Kim Delinsky appeals the decision of the Teacher’s Retirement Board denying her application for accidental disability retirement in which she claimed that her left shoulder injury permanently rendered her physically incapable of performing her essential duties. I held a hearing on June 7, 2018 at the Division of Administrative Law Appeals (DALA), One Congress Street, Boston, Massachusetts, which I recorded digitally. Ms. Delinsky was the only witness who testified. I admitted twenty-four documents into evidence.1 I marked the joint prehearing memorandum as Pleading A. The record closed when the parties filed closing briefs by July 27, 2018.
Findings of Fact
Based on the testimony and evidence presented, and the reasonable inferences drawn from them, I make the following findings of facts:
- The Petitioner, Kim Delinsky, worked for the Lowell Public Schools as a special education/Grade 2-3 teacher from 2003 through November, 11, 2013. (Ex. XVII.)
- According to the City of Lowell’s job description, among the essential job duties of a special education teacher, grades K-4, position are the following:
- Plan instruction effectively.
- Plan assessment of student learning effectively.
- Monitor students’ understanding of the curriculum effectively and adjusts instruction, materials or assessments when appropriate.
- Create an environment that is positive for student learning and involvement.
- Maintain appropriate standards of behavior, mutual respect and safety.
- Make learning goals clear to students.
- Use appropriate instruction techniques.
- Be constructive and cooperative in interactions with parents and receptive to their contributions.
The physical requirements of the job included “bending, squatting, kneeling, light lifting, standing, [and] sitting.” Id.
Ms. Delinsky’s Injury and Treatment
- On October 1, 2013, Ms. Delinsky finished lunch duty and walked back to her office to collect her supplies. As she walked near a water fountain, Ms. Delinsky “slipped and fell on [her] knee” on what seemed to be a puddle of water. She tried to break her fall with her left [hand] because she was carrying a book with her right hand. (Delinsky testimony; Exs. XVII and XVIII.)
- An injury report dated October 11, 2013 described Ms. Delinsky’s left knee as the injured body part due to the fall. There is no mention of a left shoulder injury. (Ex. XVIII.)
- On October 11, 2013, ten days after the incident, Ms. Delinsky went to Lowell General Hospital Walk-In Medical Center. Her chief complaint at the time was her left knee. An x-ray of her knee showed no evidence of fracture or dislocation. (Ex. II; Delinsky testimony.)
- On October 21, 2013, Ms. Delinsky went to the school’s nurse, Robin McNeil, requesting first aid assistance for a knee abrasion. (Ex. XVIII.)
- On November 7, 2013, Ms. Delinsky returned to Lowell General Hospital complaining of left shoulder pain. The treating physician ordered modified duties until November 14, 2013 with “no lifting more than ten pounds, no pushing/pulling more than ten pounds, no lifting above shoulder height.” The physician referred Ms. Delinsky to Samuel D. Gerber, M.D., an orthopedic specialist. (Ex. II.)
- Ms. Delinsky had no injuries to her left shoulder prior to the 2013 accident. (Delinsky testimony; Ex. XVII.)
- On November 12, 2013, Dr. Gerber saw Ms. Delinsky for her left shoulder. He noted that her “left shoulder has a forward flexion of 110 degrees, abduction to 100 degrees, internal rotation to 90 and external rotation to 20.’’ He suspected a rotator cuff tear. He ordered magnetic resonance imaging (MRI), physical therapy, and prescribed Tramadol for the pain. The MRI showed an intact rotator cuff, but a “high grade partial thickness tear of the supraspinatus tendon.” (Ex. VII.)
- Pain in her left shoulder that limited Ms. Delinsky’s ability to function kept her out of work. She did not return to work after November 19, 2013. (Exs. VII and XVII.)
