in his chest. He was off duty the next day and experienced more intense chest pain while playing a video game. He sought medical treatment. (Exhibits 10 and 11.)
3. On or around April 7, 2014, the Petitioner was examined at the Berkshire Medical Center where he reported chest pain. He was admitted to the hospital, and was transferred to the Baystate Medical Center the next day. On April 9, 2014 he underwent cardiac catheterization at Bay State Medical Center. (Exhibit 8.)
4. The medical record from the Bay State Medical Center reflects that the Petitioner’s mother died at age 76 as the result of a myocardial infarction. (Exhibit 11.)
5. The Petitioner did not return to work. (Exhibit 8.)
6. The Petitioner was seen by the Nurse Practitioner for his primary care physician on April 16, 2014. Alicia Emerson, N.P. noted that the April 9, 2014 cardiac catheterization had revealed 99% occlusion of the right proximal diagonal artery and that he was also noted to have moderate (60%) stenosis of the mid-right coronary artery to which no intervention was performed. At that time, N.P. Emerson noted that the Petitioner was not cleared to return to work until he had completed at least 2-3 weeks at cardiac rehabilitation. He would be following up with his primary care doctor. (Exhibit 8.)
7. On June 7, 2014, the Petitioner applied for accidental disability retirement benefits pursuant to §§ 7 & 94 (the Heart Law.) (Exhibit 3.)
8. Kristen Currie, M.D., the Petitioner’s Primary Care Physician, completed the Treating Physician’s Statement on June 23, 2014. She noted that he was totally and permanently incapacitated from performing his essential duties due to coronary artery disease and post-cardiac catheterization and that the incapacity was such as might be the natural and proximate result of the inherent hazards in his work as a Correction Officer. Dr. Currie completed this Statement at the Petitioner’s request, prior to his completion of the cardiac rehabilitation program. (Exhibit 4.)
9. In a Phase 2 Exercise Session Report, Ann Marie Sadlowski, RN, Program Director of the Berkshire Medical Center Cardiac Rehab Department, reported that the Petitioner complained of feeling worn out. The Petitioner told her that he initially thought the he was getting better, but more recently he had noticed “an increase” (sic). He did say that the previous c/o of chest burning several times per day for less than one minute had been resolved. Ms. Sadlowski noted that the Petitioner was active at home, also walking for 20-30 minutes, 2-3 days a week. She reported that the Petitioner had recently completed 10 sessions in the rehab program and that he had been tolerating a gradual increase in his exercise intensities and noted some increase in his overall endurance level. It was noted that the rehab team planned to gradually increase his workloads in an effort to improve his overall functional capacity. (Exhibit 12m.)
10. An exercise tolerance test performed on July 23, 2014, with cardiac imaging, showed no evidence of ischemia or previous infarction. LV function was normal and ejection fraction was 62%. (Exhibit 10.)
11. In a statement dated July 28, 2014 that was included in the Petitioner’s EILB request, Dr. Currie noted that the Petitioner did not wish to return to his job. She noted “no restrictions.” (Exhibit 8.)
12. The Petitioner retired on superannuation on August 1, 2014 with 13 years and 7 months of creditable service. (Attachment A.)
13. In the October 22, 2014 Employer’s Statement, Thomas Bowler, Sheriff and Department Head at the Berkshire County Sheriff’s Office reported that he had received a medical certification from Dr. Currie that indicated that the Petitioner was released to full duty without restrictions. (Exhibit 5.)
14. Single physician medical panel doctor Madhusadan Thakur, M.D. evaluated the Petitioner on December 8, 2014. Dr. Thakur answered all three certificate questions in the affirmative, thereby indicating that he found the Petitioner to be totally and permanently disabled from performing his essential duties and that said incapacity was such as might be the natural and proximate result of the inherent hazards undergone in the course of performing his duties as a Correction Officer. (Exhibit 10.)
