The Petitioner, a former police officer in the Dukes County Towns of Tisbury and Oak Bluffs, has failed to meet his burden of proving that he was totally and permanently disabled on his last day of work for the Oak Bluffs Police Department and that his low back disability is such as might be the natural and proximate result of injuries sustained in the course of his employment notwithstanding a positive medical panel evaluation.
The Petitioner, Jason Marathas, is appealing from the February 28, 2017 decision of the Respondent, Dukes County Retirement System (DCRS), denying his application for Section 7 accidental disability retirement benefits. The appeal was timely filed on March 1, 2017. A hearing commenced September 6, 2017 at the offices of the Division of Administrative Law Appeals (DALA), One Congress Street, 11th FL, Boston, MA. The hearing was continued to November 8, 2017 when it was heard to completion. The Petitioner testified in his own behalf. The Petitioner also presented the testimony of his former roommate, Nicole Gazaille, and former Oak Bluffs Fire Chief Gilbert Forend, who is also the Petitioner’s personal friend. The hearing was digitally recorded and later transcribed.
The parties filed a joint Pre-hearing Memorandum in response to a DALA Scheduling Order. (Attachment A.) This memorandum included eleven (11) Agreed Facts and Exhibits 1-14. The parties also filed post-hearing memoranda of law. (Petitioner-Attachment B; Respondent-Attachment C.) The last of the post-hearing submissions was received on April 23, 2018, thereby closing the record.
FINDINGS OF FACT
Based upon the testimony and documents submitted at the hearing in the above-entitled matter, I hereby render the following findings of fact:
- The Petitioner, Jason Marathas, born in 1973, was employed as a police officer in the Tisbury police Department from approximately May 2006 to June 2014. (Petitioner Testimony and Exhibits 1 and 14.)
- On or about August 22, 2007, while on duty for the Tisbury Police Department, the Petitioner discovered that an unoccupied civilian motor vehicle had been improperly parked and was rolling down a hill. The Petitioner dove into the vehicle to stop it. In the process, he injured his lower back. (Petitioner Testimony and Exhibit 14.)
- The Petitioner filed an incident report with the Tisbury Police Department concerning his August 22, 2007 injury. Following the injury, he was placed on leave and approved for injured-on-duty benefits pursuant to G.L. c. 41, § 111F. He remained out of work for several months. (Petitioner Testimony and Exhibits 1, 13 and 14.)
- A January 2011 MRI revealed minimal disc bulging at l5-S1 without evidence of nerve root impingement.
- Between his return to work following the August 22, 2007 injury and October 24, 2011, the Petitioner re-injured his back while getting into his personal vehicle. He missed several weeks of work. During this time, he used accrued sick and vacation time. (Petitioner Testimony and Exhibit 14.)
- On October 24, 2011, while on duty for the Tisbury Police Department, the Petitioner responded to a motor vehicle accident. While bending over to lift and clear broken parts of the crashed vehicles from the road, he re-injured his lower back. (Id. and Exhibit 13B.)
- The Petitioner filed an incident report with the Tisbury Police Department concerning his October 24, 2011 injury. He was again placed on leave and approved for Section 111F benefits. He remained on leave for several months. (Id.)
- A December 2011 MRI study was essentially the same the same as the study performed in January 2011. (Id.)
- The Petitioner performed all of his police duties without restrictions following his return from the October 2011 injury. His police activities included the May 9, 2013 rescue of a potential drowning victim in Oak Bluffs wherein he jumped 12-15 feet into the water to rescue the individual. He was symptom free following this incident. (Petitioner Testimony.)
- On June 12, 2014, Jeff Zack, M.D. issued a Medical Clearance Letter wherein he deemed the Petitioner to be fit for active duty as a police officer. (Exhibit 7.)
- The Town of Oak Bluffs hired the Petitioner as a patrol officer in or about July 2014. (Id.)
- Officers in the Oak Bluffs Police Department are required to maintain a high level of physical fitness. The Oak Bluffs Police Department provides its officers with gym facilities inside the station and time during their work shifts to exercise. (Id and Exhibit 5.)
- Officers hired into the Oak Bluffs Police Department are considered probationary until they complete their first year of service. (Petitioner Testimony.)
- On July 10, 2014, the Petitioner received a written reprimand for mishandling property and evidence during an arrest on July 4, 20 (Exhibit )
- At approximately 4:30 P.M. on August 9, 2014, the Petitioner was exercising in the on-site gym of the Oak Bluffs Police Department when he re-injured his lower back. During the hour that followed, the Petitioner went through a routine check of his police cruiser and his back pain worsened. The severe pain resulted in difficulty walking and bowel incontinence. The Petitioner needed to return to the police locker room, clean himself and change into a new uniform. (Id. and Petitioner Testimony.)