- From December 13, 2013 through January 16, 2014, Ms. Delinsky engaged in physical therapy at Pro Rehab, Inc. Her treatment plan called for therapy twice per week for four weeks with a reassessment at the end to examine her response to the treatment. She tolerated treatment well, but with minimal pain reduction. (Ex. III.)
- On January 9, 2014, Dr. Gerber reported that Ms. Delinsky’s left knee was stable. An MRI of her shoulder showed a “high grade partial thickness tear of rotator cuff.” Ms. Delinsky did not want to consider injections at the time to relieve her shoulder pain and was reluctant again on a February 24, 2014 visit. (Ex. VII.)
- On February 18, 2014, Brian Jolley, M.D., examined Ms. Delinsky upon Dr. Gerber’s request for a second opinion. He recommended a cortisone injection into the shoulder to alleviate the pain and physical therapy to better strengthen her shoulder. (Ex. IV.)
- Ms. Delinsky applied for workers’ compensation on February 28, 2014. She received a settlement in the amount of $14,926.13. (Ex. XVIII.)
- On February 14, 2014, Dr. Gerber recommended surgery on her left shoulder “since her pain has not resolved with conservative treatment for four months.” (Ex. VII.)
- On April 23, 2014, Dr. Gerber diagnosed Ms. Delinsky with possible adhesive capsulitis (frozen shoulder). He again discussed corticosteroid injections, but Ms. Delinsky still did not want to consider them. (Ex. VII.)
- On June 23, 2014, Dr. Gerber recommended manipulation under anesthesia of her left shoulder. On this visit, Ms. Delinsky had “[s]ome limitation of her left shoulder with forward flexion to 140, abduction to 95, internal rotation to 80 and external rotation to 35 degrees.” (Ex. VII.)
- On July 25, 2014, Ms. Delinsky had surgery consisting of shoulder arthroscopic surgery, manipulation under general anesthesia, capsular release, debridement, acromioplasty, and rotator cuff surgery.2 The surgical notes mention that the surgery was meant to address Ms. Delinsky’s shoulder pain and her limited range of motion. (Exs. 1 and VII.) A subsequent MRI showed that the rotator cuff had been repaired. (Ex. VII.)
- On September 16, 2014, Sarah F. Gilbert, M.D., performed an independent medical examination (IME) as part of Ms. Delinsky’s workers’ compensation case. When examining Ms. Delinsky’s left shoulder, Dr. Gilbert observed that “[w]hen I attempt any passive range of motion, she complains of severe pain, and I am maximally able to extend her 40 degrees.” Dr. Gilbert opined that Ms. Delinsky needed physical therapy on the shoulder or she would develop frozen shoulder. She noted that Ms. Delinsky was having difficulty making out-patient physical therapy appointments because she needed someone to drive her, and she did not “meet the requirements for home PT because she is not theoretically homebound.” Dr. Gilbert thought that Ms. Dubinsky’s disability might be permanent or that it would continue for an indefinite period. (Ex. VIII.) Ms. Delinsky was aware that she needed physical therapy after her surgery in order to avoid having a frozen shoulder. She performed some physical therapy at home, but found that she experienced considerable pain in doing so. (Delinsky testimony.)
- On November 28, 2014, Ms. Delinsky received a “Depo Medrol injection and 1 cc of 1/2% Sensorcaine to her left shoulder.” She was able to move her shoulder “in a much improved fashion” afterwards, according to Dr. Gerber. He recommended that she follow up with stretching and physical therapy. (Ex. VII.)
- Following the surgery, Ms. Delinsky had complained of pain being “an eight on a daily basis with medication and a ten without medication.” After Dr. Gerber’s “lengthy discussions [with her] about options,” he referred her to a pain management specialist. (Delinsky Testimony; Ex. VII.)
- From January 23, 2015 through May 29, 2015, Ms. Delinsky received physical therapy at Therafit, a sports and aquatic physical therapy facility. She had “limited exercise tolerance.” (Ex. X.)