15. In his narrative report, Dr. Thakur noted that the Petitioner did not have any recurrence of chest pain since the stent placement and that he was generally feeling well. Dr. Thakur noted that the Petitioner had smoked 35 years ago and that he was noted to have high blood pressure and elevated cholesterol in April 2014.
Dr. Thakur’s diagnoses were: non-ST elevation myocardial infarction and status post stent replacement, right coronary artery blockage, on April 9, 2014. The prognosis was listed as “fair.” Dr. Thakur’s “Final Conclusion” was:
It is my medical opinion that Richard Chichester, a 58-year old patient, presented to Berkshire Emergency Department with a diagnosis of non-ST elevation myocardial infarction and transferred to the Baystate Medical Center where he underwent cardiac catheterization and stent placement of his right coronary artery. His medications have been described above. I consider him disabled for his stressful job of a correction officer and noted that he has also further blockage of his mid-coronary artery, 60% blockage. I have recommended disability, and this disability is likely to be permanent in view of his coronary heart disease with status post MI and status post stent placement, and I have answered YES to Question One and YES to Question Two. He has no significant non-service related risk factor which can influence the genesis of atherosclerosis of coronary artery disease and also he has a history of hypertension. I have therefore concluded that the said incapacity is such as might be the natural and proximate result of the personal injury sustained or hazard undergone on account of which retirement is claimed, and I have answered YES to Question Three.
(Id.)
16. Single physician medical panel doctor Larry Weinrauch, M.D. evaluated the Petitioner on December 16, 2014. Dr. Weinauch answered Question 1 on the certificate in the affirmative, therein indicating that he found the Petitioner to be incapable of performing his essential duties. Dr. Weinrauch answered Question 2 in the negative, thereby opining that he did not believe that the Petitioner’s disability was permanent. (Exhibit 10.)
17. In his narrative report, Dr. Weinrauch correctly summarized the Petitioner’s medical and family history. He noted that the Petitioner was 5 feet 8.5 inches tall and weighed 235 lbs. He indicated that the Petitioner had undergone stent placement to the right proximal coronary artery, that single vessel disease with an in series lesion to the proximal right vessel was mild, and, there were non-significant lesions in the other coronaries that did not exceed 30%. Dr. Weinrauch noted that the only medical documentation in the record stating that the Petitioner was unable to return to work was a June 23, 2014 “Treating Physician’s Statement Pertaining to a Member’s Application for Disability Retirement.” The doctor indicated that, at the time of the treating physician’s report, the Petitioner had not reached an end result. Dr. Weinrauch summarized his findings:
A stress test on July 23, 2014 to 10:02 minutes to 14% METS was negative with a normal ejection fraction. Left ventricular ejection fraction was normal. He was able to participate in a cardiac rehabilitation program without problems. As the certificate of the treating physician predated the completion of the cardiac rehabilitation program and stress test, it would be helpful to have a statement with regard to his current status especially as there are no clinical notes suggesting that he be considered totally and permanently disabled.
On the basis of the evidence in this case, I have filled out the regional medical panel certificate to reflect my opinion that the documents demonstrate that he had been totally disabled due to his coronary arterial disease. Based upon the records reviewed and the job description I would consider this a temporary condition without additional clinical information.
(Id.)
18. Single physician medical panel doctor Steven G. McCloy, M.D. evaluated the Petitioner on December 30, 2014. He initially checked the “yes” box at Question 1, then crossed out his response and answered “no” to the question, thereby indicating that he had concluded that the Petitioner was not totally and permanently disabled from performing his essential duties. (Id.)
19. In his narrative report, Dr. McCloy noted that the Petitioner reported no cardiac risk factors and that there was no family history of coronary artery disease. Dr. McCloy noted that the Petitioner said he knows “that the job is stressful and that the average correctional officer is dead by the age of 59 to 60.” Dr. McCloy indicated that the Petitioner told him that, based on these statistics and on his symptomatology, he elected to retire from his job and that he was currently pursuing other vocational possibilities.