- Notwithstanding his recurring injury and resultant difficulties, the Petitioner went out on his scheduled patrol. While on patrol, he was ordered to join another Oak Bluffs Police Officer, Sergeant (Sgt.) Nicholas Curelli and to ride in Sgt. Curelli’s cruiser. While entering Sgt. Curelli’s cruiser, the Petitioner felt extreme pain yet again. As he was still early in his probationary first year, the Petitioner did not tell Sgt. Curelli about his injury. (Id.)
- While the Petitioner and Sgt. Curelli were patrolling in the cruiser, they received a minor noise complaint involving a local bar. Sgt. Curelli responded and handled the complaint. The Petitioner remained in the cruiser while sweating, shaking and suffering through the stabbing pain in his lower back. (Id.)
- When the initial noise complaint was resolved, the Petitioner and several other officers, including Officer Dustin Show, were standing outside of the bar. The bar was known to be a trouble spot at night. A fight broke out in front of the bar. The Petitioner, Officer Shaw and other officers turned to run toward the scene in order to break up the fight. The act of turning was so painful for the Petitioner that he collapsed. (Id. And Exhibit 14.)
- At the end of his shift on August 9, 2014, the Petitioner had difficulty entering his cruiser to return to the station, changing out of his uniform, and, entering his personal vehicle in order to drive home. Once home, the Petitioner laid down on the floor and found that he could not get up again. He remained on the floor for the rest of the night. (Petitioner Testimony and Gazaille Testimony.)
- During the morning of August 10, 2014, the Petitioner managed to stand up, but he was in extreme pain and struggled to move. He called out sick from work. His then roommate, Nicole Gazaille drove him to the emergency room at Martha’s Vineyard Hospital. He received medication and was released. (Id. and Exhibit 9.)
- On August 11, 2014, the Petitioner was in such extreme pain that he called an ambulance to transport him back to Martha’s Vineyard Hospital for further treatment, including an MRI, steroids and narcotic pain medication. (Petitioner Testimony and Exhibit 9.)
- An August 11, 2014 MRI study showed degenerative changes, annular tear and diffuse disc bulge at L5-S1 with a diagnosis of degenerative disc disease of the lumbar spine with radiculopathy. (Exhibit 8.)
- Also on August 11, 2014, Physical Therapist Susan Sanford noted that the goal was to reduce the Petitioner’s pain in order for him to be able to perform light work duties or homemaking activities. (Id.)
- On August 14, 2014, after several days of using steroids and narcotics, the Petitioner concluded that he could not return to work. He filed an injury report concerning his August 11, 2014 injury and was placed on leave. The Oak Bluffs Police Department initially denied his request for Section 111F benefits, then later determined that he should have been approved for those benefits. (Petitioner Testimony and Exhibit 14.)
- The Petitioner remained out of work and collected Section 111F benefits for approximately five (5) months. During this period of time, he experienced another episode of pain-induced bowel incontinence. (Id.)
- The Petitioner was treated by Joseph Schwab, M.D. and Ravi Raj Patel, M.D. at the Massachusetts General Hospital on September 25, 2014. Dr. Schwab noted that the patient had a seven (7) year history of low back pain and that the most recent MRI showed degenerative changes without significant stenosis. The doctor’s impression was: lumbar spondylosis with low back pain. (Exhibit 11.)
- A clinical note dated September 25, 2014 indicates:
The patient was seen with Dr. Patel. The patient has a seven (7) year history of low back pain with incidents of bowel incontinence multiple times…has occurred during episodes of severe pain …The patient tried to track down a car who (sic) parking brake was not applied properly and started having pain after this.
MRI shows degenerative changes without significant stenosis.
Lumbar spondylosis with low back pain.
- In additional notes of the September 25, 2014 visit, Dr. Patel wrote:
Past Surgical History: multiple knee and shoulder surgeries
Long discussion had with patient and it is difficult to correlate his subjective complaints with objective findings. Especially in regards to his neurologic complaints.
The Petitioner was referred for a course of physical therapy. (Id.)
- X-rays films from September 25, 2014 revealed multi-level degenerative disc disease in the lumbar spine. The radiologist’s impression was “lumbar spondylosis with low back pain.” (Id.)