- On January 26, 2015, Ms. Delinsky received a functional capacity evaluation from Gail Breeze, MS, OTRL (a registered, licensed occupational therapist), who determined Ms. Delinsky’s capacity and appropriateness for a work hardening program. The testing of her left shoulder showed that “[f]orward/flexion equals 70 degrees, abduction equals 80 degrees, external rotation equals 45 degrees, [and] internal rotation equals 60 degrees.” Ms. Breeze concluded Ms. Delinsky did not “demonstrate functional capacities adequate to perform full duty as a Special Education teacher.” She described the job of a special education teacher as sedentary, but concluded that Ms. Delinsky was performing “below a sedentary level of physical demand with regard to load handling.” She also noted that Ms. Delinsky demonstrated “limited tolerance to work postures/movements such as squatting, kneeling, reaching with the left upper extremity at shoulder and overhead levels.” She found that Ms. Delinsky did not give her full effort during the evaluation due to her pain. Ms. Breeze recommended a pain management program to maximize functional capacities. (Ex. V.)
- During Ms. Delinsky’s April 7, 2015 visit, Dr. Gerber noted a lack of improvement in the range of motion of Ms. Delinsky’s left shoulder. Indeed, her examination that day showed a considerable decline in flexibility since Dr. Gerber had first treated her. She showed “forward flexion to 45 degrees, abduction to 45 degrees and internal rotation to 15 degrees and external rotation to 5 degrees.” Dr. Gerber discussed with her the potential benefit from manipulation under anesthesia and arthroscopic capsular release to address Ms. Delinsky’s significant loss of motion. (Ex. VII.) Ms. Delinsky recalls that the doctor told her that a second surgery might improve her range of motion, but might also make things worse. One possible negative consequence would be that her arm could break during the manipulation. She does not recall whether he told her that the procedure might bring pain relief. (Delinsky testimony; Ex. XIV.)
- On April 14, 2015, Ms. Delinsky underwent an independent medical examination by Richard Warnock, M.D., an orthopedic surgeon, at the behest of the City of Lowell, which is sell-insured. Ms. Delinsky informed him that Dr. Gerber had recommended a second surgical manipulation of her shoulder. He observed that “[i]t is not clear why this is indicated, since he had already done that, and it did not significantly improve her condition.” Dr. Warnock thought Ms. Delinsky would be at a medical end result if she declined surgery. He ultimately concluded that:
Ms. Delinsky has demonstrated a very poor tolerance for therapy and is extremely guarded. While another manipulation under anesthesia would be reasonable, it is unlikely that she will improve substantially from this procedure. She guards and withdraws, and I do not feel that there was a dramatic firm endpoint to the examination. Her major complaint is pain and sensitivity, and it is unlikely that a manipulation is going to resolve all of that.
(Ex. I.) Thereafter, the City of Lowell declined to pay for a second surgery because Dr. Warnock did not think she would benefit from it. (Delinsky testimony; Pleading A.)
- Ms. Delinsky decided against a second surgery because there was a risk that her situation could be made worse. (Delinsky testimony.)
- Anil Kumar, M.D. and Demian Mousad, M.D., from Advanced Pain Management treated Ms. Delinsky from January 18, 2016 through May 12, 2016. Ms. Delinsky received Oxycodone, Percocet, and Dilaudid on separate occasions, but reported extreme nausea and vomiting after taking the medications. (Ex. IX.)
- On January 29, 2016, Ms. Delinsky saw Roberto Feliz, M.D., of North Andover Pain Management. Dr. Feliz opined the “pain can be secondary to the development of posttraumatic small fiber neuropathy/neuropathic pain.” (Ex. XI.)
Ms. Delinsky’s Application for Accidental Disability Retirement
- Ms. Delinsky applied for Accidental Disability Retirement on May 19, 2014. (Ex. XVIII.)
