Decision  Foley, Michael v. Springfield Retirement System (CR-16-222)

Date:	02/28/2018
Organization:	Division of Administrative Law Appeals
Docket Number:	CR-16-222

• Petitioner: Michael Foley
• Respondent: Springfield Retirement System
• Appearance for Petitioner: Katherine Lamondia-Wrinkle, Esquire
• Appearance for Respondent: Alfredo A. ViVenzio, Esquire
• Administrative Magistrate: Judithann Burke

Summary of Decision

The Petitioner, a former Senior Custodian in the Springfield Public School System, has not met his burden of proving that he is totally and permanently disabled as a result of a work-related injury to his lower back that occurred when he was head-butted by a five-year-old child on April 30, 2010.  

Decision

The Petitioner, Michael Foley, is appealing from the May 4, 2016 decision of the Respondent, Springfield Retirement System (SRS), denying his application for Section 7 accidental disability retirement benefits.  (Exhibit 18.)  The appeal was timely filed with the Division of Administrative Law Appeals on May 11, 2016.  (Exhibit 19.)  A hearing was scheduled to be held on June 15, 2017 at the offices of the Worcester Registry of Deeds, 90 Front Street, Worcester, MA.     

In a letter dated June 2, 2017, the parties notified the Administrative Magistrate that they wished to submit their respective cases on the documents and waive the hearing.  (Exhibit 25.)  See 801 CMR 1.01(10)(c).  The Petitioner submitted a pre-hearing memorandum and an attached exhibit list on January 20, 2017.  (Attachment A and Exhibits 1-19.)  The Respondent submitted a pre-hearing memorandum, a response to the Petitioner’s proposed facts, and Exhibits 20-24 on March 6, 2017.  (Attachment B.)  The parties submissions in lieu of the hearing were received on June 30, 2017 (Petitioner-Attachment C) and July 31, 2017 (Respondent-Attachment D) thereby closing the record. 

Exhibit No.	Document Description
1	July , 2011 application for accidental disability retirement
2	Treating Physicians’ Statements       Ronald Paasch, M.D. January 7, 2016       Ronald Paasch, M.D. April 10, 2014       Ronald Paasch, M.D. November 20, 2011       Francis D. Murray, M.D. November 30, 2011
3	Order of Payment, Department of Industrial Accidents
4	Decision and Award, American Arbitration Association
5	Hearing Decision, Department of Industrial Accidents
6	July 27, 2011 report of Alan H. Bullock, M.D.
7	Transcript of April 19, 2012 deposition of Alan H. Bullock, M.D.
8	September 7, 2012 report of James G. Nairus, M.D.
9	July 1, 2015 report of John R. Corsetti, M.D.
10	Medical Records from Concentra Medical Center, George Moore, M.D. May 12, 2010-June 8, 2010 and physical therapy notes
11	Medical Records from Pioneer Spine and Sports Physicians, Ronald Paasch, M.D. July 15, 2010 to November 11, 2015
12	Medical Records of SV Pain Management, Thenu Manikantan, M.D. October 12, 2011 to December 14, 2011
13	Medical Record from Baystate Surgery, Dennis Oh, M.D. July 11, 201
14	Medical Record of Baystate Pain Management, Paul Jodka, M.D. July 22, 2015
15	Medical Records from Baystate MRI       MRI Lumbar Spine June 9, 2010       MRI Thoracic Spine February 1, 2013
16	Medical Records of Francis D. Murray, M.D. April 0, 2009 to September 15, 2015
17	April 7, 2016 Medical Panel Certificate and narrative
18	May 4, 2016 Notice of Retirement Board Action
19	May 11, 2016 letter of appeal
20	January 11, 2012 email from Lisa Bakowski to Melissa Shea pertaining to nature of contact between kindergarten student and Petitioner on April 3, 2010
21	November 23, 2011 grievance
22	May 3, 2010 injury report
23	IME report of Charles Kenney, M.D.
24	April 20, 2010 report of Dr. Murray
25	June 2, 2017 letter from Petitioner’s counsel waiving hearing

Findings of Fact

Based on the documents and written submissions of the parties, I hereby render the following findings of fact:

1. The Petitioner, Michael Foley, born in 1958, began employment in the Springfield School department in 1987.  He began as a Junior Custodian and performed job duties that included cleaning classrooms at night, emptying trash, sweeping, and cleaning floors, showers and windows.  (Parties Agreed Facts, Attachments A and B.)
2. In 1993, the Petitioner was promoted to the position of Senior Custodian.  In this capacity, he worked during the daytime, opened particular buildings, shoveled snow and moved furniture, trash cans and file cabinets.  (Id.)
3. In April 2010, the Petitioner was assigned to the Summer Avenue Elementary School in Springfield.  The school housed grades from pre-school to five.  (Id.)
4. In April 2010, the Petitioner weighed 288 pounds.  He had a history of upper back pain following a heart attack in or about 2008.  (Exhibits 10 and 16.)
5. On April 30, 2010 the Petitioner was outside on the school playground inspecting the swings and checking the condition of the trash barrels.  A kindergarten child ran up behind him and butted him in the low back with his head.  (Attachment A.)
6. The Petitioner reported the incident to School Principal Lisa Bakowski.  He informed her that he was given a “bear hug” by the kindergarten student.  No disciplinary action was taken against the student.  Bakowski described the five (5) year old student as “energetic, taller than his peers, but thin and wiry.”  (Exhibits 4 and 20.)
7. The Petitioner completed an injury report on May 3, 2010 wherein he noted that the student ran into him with his head, struck him in the lower back and caused pain in the lower back area.  (Exhibit 22.)
8. In an October 5, 2012 Decision and Award by the American Arbitration Association, Arbitrator Tammy Brynie noted that the Petitioner last worked on or about May 12, 2010.  (Exhibit 4.)
9. The Petitioner was seen at the Concentra Medical Center on May 12, 2010.  He complained of back pain, stiffness and limited range of motion.  He reported that a student ran into him with his head and injured his back.  The initial diagnosis of Dr. George W. Moore was “contusion of the lumbar spine.” X-rays revealed mild degenerative joint disease.  The Petitioner was sent to physical therapy.  (Exhibit 10.)
10. The Petitioner returned to the Concentra Medical Center on May 26, 2010.  He reported that physical therapy had not helped alleviate his low back pain.  He informed Physician Assistant Sharon Jarmolowicz that he had been hit quite hard in the low back by the student.  He informed her that he had been “head-butted.”  Ms. Jarmolowicz noted that the Petitioner had been working his normal shift and that the pain was not so bad in the morning, however it worsened as the day progressed to the point where he was actually limping.  The Petitioner was directed to perform modified work duty for four (4) hour shifts and to avoid lifting over 10 pounds.  An MRI was ordered.  The diagnoses at that time were “lumbar contusion, lumbar sprain.” (Id.)        
11. Ronald D. Agnes, Jr. saw the Petitioner at Concentra Medical Center on June 2, 2010.  Dr. Agnes extended the restrictions on the Petitioner’s work activities.  The doctor reported:

 Gentleman presents for follow-up several weeks after being head-butted in the low back.  His history is significant for chronic mid-back pain and opiate dependence for pain control.  He has remained long term at a full duty capacity but presently demonstrates signs that put him at greater risk for long-term disability.  It is my opinion that he should have the MRI ASAP in order to return him to his work activities as soon as medically possible.  It is unlikely that the mechanism of injury caused a structurally significant problem.  Facet irritation and/or myotendinous pain are most likely. 

(Id.)