Dr. McCloy noted that the Petitioner was 71 inches tall and weighed 227 pounds. The doctor reported that the Petitioner’s blood pressure and pulse were unremarkable and that his lungs were clear. The heart showed a regular sinus rhythm without murmur, rub or gallop. Dr. McCloy reported that the Employer’s Statement reflected that the Petitioner had been released to full duty by Dr. Currie and that, therefore, no accommodations were offered or needed. Dr. McCloy summarized the medical records that he reviewed. The doctor summarized his findings on the question of disability:
1. Is the member mentally or physically incapable of performing the essential duties of his job as described in the current job description? No COMMENT: He has normal cardiac functioning. He has successful stenting of his coronary artery. He has participated in a cardiac rehabilitation program. Testing of cardiac function shows normal function.
The event of angina occurred off the job. Chichester believes that the job is stressful. He believes that he cannot continue to work at that job and chooses not to work. While his job certainly is physically demanding, the development of the angina syndrome cannot be attributed to that job with a reasonable degree of medical certainty. He has other significant non-job contributory factors including prior cigarette usage, elevated cholesterol, coronary artery disease and family history. It is his choice to withdraw from work based on his belief that the job is dangerous to his health (as he states on page 1.)
(Id.)
20. In a letter to Christopher LaFlamme, a staff member of the SBR, dated April 29, 2015, the Petitioner’s then-counsel Lan T. Kantany of Connor, Morneau & Olin, LLP in Springfield requested that the SBR postpone the scheduled April 30, 2015 review of the Petitioner’s disability retirement application because neither he nor any of his partners could be present. (Exhibit 12a.)
21. In a letter dated May 1, 2015, the SBR notified Attorney Kantany that it had voted to table his request until additional information was obtained. (Exhibit 12b.)
22. The Petitioner attended a hearing at the SBR on September 24, 2015. He described the events of the panel evaluation conducted by Dr. McCloy in December 2014. Exhibit 12d).
23. In a letter dated September 25, 2015, the SBR informed the Petitioner that his request was tabled so that the SBR might obtain medical clarification as well as request from the Public Employee Retirement Administration Commission (PERAC) a new single physician panel examination to replace the examination of Dr. McCloy. (Exhibit 12c.)
24. In a letter to SBR Attorney Salvatore Coco dated September 26, 2015, the Petitioner indicated that he was reiterating what he had told the SBR at the September 24, 2015 meeting. The Petitioner reported that he had initially had difficulty locating Dr. McCloy’s office in the two-building complex. Finally, he entered an office that had a sign “Axiom Sports Medicine.” There was no receptionist and the Petitioner started to walk to the back space of the office. The Petitioner reported that he heard the opening and closing of drawers. When he called out, a bearded man (Dr. McCloy) came around a corner and said hello. They went into a small room where the Petitioner was asked to take a seat. The doctor left to obtain something to write on, then returned with a piece of paper that the Petitioner believed was a restaurant menu, and said, “I guess this will do.” The doctor sat down opposite from the Petitioner.
The Petitioner noted that Dr. McCloy asked him what he was going to do at that juncture in his life. The Petitioner told the doctor that he was not sure and reported that the doctor began to tell him about his being in the church choir and helping in a soup kitchen. The Petitioner found this discourse odd. He then told the doctor the story of what had occurred two days before his heart attack. He described leaving for the night with a group of Correction Officers when a younger female team member asked his age. He told her he was 58. She replied, “Wow, did you know that the average CO is dead by their fifty-ninth birthday?”
The Petitioner reported to Attorney Coco that Dr. McCloy did not perform a physical examination at any time. He did not see a stethoscope or blood pressure monitor in the room. The only physical touching was the handshake at the end of the 20 minute meeting. (Exhibit 12d.)