- On her application, Ms. Delinsky listed the medical basis for her claim of disability as “a high grade partial rotator cuff tear of left shoulder, lower back pain, shooting pain down [her] legs, depression and anxiety, left knee pain and right major shoulder pain due to overuse.” (Ex. XVII.)
- The Employer’s Statement of the school system confirmed the physical requirements of Ms. Delinsky’s job, namely that “bending, squatting, kneeling, light lifting, standing, sitting are all required.” (Ex. XVIII.)
- Ms. Delinsky was examined and reexamined by a medical panel composed of three orthopedic surgeons: John Chaglassian, M.D. George Hazel, M.D. and Suzanne Miller, M.D. (Exs. 1-6.)
- Dr. Chaglassian conducted his initial examination on January 8, 2015. He observed that Ms. Delinsky had “significant restriction of motion of the shoulder with flexion 50 degrees with pain, abduction 45 to 50 degrees, extension 30 degrees, external rotation 60 degrees, internal rotation 90 degrees and adduction 50 degrees.’’ He opined that Ms. Delinsky was physically incapable of performing the essential duties of her job; that that incapacity was likely to be permanent; and that it might be the natural and proximate result of her 2013 injury. Dr. Chaglassian noted “it is very likely that she has reached maximal medical improvement and medical end result with poor prognosis.” He thought that additional physical therapy would benefit her, but did not believe she would recover full range of motion. (Ex. 1.)
- Dr. Hazel conducted his initial examination on January 16, 2015. He concluded that Ms. Delinsky’s injury was permanent and that she was likely to be unable to perform the essential duties of her job. He thought Ms. Delinsky’s condition was causally related to her October 2013 injury. Dr. Hazel agreed the treatment she had undergone was appropriate and did not believe injections would make much of a difference. He disagreed with Dr. Gerber’s assessment of Ms. Delinsky’s shoulder and lack of progress. He noted that Dr. Gerber had found Ms. Delinsky’s shoulder to be “intact with no swelling, tenderness or deformity,” while he had found her shoulder demonstrated “deficits in range of motion, strength, and pain.” He believed there was “no fairly definite time [for] recovery.” (Ex. 3.)
- Dr. Miller conducted her initial examination on January 22, 2015. She stated that while Ms. Delinsky was presently incapable of performing her job duties and her incapacity was related to her 2013 injury, the incapacity was unlikely to be permanent. Dr. Miller thought Ms. Delinsky’s frozen shoulder needed further treatment. She estimated ten to twelve months for recovery and suggested a re-examination in June or July, 2016. (Ex. 5.)
- The Board requested a reexamination of Ms. Delinsky from all three doctors to update their examination and opinions, involving review of the most recent medical records. (Exs. 4-6.)
- On February 4, 2016, Dr. Chaglassian reexamined Ms. Delinsky per the Board’s request. His opinion remained the same. He was aware that Dr. Gerber had recommended a repeat of the shoulder manipulation surgery. He continued to think that Ms. Delinsky was “disabled from performing all the requirements of her job,” and he did not believe “additional treatment [would] improve Ms. Delinsky’s work capacity.” (Ex. 2.)
- Dr. Hazel reexamined Ms. Delinsky on February 19, 2016. He read Dr. Gerber’s notes thought June 2015, and thus should have been aware that the doctor had recommended a second surgery, although he did not mention this recommendation. His opinion that Ms. Delinsky was permanently disabled did not change. Dr. Hazel thought Ms. Delinsky was “physically incapable of performing the essential duties of her job as described in the job description.” Further, he believed Ms. Delinsky’s “incapacity is such as might be the natural and proximate result of the personal injury sustained on account of which retirement is being claimed.” (Ex. 4.)