12. The Petitioner underwent an MRI study at the Baystate MRI and Imaging Center on June 9, 2010.  The test revealed no evidence of acute or subacute compression deformity.  Subtle grade 1 anterolisthesis of L5 on S1 was noted and thought to be secondary to L5 spondylosis.  The test also revealed mild foraminal narrowing at L5-S1 secondary to anterolisthesis.  There was no nerve root impingement.  (Exhibit 15.)
13. The Petitioner began treating with Ronald Paasch, M.D. of the Pioneer Spine and Sports Physicians, P.C. in July 2010.  The Petitioner informed Dr. Paasch that he had experienced continued low back pain since a student charged at him and hit his back on April 30, 2010.  Dr. Paasch prescribed a course of physical therapy.  The Petitioner did not find this helpful.  (Exhibit 11.)
14. The Petitioner continued to treat with Dr. Paasch through the fall of 2010.  The doctor administered epidural injections on October 20, November 22 and December 23, 2010.  (Id.)
15. December 10, 2010 x-rays ordered by Dr. Paasch revealed mild endplate degenerative changes at T11 and T12 and in the left S1 joint.  (Id.)
16. On March 21, May 9 and August 24, 2011 and November 11, 2015, Dr. Paasch noted “To Whom It May Concern” that the Petitioner was totally disabled and that, in his opinion, a major but not necessarily predominant cause of the disability was due to the work injury of April 30, 2010.  (Id.)
17. The Petitioner was placed on weekly workers’ compensation benefits effective as of May 13, 2010 pursuant to G.L. c. 152, § 34 and received these benefits through March 24, 2011.  (Attachments A and B and Exhibit 3.)
18. A hearing was held on August 9, 2012 before Judge Rose of the Department of Industrial Accidents on the Petitioner’s claim for additional workers’ compensation benefits after March 25, 2011.  On January 3, 2013, Judge Rose awarded him weekly benefits under G.L. c. 152, § 35 effective March 25, 2011 and continuing.  (Id.)
19. The Petitioner also applied for assault pay.  The Hearing on the Matter of Arbitration between the Springfield Association of School Custodian Employees and the Springfield School Committee/Springfield Finance Control Board was held before Arbitrator Byrnie on September 12, 2012 and she issued her decision, referred to previously herein, on October 5, 2012.  Assault pay was awarded.  (Exhibit 4.)
20. The Petitioner applied for accidental disability retirement benefits on or about July 1, 2011.  He asserted that he was totally and permanently disabled from his essential duties by virtue of the low back injury he sustained at work on April 30, 2010.  (Exhibit 1.)
21. In conjunction with his application, the Petitioner submitted two Treating Physician’s Statements:  one from his primary care doctor, Francis D. Murray; and the other from Dr. Paasch, both dated November 30, 2011.  (Exhibit 2.)
22. A vote on this application was delayed and the SRS requested that the Petitioner obtain an updated Treating Physician’s Statement before a vote on his application in September 2014.  (Attachments A and B.)
23. The Petitioner submitted an updated Treating Physician’s Statement from Dr. Paasch dated April 10, 2014.  (Exhibit 2.)
24. On or about September 3, 2014, the SRS voted to deny the Petitioner’s application without convening a regional medical panel on the bases that the Petitioner was “not in the performance of his duties” and that the “facts on alleged injury are inconsistent and are insufficient to support work injury.”  (Attachments A and B.) 
25. The Petitioner filed a timely appeal of the SRS decision.  Michael Foley v. Springfield Retirement Board, CR-14-471.  (Id.)
26. On December 24, 2015, the Petitioner notified the Division of Administrative Law Appeals that he was withdrawing appeal because he was being granted a medical panel examination.  (Id.)
27. The Petitioner was required to produce another updated Treating Physician’s Statement and he obtained one from Dr. Paasch dated January 7, 2016.  (Id.)
28. Orthopedists William F. Mulroy, M.D and Pier Boutin, M.D. and neurologist Jay M. Ellis, M.D. conducted a medical panel examination of the Petitioner on April 7, 2016.  They answered certificate questions 1 and 2 in the affirmative and question 3 in the negative.  They concluded that the Petitioner was totally and permanently incapacitated from performing his essential duties, but that the incapacity was not such as might be the natural and proximate result of the personal injury sustained on April 30, 2010.  (Exhibit 17.)
29. In their narrative report, the panel doctors summarized the history of the Petitioner’s injury and related medical treatment.  They reviewed diagnostic studies. The doctors noted that the Petitioner complained of upper back and chest pain and that he experienced low back pain that radiated to his buttock when he walked long distances or stood.  The panel made detailed clinical findings regarding the Petitioner’s lumbar spine and lower extremities.  The panel’s diagnoses were “lumbar contusion” and chronic undiagnosed chest pain.”  The Assessment of the unanimous panel reads as follows:

It is our opinion that Mr. Foley is disabled from his work as a senior custodian.  It is our opinion that he cannot do the physical duties required of a senior custodian, which include general maintenance and grounds keeping and repair.  Mr. Foley’s disabilities however are not attributable to his work incident of 4/30/10.  It is not felt that the lumbar contusion caused the present symptoms limiting his activities.  He has significant preexisting chronic upper back/chest pain for which he takes a multitude of narcotics and medications.  This disability is felt to be permanent.

Therefore, based on the examination today, it is our opinion that the  member is physically incapable of performing the essential duties of his job as described in the current job description and that said incapacity is likely to be permanent.  It is also our opinion that said incapacity is not such as might be the natural and proximate result of the personal injury sustained or hazard undergone on account of which retirement is claimed.