25. The Petitioner’s hearing testimony on August 5, 2019 was consistent with the events described in the September 26, 2015 letter. (Petitioner Testimony.)
26. In a letter dated October 14, 2015, the Petitioner provided Attorney Coco with clarification questions that he wished to be posed to Dr. Weinrauch. The questions were focused on the issue of permanence. They included:
Is coronary artery disease reversible?
When will my coronary artery disease be cured and no longer a disability?
Is coronary artery disease permanent?
Since you do not mention the 60% stenosis in the right coronary artery, I also request clarification on the permanency of the stenosis:
When will the stenosis be healed?
Can you tell me that the stenosis will never detach from the arterial wall or rupture causing another heart attack?
Are not the 60% stenosis and the blockage which was stented, and the diagnosis of coronary artery disease all permanent by their nature?
I have been told by each physician and cardiologist I have seen that the stenosis will not shrink but may be “managed.” Do you agree with this statement?”
(Exhibit 12e.)
27. In a letter to Kate Hogan at PERAC dated May 20, 2016, SBR Attorney Salvatore Coco informed her that the SBR had voted on September 24, 2015 to request from PERAC a new single medical panel examination to replace the prior exam of Dr. Steven G. McCloy on the basis of the Petitioner’s account of Dr. McCloy’s examination. Mr. Coco enclosed the Petitioner’s written description of that examination.
In addition, Mr. Coco informed Ms. Hogan that the SBR had also voted to request a medical panel clarification from Dr. Weinrauch. Attorney Coco attached the clarification request. (Exhibit 12f.)
28. In the May 20, 2016 letter to Dr. Weinrauch, Mr. Coco put the following questions to Dr. Weinrauch pertaining to Question 2:
Regarding Your Response to Question 2:You indicated in your report that in your opinion Mr. Chichester “has been totally disabled due to his coronary arterial disease.” As noted on the Regional Medical Panel Certificate:
“A disability is permanent if it will continue for an indefinite period of time which is never likely to end though recovery at some remote, unknown time is possible. If the medical panel is unable to determine when the applicant will no longer be disabled, the (sic) must consider the disability to be permanent. However, if the recovery is reasonably certain after a fairly definite time, the disability cannot be classified.”
Bearing in mind this standard, the Board respectfully requests you indicate whether your original response of “No” is changed anyway. Additionally, should your original opinion remain unchanged, please provide a further explanation addressing, within a reasonable degree of medical certainty, in what time recovery would be anticipated.
The remaining questions posed by Attorney Coco pertained to Question 3, the causation and presumption issue. These are not issues in this appeal and the questions will not be reported here. (Id.)
29. In a letter to Dr. McCloy dated June 20, 2016, M. Jane Carrite, RN, PERAC Clinical Case Manager, asked the doctor to review the Petitioner’s letter of September 26, 2015 wherein he described his panel examination with Dr. McCloy to Attorney Coco. She asked that the doctor take the time to send PERAC his comments concerning the case. (Exhibit 12g.)
30. In his June 16, 2016 response to PERAC’s request for clarification, Dr. Weinrauch, the doctor answered the questions pertaining to Question 2 in the following manner:
Response: Given a stress test that was negative at 10:02 minutes or 14 METs with a normal ejection fraction and routine completion of a cardiac rehabilitation program, it would be reasonably certain that Mr. Chichester would be able to return to work. In the 18 months since my examination was completed there has been no medical documentation submitted to suggest that he continued to be disabled after the cardiac rehabilitation, and on what basis. Given the absence of additional information, including clinic notes, or updates after cardiac rehabilitation by his treating physician, as clearly stated in my initial letter, I am unable to consider him totally and permanently medically disabled.
(Exhibit 12h.)