- Dr. Miller reexamined Ms. Delinsky on February 18, 2016. She modified her answer on permanence. Dr. Miller agreed with Dr. Gerber that surgery could potentially help but, if not undergone, Ms. Delinsky’s incapacity was likely to be permanent. Ms. Delinsky told Dr. Miller that she did not want to move forward with the second surgery due to “potential complications including ‘breaking my arm.’” Dr. Miller concluded Ms. Delinsky’s “incapacity [was] likely to be permanent if no further surgery is undergone, and is the result of the personal injury sustained.” (Ex. 6.)
- On June 24, 2016, the Board sought further clarification from Drs. Gerber and Miller on the question of permanence. (Pleading A.)
- In a July 11, 2016 letter to Dr. Gerber, Teachers’ Retirement counsel asked him to explain to the Board the risks and benefits of a second arthroscopic surgery; the risk of death or serious injury and/or serious pain from that surgery; and, the likelihood that a second surgery would have resulted in Ms. Delinsky being able to return to her previous employment as a teacher. (Ex. XIII.)
- On July 25, 2016, Dr. Gerber responded that when he last saw Ms. Delinsky on June 8, 2015, his impression was that a manipulation under anesthesia and arthroscopic capsular release “would [have been] the best way to try and improve her motion to her shoulder.” Further, Dr. Gerber explained that the risks of all surgery include anesthesia, infection, and in this case a “small risk of fracture of the humerus.” The risk of fracture would have been greater for Ms. Delinsky due to the amount of time that had passed since the recommendation. Dr. Gerber concluded that “it is not possible for me to be certain that the patient would be able to return to her former line of employment, however, it is more likely than not that she would be able to return to her former line of employment.” However, any possible recovery would not immediately follow surgery. Dr. Gerber advised that “[r]ecovery would involve having the patient get a home CPM (continuous passive motion machine) in order to maintain the motion, and frequent physical therapy immediately postoperatively in order to maintain the motion.” (Ex. XIV.)
- In a July 11, 2016 letter to Dr. Miller, the Board asked her specific questions regarding Dr. Gerber’s recommendation of further surgery. The Board asked Dr. Miller to explain her understanding of the risks and benefits of the second arthroscopic surgery and to quantify the likelihood that a second surgery would result in Ms. Delinsky’s return to her previous employment. (Ex. XV.)
- In her response, dated August 22, 2016, Dr. Miller identified the standard risks of surgery as less than five percent. The risks included “infection, injury to nerves or blood vessels, stiffness, deep venous thrombosis, or fracture or dislocations.” If Ms. Delinsky had undergone isolated capsular release, then physical therapy would have been needed and her recovery would have been in the six month range. Dr. Miller concluded if Ms. Delinsky “gets ultimate improvement from her surgery,” then “given the relatively sedentary nature of her job. … it is likely that she would be able to return to her job.” (Ex. XVI.)
- The Board denied Ms. Delinsky accidental disability retirement on the grounds that she failed to sustain her burden of showing that her injuries were permanent. (Pleading A.)
- Ms. Delinsky timely appealed the decision. (Pleading A.)
- Ms. Delinsky continues to take pain medication, which gives her nausea. She performs some household tasks, such as making sandwiches for her children and doing laundry, but she rests frequently each day and limits her driving to local trips to the store. She has difficulty with any overhead lifting and needs help getting dressed and doing her hair. (Delinsky testimony.)
