Decision Kenneth Mello v. State Board of Retirement, CR-07-206 (DALA, 2008)

Date: 06/12/2008
Organization: Division of Administrative Law Appeals
Docket Number: CR-07-206
  • Petitioner: Kenneth Mello
  • Respondent: State Board of Retirement
  • Appearance for Petitioner: Robert Deubel, Esquire
  • Appearance for Respondent: Crystal Chow, Esquire
  • Administrative Magistrate: Judithann Burke

Table of Contents


Pursuant to G.L. c. 32 s. 16(4), the Petitioner, Kenneth Mello, is appealing from the March 2, 2007 decision of the Respondent, State Board of Retirement (SBR), denying his application for Section 7 accidental disability retirement benefits. (Exhibit 1). The appeal was timely filed. (Exhibit 2). A hearing was held on March 19, 2008 at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, Boston, MA.

At the hearing, thirteen exhibits were marked. The Petitioner testified in his own behalf. Both parties stated their arguments for the record. Two tapes were made of the proceedings.


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

1. The Petitioner, Kenneth Mello, d.o.b. 06/22/1957, began employment in the Department of Correction (DOC) on August 3, 1988. He first worked as a storekeeper, then as a maintenance worker. He became a Correction Officer in July 1995. (Testimony and Exhibit 5).

2. Prior to his becoming a Correction Officer, the Petitioner underwent several weeks of training. He passed a pre-employment physical and he had no back problems prior to assuming the role of Correction Officer. (Testimony).

3. After becoming a Correction Officer, the Petitioner experienced occasional, moderate back pain approximately once a week. He took an over the counter anti-inflammatory and went about his business. His missed no time from work due to back pain. (Exhibit 9).

4. On October 17, 2002, after complaining of left hip and leg pain and sciatica of two to three weeks duration, the Petitioner sought treatment at the Swansea Medical Center and he underwent x-rays of the lumbar spine. These revealed disc narrowing of L5-S1 with subchondral sclerosis and osteophyte formation. Similar changes were seen at L4-5, but less severe in degree. (Id.).

5. The Petitioner also underwent an MRI on November 6, 2002. This revealed degenerative changes at L4-5 and L5-S1 along with osteophyte formation at L5-S1 and a disc bulge indenting the thecal sac with facet joint hypertrophy causing stenosis of the lateral recess. This was also seen at L4-5 with the most narrowing at the L5-S1 foraminal opening. (Id. and Exhibit 11).

6. In November 2002, the Petitioner was assigned to the Old Colony Correctional Center in Bridgewater, MA. When he attempted to break up a fight among inmates on November 10, 2002, he was hit by one of the inmates and his body was twisted during the struggle. He felt a "knuckle crack" in the lower left side of his back. He had never felt pain of that intensity before. He reported the incident immediately after the situation was under control. (Exhibits 4, 6 and 9).

7. The Petitioner did not return to work. He began collecting Workers Compensation benefits. (Exhibit 6).

8. The Petitioner saw his Primary Care Physician, Dr. Stubbert, on November 11, 2002. He complained of pain in the left leg which radiated to the foot with numbness in the great toe and second toe. The doctor ordered x-rays. The x-ray findings were similar to those of October 17, 2002. The doctor's initial diagnosis was "lumbar strain". He prescribed the medication Vicodin and a regimen of physical therapy. (Exhibit 9).

9. The Petitioner continued to complain of persistent low back pain and numbness in the great and second toes into January 2003. On January 10, 2003, Glenn Dubler, M.D., an orthopedic doctor to whom the Petitioner was referred by Dr. Stubbard, reported that his patient's lumbar radiculitis was improving. Dr. Dubler advised the Petitioner to undergo an epidural steroid injection. Dr. Dubler's diagnosis was "symptomatic lumbar stenosis". (Id.).

10. In March 2003, Dr. Dubler advised the Petitioner to discontinue physical therapy since this did not appear to be helping. The doctor noted that the Petitioner had recently begun chiropractic treatment. The Petitioner was still complaining of persistent leg pain and numbness, especially after a lot of activity. On that date, the doctor indicated his diagnosis was "foraminal stenosis and lateral recess stenosis". (Id.).

11. On May 2, 2003, Dr. Henry Crowley, a Pain Specialist to whom Dr. Dubler referred the Petitioner, administered the first epidural steroid injection. Dr. Crowley administered these injections again in early June and July 2003 for a total of three injections. These injections provided minimal relief. (Id.).

12. On December 9, 2003, Dr. Crowley reported that the Petitioner still continued to complain of radicular low back pain. The doctor opined that the Petitioner was not a surgical candidate at that time. Dr. Crowley also reported that the Petitioner's symptoms were causally related to his injury of November 10, 2002. (Id.).