31. Dr. McCloy addressed the question put to him by PERAC concerning the Petitioner’s complaints about the December 2014 medical panel evaluation in a letter dated July 5, 2016. In his first sentence, Dr. McCloy stated that, given that the examination had occurred 18 month earlier, he did not share the Petitioner’s crystal clear recall of that visit. He elaborated further:
The visit occurred on a day when I was working without my medical assistant. Her husband has died. Generally is it (sic) she who checks vital signs including blood pressure and pulse.
My recall is different from Mr. Chichester’s. My report is my report. It is supported by the medical record, which was quite clear and had data from numerous physical exams. There was sufficient information to answer the first question: Is the member mentally or physically incapable of performing the essential duties of his job as described in the current job description? The answer to that question being “no” there was no need to answer the remaining questions.
The purpose of the PERAC exam, as I understand it, is to answer the questions posed; for this I need information. That information arises from the interview, the medical documentation and the physical examination. For this member, I did what was needed to satisfy the PERAC evaluation. The length of the visit was sufficient to provide the information required and requested by PERAC. I am sorry that Mr. Chichester found the visit wanting. (Exhibit 12 j.)
32. In a letter to SBR attorney Melinda E. Troy dated October 7, 2016, John Parsons, Deputy General Counsel at PERAC, reported that PERAC had reviewed the available documents, and, that in Dr. Weinrauch’s response to the clarification, the doctor had again supported his responses regarding the stress test results and routine completions of a cardiac rehabilitation program. PERAC noted that Dr. Weinrauch concluded it was reasonably certain that the Petitioner could return to work.
Regarding the Dr. McCloy complaint and response, Attorney Parsons wrote:
Dr. McCloy submitted a report that documents his examination of Mr. Chichester, a thorough review of the medical records provided and support of his findings. Dr. McCloy found that he was not mentally or physically disabled of (sic) performing his essential duties as described in the job description. He reports his findings as follows:
He has normal cardiac functioning. He has successful stenting of his coronary artery. He has participated in a cardiac rehabilitation program. Testing of cardiac function shows normal function. The event of angina occurred off the job.
Based on our review of the available information, PERAC finds no reason to appoint a new physician to examine this applicant. Each of the panel physicians provided an understandable report documenting their findings.
(Exhibit 12j.)
33. In a letter dated September 15, 2016, SBR Senior Attorney Melinda E. Troy informed the Petitioner that PERAC was in the process of considering his request to convene another panel examination on his behalf. (Exhibit 12i.)
34. In a letter dated March 6, 2017, Attorney Troy informed the Petitioner that, if he was able to provide the additional medical records that Dr. Weinrauch suggested he needed in his 2016 letter of clarification, the SBR would forward those records to the doctor and await his review. (Exhibit 12k.)
35. The Petitioner was treated at Pittsburg Cardiology, PC in March 2017. On March 23, 2017, Nurse Practitioner Sharon Gittzus noted that he had undergone a stress test and developed chest pain. The EKG test done during the test revealed changes that met the criteria for underlying ischemia. The Petitioner was provided with a nitroglycerin tablet and his pain abated within two minutes. Exhibit 12l.)
36. The Petitioner also saw cardiologist Daniel Kusick at Pittsfield Cardiology on March 23, 2017. The doctor reviewed the results of the stress test. Based upon the results of the stress test, he changed the dosages of some of the Petitioner’s medications and suggested he use the nitroglycerin if he developed symptoms at home. The doctor recommended diet and exercise. (Id.)
37. In a letter to Dr. Weinrauch dated November 6, 2017, PERAC’s Mr. Parsons requested that the doctor review the enclosed March 23, 2017 stress test results from Pittsfield Cardiology and the Phase 2 Exercise Session report of 7/7/2014 from Berkshire Medical Center summarizing a series of rehabilitation visits between April and July 2014. Dr. Weinrauch also received the March 23, 2017 report of Dr. Kusick. (Exhibit 12m.)