In order to receive accidental disability retirement benefits under M.G.L. c. 32, § 7(1), an applicant must prove by a preponderance of the evidence that she is totally and permanently unable to perform the essential duties of her job as the natural and proximate result of a personal injury sustained or hazard undergone, as a result of, and while in the performance of her duties, at some definite place and at some definite time. It is an applicant’s burden to prove that she has a permanent and total disability that is the natural and proximate result of a personal injury sustained as a result of the performance of her duties. Fairbairn v. Contributory Retirement Appeal Bd., 54 Mass. App. Ct. 353, 357, 765 N.E.2d 278, 281 (2002), citing Blanchette v. Contributory Retirement Appeal Bd., 20 Mass. App. Ct. 479, 483, 481 N.E.2d 216, 219 (1985);
When convened to evaluate an accidental disability retirement application, a medical panel is vested with “the responsibility for determining medical questions which are beyond the common knowledge and experience of the members of the local [retirement] board.” Malden Retirement Bd. v. Contributory Retirement Appeal Bd., 1 Mass. App. Ct. 420, 423, 298 N.E.2d 902, 904 (1973). The medical panel must find the applicant to be permanently disabled either from a work-related injury or hazard in order for the applicant to qualify for accidental disability retirement benefits. See Hunt v. Contributory Retirement Appeal Bd., 332 Mass. 625, 627, 127 N.E.2d 171, 173 (1955). Indeed, there can be no award without a medical panel’s positive certificate. See Quincy Ret. Bd. v. Contributory Ret. Appeal Bd., 340 Mass. 56, 60, 162 N.E.2d 802, 805 (1959).
Ms. Delinsky has shown by a preponderance of the evidence that she sustained a personal injury in the performance of her duties. Although she focused initially on the knee she injured in the 2013 fall at work, there is no dispute that she also injured her shoulder in this fall and that the injury disabled her from the physical requirements of her teaching job. There is also no dispute that this injury occurred while in the performance of her duties – she slipped on a puddle of water near her office and injured her left shoulder while moving between two work tasks.
The main issue in this appeal is whether Ms. Delinsky’s shoulder injury rendered her permanently incapable of performing the essential duties of her job. An injury is permanent if it is “likely never to end.” Cf. Yoffa v. Metropolitan Life Ins. Co., 304 Mass. 110, 111-112, 23 N.E.2d 108, 109 (1939). Initially, the medical panel did not all agree on whether Ms. Delinsky’s injury was permanent. Drs. Chaglassian and Hazel thought she was permanently disabled; Dr. Miller thought otherwise. Instead, Dr. Miller thought Ms. Delinsky’s injury needed further treatment and projected ten to twelve months for recovery. The Board ordered the medical panel to reevaluate their conclusions with Ms. Delinsky’s updated medical records, which would have included Dr. Gerber’s recommendation that she undergo a second shoulder manipulation surgery. Drs. Chaglassian and Hazel did not alter their conclusions that Ms. Delinsky was permanently disabled. This time, Dr. Miller thought Ms. Delinsky’s shoulder injury would be permanent if she did not move forward with the second surgery Dr. Gerber recommended. Ms. Delinsky informed Dr. Miller she refused to undergo the surgery due to the potential complications, and therefore Dr. Miller concluded that her incapacity was permanent. With Dr. Miller’s updated response, the medical panel issued a unanimously affirmative medical panel certificate as to permanence, with only Dr. Miller adding the caveat that Ms. Delinsky’s disability was permanent if she declined a second surgery.
The evidence in the record demonstrates that Ms. Delinsky’s injury is permanent. Ms. Delinsky underwent all the treatment options Dr. Gerber recommended for her injury, including shoulder surgery with manipulation under anesthesia, physical therapy, aquatic physical therapy, injections to alleviate her pain, and pain management appointments. After reevaluation, all three doctors concluded that Ms. Delinsky had reached an end medical result if she did not undergo another surgery. Ms. Delinsky also underwent two independent medical examinations. Dr. Gilbert thought her disability might be permanent or that it would continue for an indefinite period, while Dr. Warnock thought she would be at a medical end result if she declined surgery. Thus, Ms. Delinsky had the three doctors on the medical panel examine her six times, had two independent medical examinations, and had a functional capacity evaluation by an occupational therapist. All six medical personnel concluded that her disability was permanent in the sense that her condition was unlikely to improve. She continues to suffer from a painful frozen shoulder almost five years after the accident. This evidence suffices to demonstrate that, in her present condition, Ms. Delinsky’s disability is permanent.