13. The Petitioner underwent an independent medical evaluation performed by Harry E. VonErtfelda, M.D. on December 10, 2003. The doctor reported his comments and conclusions:

1. Lumbosacral strain.
2. Degenerative disc disease L4-5 and L5-S1 pre-existent.

Assuming that the examinee's history is accurate, there appears to be a relationship between the injury and his present symptoms. He has been found to have severe degenerative disc disease, which, according to the examinee, has never been a source of problem (sic) in the past. He has had appropriate treatment in the form of physical therapy, medications, chiropractic and epidural steroid injections…

…As it relates to his pre-existing condition, it is my opinion that Mr. Mello is capable of working with restriction of no lifting in excess of twenty pounds and no long periods of sitting, standing or walking without interruption. These restrictions would be a result of his pre-existing condition and not the incident in question. (Exhibit 10).

14. On January 8, 2004, Dr. Crowley reported that the Petitioner's pain was unchanged. The doctor indicated that the patient should remain out of work until further notice. He indicated that he was referring the Petitioner to a neurologist in order to address the question of whether the Petitioner had sustained permanent nerve damage from his injury. He noted that the Petitioner would continue on the medications Percocet and Neurontin. (Id.).

15. On March 9, 2004, Dr. Crowley reported to Petitioner's counsel:

…His complaints subjectively by history are causally related to his injury on November 10, 2002, a major but not predominant cause of the disability and need for treatment…Until further notice, he will not be able to return to work. (Id.).

16. On September 1, 2004, Jerald W. Katz, M.D. performed an Independent Medical Examination on the Petitioner. Dr. Katz also indicated that the Petitioner had been diagnosed with some iliac disease in his left leg arteries and that he was placed on the medication Pletal for this. The doctor noted that venous studies showing a right ankle to brachial ischemic index of 0.94 and a left ankle to brachial index of 0.58. The doctor indicated that the Petitioner's symptoms had fundamentally had not changed. Dr. Katz reported his Impression/Diagnosis:

To a reasonable degree of medical certainty, the patient sustained a lumbar strain on 12/10/02 (sic). There WAS a causal connection between the injury described sustained (sic) at work and the back pain the patient sustained. I feel, however, that there is underlying degenerative disc disease, which is giving him the share of his symptoms now. He also has some vascular disease of the left leg that may in fact give him some claudication when he is walking long distances. I would apportion perhaps three months of his back pain to his acute injury…and apportion the ongoing, current symptoms to underlying spondyloarthrosis, a common degenerative disc disease and possible claudication. … I think in the penal system he should not be in a position where he has to restrain patients (sic) because he can further twist and injure his back. (Exhibit 11).

17. On August 17, 2005, the Petitioner underwent another independent medical evaluation by Dr. VonErtfelda. The Petitioner reported that he had pain in his low back that was worse at times. The pain caused radiation down his left lower extremity into the great toe. In this report, Dr. VonErtfelda stated that the Petitioner's symptoms appeared to be causally related to the 2002 work injury. He again stated that the Petitioner could perform a light duty job where he did not have to lift greater than twenty-five pounds. (Exhibit 12).

18. The Petitioner continued to see Dr. Crowley for his complaints of moderate low back pain through 2006. He remained on the same medications. (Id).

19. In his Statement of Applicant's Physician on September 27, 2006, Dr. Crowley reported that the Petitioner was incapable of performing the essential duties of a prison guard. The doctor indicated that the Petitioner would most likely be a long-term patient at the clinic because, in his opinion, some discomfort will be a lifelong endeavor. He also reported that there appeared to be a causal relationship between the work accident and the Petitioner's chief complaint. (Exhibit 5).

20. The SBR received the Petitioner's application for accidental disability retirement benefits on October 31, 2006. The Petitioner indicated that "low back and left leg resulting (sic) in chronic pain" were the medical reasons for his disability. (Exhibit 4).

21. On November 22, 2006, William C. Donohue, M.D. conducted an independent medical re-evaluation of the Petitioner. The Petitioner complained to Dr. Donohue of back pain with radiation to the left leg. Dr. Donohue recorded his comments and conclusions:

… at this point in time, he continues with low-grade objective findings relative to his back. He effectively is at an end result. Pain management history has been long-standing. He is still on the pain medication and patches. Mr. Mello is disabled from his regular unrestricted work as a guard. …Treatment would appear to be causally related to the incident in question. It is my opinion that he suffered a lumbosacral strain, superimposed on his degenerative disc disease. It is also my opinion that the incident of 2002 no longer remains a cause of disability, but rather it is his pre-existing condition. (Exhibit 13).

22. Regional Medical Panel Doctors John McConville, Thomas P. Galvin and Lalit Savla evaluated the Petitioner on January 2, 2007. The Panel majority answered the Certificate "yes, yes, no". Dr. Savla, the minority member, answered "no" to Question 1. The Panel's diagnosis was degenerative disc disease. (Exhibit 8).