38. Dr. Weinrauch responded in a letter dated December 4, 2017. He indicated that he had reviewed the additional medical records provided to him in early November 2017. The doctor reported that the July 2014 pieces of information gave no additional information to support permanent disability. He also noted that the notes from March 2017 did not support a permanent disability related to the Petitioner’s work as a Correction Officer, and, that no data was provided regarding medical care between the time of the original injury and the request for permanent disability. Dr. Weinrauch indicated that he was aware of the residual right coronary stenosis of 60% found at the original catheterization and that continued treatment was recommended. He also noted that the March 2017 stress test was suggestive of ischemia and that treatment was appropriately given.
In conclusion, Dr. Weinrauch stated:
In the 3 years since my initial examination was completed there has been
no medical documentation submitted to suggest that he continued to be disabled after the cardiac rehabilitation, and on what basis. Despite the additional information, I am unable to consider totally and permanently medically disabled by virtue of development of a cardiac disability after retirement this member who suffered from hyperlipidemia, hypertension, diabetes mellitus and obesity (as Class II or severe obesity) and prior smoking.
(Exhibit 12n.)
39. In a letter to Board Counsel Melinda Troy dated January 24, 2018, the Petitioner reported that when he had seen Dr. Weinrauch on December 16, 2014, the doctor said to him, “I just want you to know, I have been doing this “Heartbill” (sic) thing for 77 or 8 years now and I know it’s just a way for Sheriffs to get rid of their bad employees.” The Petitioner reported that he said, “Excuse me?” He indicated that the doctor responded that it was a way to transfer the cost of a bad employee to the state. (Exhibit 12o.)
40. In a letter dated January 25, 2018, Director Favorito notified the Petitioner that the SBR had voted to table his accidental disability retirement application. (Exhibit 12p.)
41. In a letter dated March 19, 2018, SBR Attorney Troy informed Kate Hogan at PERAC that the Petitioner had asked the Board to request that a new physician be appointed to replace Dr. Weinrauch on the medical panel. (Exhibit 12q.)
42. Deputy Director Parsons responded to Attorney Troy on June 18, 2018. He indicated that PERAC had reviewed all of the information. He noted that the Petitioner did not submit a written complaint regarding Dr. Weinrauch at the time of the examination and that PERAC did not receive any survey response regarding the December 2014 examination. Mr. Parsons indicated that PERAC had found no reason to replace Dr. Weinrauch on the medical panel. (Exhibit 12r.)
43. In a letter dated August 10, 2018, the SBR notified the Petitioner that it had voted to deny hos accidental disability retirement application. (Exhibit 1.)
44. The Petitioner’s timely appeal was received on August 23, 2018. (Exhibit 2.)
After careful consideration of the evidence presented in this case, I have concluded that the Petitioner is not entitled to prevail in this appeal. 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 he is totally and permanently incapacitated from performing the essential duties of her 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).” See 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). A medical panel’s certificate responses can be overcome only upon proof that the panel lacked pertinent facts or employed an erroneous standard. See Retirement Board of Revere v. Contributory Retirement Appeal Board, 36 Mass. App. Ct. 99, 106 (1994).
The Petitioner is not entitled to prevail in this appeal. The SBR, 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 that the panel majority doctors, Dr. McCloy and Dr. Weinrauch, failed to perform their respective functions properly by virtue of employing an erroneous standard or lacking knowledge of the Petitioner’s medical history, treatment history, or complete and accurate job description.
While the Petitioner took issue with the idiosyncrasies he perceived in Dr. McCloy’s behavior and communication style, the doctor wrote a lucid report that was based upon the medical records available to him. These records included that note from Dr. Currie in which she indicated that the Petitioner did not wish to return to work. Dr. Currie’s July 28, 2014 statement was underscored by the Petitioner’s own comments during the examination with Dr. McCloy when he mentioned that many correction officers are dead at or about the age that he was at that time. Dr. McCloy met with and spoke to the Petitioner and reviewed the medical records in detail. It is unclear what sort of clinical evaluation he may have conducted, but he did note the readings regarding heart rate and blood pressure upon which he based his opinion, and those were consistent with other data in the record.