2. Second Surgery
But need it be? The crux of the matter lies in Ms. Delinsky’s refusal to move forward with Dr. Gerber’s recommendation of a second surgery. Ms. Delinsky underwent manipulation under anesthesia in her first shoulder surgery. The surgery did not relieve the pain that prevents her from working at her job as a special education teacher or, that in the long run, will improve her left shoulder mobility, which has declined over time. Still, Dr. Gerber believed she would benefit from a second attempt just one year after the first surgery.
An injured public employee may be denied accidental disability retirement benefits if she “unreasonably refused standard or routine medical treatment that is not inherently dangerous and that would probably effect a cure by rendering a disability temporary.” Retirement Bd. of Revere v. Contributory Retirement App. Bd., 36 Mass. App. Ct. 99, 109, 629 N.E.2d 332, 338 (1994). In that case, the Appeals Court denied disability benefits to a police officer who tore his meniscus, but declined, for reasons unknown, to undergo arthroscopic knee surgery to repair it. The reasonableness of the surgery was shown by a second medical panel’s opinion that the surgery presented a negligible risk and, if performed soon after the injury, would have returned him to work in three to four months. Id. at 102, 629 N.E.2d at 335. PERAC also instructs boards to consider, as to a disability’s permanence, “whether the nature of the condition or injury is such that it could be expected to improve if the member were willing to undergo reasonable medical treatment or rehabilitation.” 840 C.M.R. § 10.04(3)(b).
The issue then boils down to two questions: is the proposed surgery a reasonable medical treatment, and is it likely that the member could once again resume the essential functions of her job if the surgery were successful? Treatment of a frozen shoulder by manipulation of the shoulder under anesthesia appears to be a standard treatment for that condition. None of the doctors who have evaluated Ms. Delinsky have suggested otherwise. She underwent a number of such standard treatments for frozen shoulder, including physical therapy, pain management, aquatic therapy, a steroid injection, and manipulation of her shoulder under anesthetic. None of them worked particularly well for her. She had difficulty getting to physical therapy appointments outside her home, and the physical therapy she performed at home caused her pain. She had trouble tolerating the aquatic therapy. The pain medications she was given made her ill. And the surgery she had, while it appears to have repaired her rotator cuff, did not in the end increase the mobility of her shoulder or relieve her shoulder pain.
Whether a repeat of the surgery that had been ineffective would be reasonable is hard to say. The parties have not identified any cases that address the reasonableness of a repeated performance of the same surgery. Some second surgeries would seem to be called for, such as a procedure that could not be completed in one operation, or surgery to correct a problem that arose during the first surgery, such as internal bleeding. But repeating a surgery that had been infective would appear to involve a different calculus than an analysis of whether the initial surgery was reasonable, which was the sentiment Dr. Warnock expressed when he wrote that “[i]t is not clear why this [a repeat surgery] is indicated, since he had already done that, and it did not significantly improve [Ms. Delinsky’s] condition.” Still, Dr. Warnock thought the second surgery was “reasonable,” as did Drs. Gerber and Miller (though they did not use this word), which I take to mean that they thought the potential benefit was greater than the potential harm.
That view was not universal. Drs. Chaglassian and Hazel did not change their minds that Ms. Delinsky’s disability was permanent after they learned that Dr. Gerber had recommended a second surgery. And the City of Lowell, after reviewing Dr. Warnock’s report, thought a second surgery was unwarranted, and refused to pay for it.
In the face of this disagreement among doctors about the value of a second surgery, I cannot say that Ms. Delinsky’s reluctance to repeat shoulder surgery was unreasonable. That surgery that had not previously benefited her, and she would face real risks of further injury, including the possibility that her arm might be broken and that her condition would be made worse.