(Id.)

30. In a letter dated May 4, 2016, the SRS denied the Petitioner’s application for accidental disability retirement benefits.  (Exhibit 18.)
31. The Petitioner filed a timely appeal on May 11, 2106.  (Exhibit 19.)

Conclusion

In order to receive accidental disability retirement benefits, an applicant must establish by a preponderance of the evidence, including an affirmative medical panel certificate, that he is totally and permanently incapacitated from performing the essential duties of his position as a result of a personal injury sustained or hazard undergone while in the performance of his duties.  The medical panel’s function is to “determine medical questions which are beyond the common knowledge and experience of the local board (or Appeal Board).”  Malden Retirement Board v. CRAB, 1 Mass. App. 420, 298 N.E. 2d 902 (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. Contributory Retirement Appeal Board, 341 Mass. 611, 171 N.E. 2d 277 (1961).

The Petitioner has the burden of proof to establish a causal nexus between any injury or hazard and his disability.  Campbell v. CRAB, 17 Mass. App. Ct. 1018, 460 N.E.2d 213 (1984).  In order to meet this burden, the Petitioner must prove one of two hypotheses:  that his disability was caused by a single or series of work-related events, or that his employment exposed him to an “identifiable condition…that is not common and necessary to all or a great many occupations” that resulted in disability through gradual deterioration.  Blanchette v. CRAB, 20 Mass. App. Ct. 479, 481 N.E. 2d 216, 220 (1985).

The Petitioner has advanced the first hypothesis:  that his disability was caused by the April 30, 2010 incident on the playground when he was head-butted by the five-year- old student.  He has not met his burden of proving that this incident is such as might be the proximate cause of his disability.  Thus, the Petitioner is not entitled to prevail in this appeal.  The Respondent SRS, the Division of Administrative Law Appeals and the Contributory Retirement Appeal Board cannot substitute their collective judgment for that of the medical panel majority when it has performed its function properly.  Further, a  supportive report of any treating physician cannot outweigh the conclusion derived following a valid medical panel.

The panel doctors took a medical history, performed a detailed clinical examination of the Petitioner and reviewed pertinent medical reports pertaining to his treatments for the injury and the related diagnostic studies.  The conclusion of the panel doctors following their review was that the Petitioner’s lumbar symptoms were due to a lumbar contusion, the same diagnosis of his treating doctors.  Thus, they concluded that his symptoms are related to a soft tissue injury that he sustained on April 30, 2010 and not to any worsening of his degenerative arthritis as a result of that incident. 

In this case, the Petitioner has not met his burden of proving either that: the panel majority failed to perform its function properly by virtue of employing an erroneous standard; lacked knowledge of the Petitioner’s job description; lacked knowledge of the Petitioner’s medical treatment history; or, was improperly comprised.  Further, the Petitioner has failed to prove a causal nexus or an exacerbation of a pre-existing degenerative condition in his lumbar spine result of the April 30, 2010 contact with the kindergarten student.  They did not conclude that that the Petitioner’s current limitations are due to any progression of his pre-existing lumbar spine condition.

The unanimous medical panel asserted at the end of their Assessment that “said incapacity is not such as might be the natural and proximate result of the personal injury sustained or hazards undergone on account of which retirement is claimed.”   These are the specific words set forth in the statute, and the unanimous panel members have addressed the precise question they were called upon to address.  Kelley, supra, at 616. 

See also Noone v. CRAB, 34 Mass. App. Ct. 756 (1993).

I will make brief mention here of the May and early June 2010 reports of the medical providers at Concerta.  Those reports reflect that the Petitioner informed them in late May that he was still working his normal shift.  These assertions raise the question of when the Petitioner actually stopped working.  For purposes of this Decision, I have relied on the finding set forth in the Arbitration Decision and that of the Department of Industrial Accidents that he stopped working on or about May 12, 2010 notwithstanding the Petitioner’s conflicting comments at Concerta.  What is known with certainty is that he did work his normal shift on the day of the injury and he continued to work for at least 12 days thereafter.

Based on the foregoing, the decision of the SRS denying the Petitioner’s application for accidental disability retirement benefits is affirmed.

            So ordered.

            Division of Administrative Law Appeals,

            BY:

 

            Judithann Burke

           Administrative Magistrate                                          

 

DATED:  February 28, 2018