- The Petitioner was treated in a pain management program at Cape Cod Healthcare in December 2014. On December 2, 2014, he complained to Adam Brown, D.O. of constant aching, stabbing, sharp and nagging bilateral back pain that began in 2007 abated, then flared up again in 2012 and in August 2014. He indicated to the doctor that the pain averaged 3 out of 10 in a daily basis. Dr. Brown noted that the Petitioner’s pain seemed related to degenerative changes at L5-S1 that included disc herniation as well as some mild facet arthropathy. (Exhibit 10.)
- On December 11, 2014, Dr. Brown administered a lumbar interlaminar epidural steroid injection. (Id.)
- On January 15, 2015, Lorelei Francis, Physician’s Assistant at the Massachusetts General Hospital, noted that the Petitioner was cleared for full duty work without restrictions. (Exhibit 11.)
- The Petitioner returned to work in mid-January 2015. At that time, his low back pain was frequent, even daily, but manageable. (Id. and Petitioner Testimony.)
- The Petitioner worked from January 2015 until the late spring or early summer of 2015. His back pain increased yet again. Further, his legs began to go numb and he had trouble wearing his twenty-two (22) pound duty vest. He stopped working in June 2015 and was initially placed on administrative leave. (Petitioner Testimony and Exhibit 14.)
- In a letter dated June 30, 2015, Oak Bluffs Chief of Police Erik Blake informed the Oak Bluffs Board of Selectmen that he had informed the Petitioner that he was being removed from administrative leave and that his employment with the Town of Oak Bluffs had ceased. Chief Blake indicated that the Petitioner had been dishonest and misled the Oak Bluffs Police Department because he had failed to disclose during the Oak Bluffs hiring process that he had two long term injuries during his employment with the Tisbury Police Department. The Chief added that, since the Petitioner’s return from medical leave in the winter of 2015, he had used his entire amount of accrued vacation, comp. and sick time and that he had been a scheduling burden for the department. Chief Blake indicated that the Petitioner had called out sick for 6 days in May 2015 and that he had been seen at a bar on the Cape during a motorcycle meeting in that period of time. Also in May, the Petitioner had an accidental discharge of his Taser inside the police station and failed to notify a superior officer, an omission in contravention to his recent training. Chief Blake also alleged that, while he was collecting 111F benefits, he went on an extended vacation to New Orleans. The chief indicated that the Petitioner’s ability to perform his job was not up to standard. (Exhibit 14.)
- Shortly after his termination from the Oak Bluffs Police Department, the Petitioner sought employment as a police officer with the Edgartown Police Department. This employment never came to fruition. (Exhibit 3 and Petitioner Testimony.)
- The Petitioner was seen by Physician’s Assistant Renee Herberile at Cape Cod Healthcare in a follow-up visit on July 6, 2015. He reported moderate improvement from the December 2014 injection. The Petitioner was encouraged to continue with his physical therapy program. P.A. Herberlie reported in her assessment that the Petitioner had chronic minimally radiating low back pain that seemed mostly related to degenerative changes at L5-S1 that included disc herniation as well as some mild facet arthropathy. (Exhibit 10.)
- An MRI ordered by Frederick Mansfield and performed on July 29, 2015 was similar to that performed in August 2014. (Exhibit 11.)
- Dr. Brown administered another interlaminar steroid injection to the Petitioner on August 13, 2015. At that time, the Petitioner noted that he had greater than 80% improvement of his back pain following the December 2014 injection. On August 31, 2015, he informed P.A. Heberile of Cape Cod Healthcare that he had 40% to 50% improvement following the August 2015 injection. (Id.)
- The Petitioner applied for accidental disability retirement benefits on February 16, 2016. On page 5 of his application, the Petitioner noted that he had injured his lower back several times while on duty for the Tisbury Police Department and the Oak Bluffs Police Department. He cited injury dates of August 22, 2007, jumping into the vehicle to stop it, October 24, 2011, lifting up car parts at the accident scene, and August 9, 2014, working out in the police gym. (Exhibit 1.)
- Dr. Mansfield completed the Statement of Applicant’s Physician. He indicated that the Petitioner had not been able to work since June 2015 and that his low back pain had flared up in the summer of 2015 during his attempted return to work. (Id.)
- Single physician medical panel doctor Henry Drinker, M.D., an orthopedic surgeon, evaluated the Petitioner on October 13, 2016. Dr. Drinker answered all three certificate questions in the affirmative, therein indicating that he found the Petitioner to be totally and permanently incapacitated from performing his entail duties and that said incapacity was such as might be the natural and proximate result of the work injuries on account of which retirement was claimed. (Exhibit 4.)