What is more significant here is whether a second surgery would not merely have made her condition somewhat better, but whether it would have improved it enough so that she could once again perform her job as a special education teacher. I appreciate Dr. Gerber’s willingness to continue to try to help his patient. But why he thought a second surgery would achieve a better result than the first surgery is unclear. One possibility is that he thought Ms. Delinsky’s shoulder was not as damaged as some of the other examining physicians thought. For example, Dr. Hazel noted his disagreement with the assessment of Dr. Gilbert, who performed an independent medical examination, that Ms. Delinsky’s shoulder was “intact with no swelling, tenderness or deformity,” because he had found that her shoulder demonstrated “deficits in range of motion, strength, and pain.” (Finding 34.) I take from this, and from the disagreement among the various doctors who examined Ms. Delinsky as to the efficacy of a repeat surgery, that the likelihood of success of shoulder manipulation surgery depends to some degree on the seriousness of the shoulder’s condition when surgery is performed. At the time of the first surgery, Ms. Delinsky had a partial rotator cuff tear that the surgery repaired, but in every other way, the condition of her shoulder by the time Dr. Gerber recommended the second surgery had deteriorated. (Compare Findings 17, 23, and 33.) Her range of motion had been reduced and her pain had worsened. Even Dr. Gerber noted as much. (See Finding 24.) Some of the reduction in her shoulder mobility following the surgery seems to be attributed to pain when moving the shoulder. (See Finding 19.) Nor would further surgery, by itself, necessarily resolve the shoulder mobility problem. Dr. Gerber thought that Ms. Delinsky would have to use a continuous passive motion machine at home and undergo frequent physical therapy following surgery. Dr. Miller also thought that even if the surgery was a success, Ms. Delinsky would need physical therapy and six months of recovery before she could return to teaching. And that positive view was based on an assumption that the job of a special education teacher was relatively sedentary. While this is also how occupational therapist Gail Breeze described the job when she performed a functional capacity analysis, she found Ms. Delinsky to be performing below a sedentary level because she had difficulty squatting, kneeling, and reaching with her left arm.
I accept as more likely, the opinions of the other two medical panelists, Drs. Chaglassian and Hazel, and the independent medical examiner, Dr. Warnock, that a second surgery would not likely improve Ms. Delinsky’s condition sufficiently so that she could resume being a special education teacher. I do so for two reasons. The condition of Ms. Delinsky’s left shoulder was worse when Dr. Gerber recommended a second surgery than when he tried shoulder manipulation surgery the first time. Also, it is not clear that Ms. Delinsky could handle the physical demands of her job absent a surgery that dramatically improves her shoulder mobility and relieves most of her pain,
I reach this conclusion reluctantly because my sense, from the various evaluations of Ms. Delinsky is that normally a frozen shoulder is treatable. If the only issue was whether I thought Ms. Delinsky should have the surgery Dr. Gerber proposed, I might urge her to try it because it offers some hope of relieving the shoulder problems that have so reduced her ability to perform normal activities of everyday life. I hope Ms. Delinsky continues to make efforts to relieve her shoulder problems, and that one of these efforts pays off. However, the retirement statute requires only that an applicant demonstrate that a disabling injury is likely to be permanent, not that it certainly will be. Should Ms. Delinsky take steps in the future that allow her shoulder to heal, the change in the status of her disability may be addressed under Section 8 of the retirement statute. It allows for periodic reexaminations of persons receiving accidental disability benefits to determine if they have recovered sufficiently to perform the essential duties of their former positons. See M.G.L. c. 32, § 8.
But for now, the evidence shows that Ms. Delinsky cannot perform all the duties of a special education teacher, and evidence is lacking that the repeat of a surgery that had not healed her shoulder would allow her to resume her duties. I therefore conclude that the disabling injury Ms. Delinsky sustained while she was working is permanent, and thus she is eligible to receive accidental disability retirement benefits. Accordingly, the Teacher’s Retirement Board decision denying her those benefits is reversed.
DIVISION OF ADMINISTRATIVE LAW APPEALS
James P. Rooney
First Administrative Magistrate
Dated: March 1, 2019