23. The Petitioner informed the Panel that he continued to have pain in his low back radiating down his leg. He was still taking the medication Percocet but he was no longer taking Neurontin. The majority Assessment was:

On October 17, 2002 …symptoms that predated the injury…the patient had left hip and leg pain for two to three weeks with radiating down his left leg into his left toes. These were exactly the same symptoms as existed at his evaluation.

He was having enough discomfort that prior to his injury, he had an MRI done, less than one week prior, on November 6, 2002 which showed degenerative disc disease, and there was spondyloarthropathy at L4-5, L5-S1. This information was not offered by Mr. Mello on examination. His examination was consistent, but no real pathology could be seen except some left thigh atrophy and some variable decrease in sensation in lower extremity. He is also noted to have some decrease in blood flow to the left leg.

It is our opinion that Mr. Mello does have a permanent disability which does not allow him to return to his previous job as a corrections officer, but it is further our opinion that this predated his work related injury. His permanent disability at this point is related to his pre-existing disease which was confirmed on MRI, predating is injury of 11/10/02. The injury of 11/10/02 was, in our opinion, a temporary aggravation of his pre-existing condition and is no longer responsible for his disability. (Id.).

24. Panel minority member Dr. Salva reported that the Petitioner's work injury represented a temporary aggravation of his pre-existing degenerative condition. (Id.).

25. The SBR denied the Petitioner's application for accidental disability retirement benefits on March 2, 2007. (Exhibit 1).

26. The Petitioner filed a timely appeal. (Exhibit 2).


In order to receive accidental disability benefits under G.L. c. 32 s. 7, an applicant must establish by substantial evidence, including an affirmative Medical Panel Certificate, that he is totally and permanently incapacitated from performing all of his duties 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 the Appeal Board)". Malden Retirement Board v. CRAB, 1 Mass. App. 420 (1973). Unless the Panel applies an erroneous standard or fails to follow proper procedures, or unless the Certificate is "plainly wrong", the local board may not ignore the Medical Panel's findings. Kelley v. CRAB, 341 Mass. 611, 171 N.E. 2d 277 (1961).

Both the Petitioner's treating physician, Dr. Crowley, and Dr. VonErtfelda, who conducted two independent exams, found him to be totally and permanently disabled from his job as a result of the injury sustained on November 10, 2002. However, all of the Medical Panel Doctors and Drs. Katz and Donohue all concluded that he is disabled due to his pre-existing degenerative disc disease. He is not entitled to prevail in this appeal. Further, in his first report, Dr. VonErtfelda stated on the last page that any restrictions on the Petitioner's employment were the result of his pre-existing condition and not the incident in question.

An applicant "does not have an opportunity for a retrial of the medical facts, where there has been a determination of them by the Panel, applying proper procedures and correct principles of law" Kelley, supra. In this case, a majority of the Panel answered "no" to the question of causation. The third doctor, Dr. Savla, found that the Petitioner is not disabled in the first instance, thereby obviating the need to address Question 3, although she in fact did conclude that the 2002 work injury had resulted in the temporary aggravation of his pre-existing condition. In issuing their findings, the Panel Doctors did not apply erroneous standards, nor did they perform an incomplete evaluation or lack pertinent medical facts.

While the Petitioner strenuously argues that all of the Panel Doctors have erroneously found that the November 10, 2002 injury resulted in only a "temporary" aggravation of the Petitioner's pre-existing condition, the Doctors have all set forth sound reasoning in their opinions that the injury at work amounted to a temporary aggravation of his degenerative disc disease, an aggravation from which he has now healed. The Doctors support this theory with their clinical findings of the Petitioner's symptoms and responses during the physical examination. The Panel Doctors are unequivocal in their opinions that the Petitioner is now disabled from his underlying pre-existing condition and not from any residuals following the November 10, 2002 twisting altercation.

As the Panel Doctors noted, the Petitioner's complaints at the time of the Panel evaluation are exactly the same as those he had immediately prior to the November 10, 2002 injury. Therefore, their opinions must stand. There is no basis upon which to overturn the findings of the Panel in this case. Malden, supra. It should also be noted here that the opinion of the Panel is the same as those of Drs. Donohue and Katz.

The Panel and Dr. Katz also expressed the opinion that some impairment in blood flow to the Petitioner's left leg may also be playing a role in the Petitioner's symptomatology.

Accordingly, the decision of the State Board of Retirement denying Kenneth Mello's application for accidental disability retirement benefits is hereby affirmed.

So ordered.

Division of Administrative Law Appeals,

Judithann Burke
Administrative Magistrate

DATED: June 12, 2008

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