In his June 2016 response to PERAC’s request for clarification, Dr. McCloy supported his initial responses by citing the evidence in the record, including data from numerous physical exams. Dr. McCloy noted that he had done what was needed to address the certificate questions. PERAC was satisfied with Dr. McCloy’s response to the request for clarification. Dr. McCloy utilized his discretion and weighed heavily the late July 2014 comments by Dr. Currie and the successful cardiac testing at that time. He concluded that the Petitioner was not disabled. There is no basis upon which to overcome Dr. McCloy’s responses. Revere Retirement Board, supra at p. 106.
Initially, Dr. Weinrauch concluded that the Petitioner was temporarily, totally disabled, or, i.e., that the Petitioner was not permanently disabled at the time he stopped working and filed for accidental disability retirement. He based this opinion on the facts that the Petitioner had not finished the cardiac rehabilitation program at the time Dr. Currie signed the Statement of Applicant’s Physician in late June 2014 and there was no medical evidence in any of the records that supported a total and permanent disability at that time. Dr. Weinrauch issued several clarifications. He reviewed the reports from the cardiac rehabilitation program in July 2014 along with the cardiac test results and the report of Dr. Currie from late July 2014. He never wavered in his position that the disability was not permanent. He did come to change his position on Question 1 and concluded that the Petitioner was not totally incapacitated disabled from performing his essential duties. In all of his clarifications, Dr. Weinrach’s opinions were clear and thoroughly supported by the record. By the time the doctor rendered his final clarification, he was aware of the treatment that the Petitioner underwent in Pittsfield in early 2017. He also noted that he was aware of the 60% stenosis in in the residual right coronary artery that was discovered during the April 2014 catheterization. This stenosis was not considered severe enough to merit surgical correction at the time of the April 2014 catheterization surgery and Dr. Weinrauch appears to be unconcerned about this finding. There is no evidence to suggest that he is wrong in this conclusion. He also noted that he was aware that the Petitioner was appropriately treated for ischemia and for the 60% residual right coronary stenosis. He concluded that there had been no medical documentation to suggest that the Petitioner continued to be disabled after the cardiac rehabilitation, and on what basis. He indicated that, despite the additional information, he was unable to consider the Petitioner totally and permanently disabled by virtue of development of a cardiac disability after retirement. PERAC was correct in choosing not to replace Dr. Weinrauch on the medical panel, notwithstanding the Petitioner’s complaints concerning the doctor’s comments at the ime of the December 2014 panel evaluation. Revere Retirement Board, supra at p. 106.
While Dr. Currie’s comment “no restrictions” in the late July 2014 report may be somewhat ambiguous, the Petitioner’s employer and Doctors McCloy and Weinrauch interpreted this as her rendering the conclusion that the Petitioner was not totally disabled even though he did not wish to return to work. There is no basis for me to second guess these interpretations and I may not substitute my judgment for that of the medical panel physicians. Malden, supra. and Revere Retirement Board, supra.
The Respondent is correct in its contention that the Petitioner last worked as a Correction Officer five (5) plus years ago and nearly five years have passed since he was examined by the members of the single physician medical panel. Ergo, although he may argue that his condition has worsened, he is not entitled to an accidental disability retirement allowance based on a condition that has matured subsequent to his departure from work. Accordingly, any claim of error or criticism of SBR procedure fails on that basis. See Vest v. Contributory Retirement Appeal Board, 41 Mass. App. Ct. 191 (1996).
Based on the foregoing, the decision of the SRB denying Richard J. Chichester’s application for Sections 7 and 94 accidental disability retirement benefits is hereby AFFIRMED.
So ordered.
Division of Administrative Law Appeals,
BY:
Judithann Burke
Administrative Magistrate
DATED: September 13, 2019