- In his narrative report, Dr. Drinker noted that the Petitioner, who had last worked in June 2015, had a history of multiple recurrent injuries to his back while at work, i.e. August 2007, October 2011 and the August 2014 injury while doing a work out in the gym. Dr. Drinker reviewed the medical records, including the MRI studies, previously referred to herein. Dr. Drinker opined that the Petitioner could no longer function as a police officer due to “a cumulation of work related incidences.” (sic) (Id.)
- Single physician medical panel doctor Louis Bley, M.D., an orthopedic surgeon, evaluated the Petitioner on October 18, 2016. Dr. Bley answered all three certificate questions in the affirmative, therein indicating that he found the Petitioner to be totally and permanently incapacitated from performing his essential duties and that said incapacity was such as might be the natural and proximate result of the injuries on account of which retirement was being claimed. (Exhibit 3.)
- In his narrative report, Dr. Bley noted that the most recent injury suffered by the Petitioner was during the gym work out on August 9, 2014 when he was doing circuit running. Dr. Bley also noted that the Petitioner had been terminated from the Oak Bluffs Police Department and that he had attempted to sign on with another police department and was unable to do so. The doctor indicated that it was unclear why the Petitioner was unable to do so. (Id.)
- Single physician medical panel member William C. Donohue, M.D., an orthopedic surgeon, evaluated the Petitioner on October 20, 2016. Dr. Donohue answered all three certificate questions in the affirmative, therein indicating that he found the Petitioner to be totally and permanently incapacitated from performing his essential duties and that said incapacity was such as might be the natural and proximate result of the injuries on account of which retirement was claimed. (Exhibit 2.)
- The factual inaccuracies in Dr. Donohue’s narrative report include the doctor’s statement that a “series of events” transpired on August 9, 2014 during the course of the Petitioner’s employment and “ending in a fight in which he was involved that evening.”
In concluding, Dr. Donohue reported that the Petitioner has experienced repetitive injuries to his back and that as of the date of the single physician panel examination, his restrictions precluded him from performing the duties of a police officer. (Id.)
- The DCRB denied the Petitioner’s Section 7 application on February 28, 2017.
- The Petitioner filed a timely appeal on March 1, 2017.
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 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 (1973), 298 N.E. 2d 902. Unless the panel employs an erroneous standard or fails to follow proper procedures, or unless the certificate is “plainly wrong,” the local board may not ignore the panel’s medical findings. Kelley v. Contributory Retirement Appeal Board, 341 Mass. 611, 171 N.E. 2d 277 (1961).
In the present case, the single physician medical panel doctors both employed erroneous standards of law and issued certificates that were plainly wrong. Malden, supra, Kelley, supra.
After a careful review of all of the testimony and documents in this case, I have concluded that the Petitioner is not entitled to prevail in this appeal. He has not met the threshold requirement that he demonstrate that his accident occurred “while in the performance of his duties”. See Boston Retirement Board v. CRAB, 340 Mass. 109 (1959) and Lisbon v. CRAB, 41 Mass. App. Ct. 246 (1996). He has also failed to meet his burden of proving that he sustained a total and permanently disabling personal injury while in the performance of his duties as a police officer.
The Petitioner was cleared for police work in June 2014. He performed those duties without incident until August 9, 2014, notwithstanding injuries to his low back in 2007 and 2011. After both the 2007 and 2011 injuries, he was able to resume all of the essential functions of a police officer.
The evidence in this appeal reflects that the Petitioner was in the process of working out in the gym at the Oak Bluffs Police Department at the time he reinjured his back and experienced a flare-up of his symptoms. There were further complications brought on by himself when he chose not to disclose his injury or discomfort to his superiors and he went out on the scheduled shift after becoming incontinent. He must bear responsibility for this. He was in a position to mitigate the extent of his injury. Cf.
George F. Kelley v. Everett Retirement Board, CR-06-1 (Division of Administrative Law Appeals, April 27, 2007; no Contributory Retirement Appeal Board Decision), citing Retirement Board of Revere v. Contributory Retirement Appeal Board, 36 Mass. App. Ct. 97 (1994) and Yoffa v. Met. Life Insurance Company, 304 Mass. 110, 111 (1930).
All of this occurred in the context of his not disclosing his back problems at the commencement of his employment with the Town of Oak Bluffs. The evidence reflects that the 2014 flare-up occurred during a routine gym work-out. As such, the Petitioner is not entitled to claim an accidental disability regardless of whether he was carrying out department orders to remain physically conditioned. Employers in modern times routinely expect employees to try and remain in optimum physical health, take routine lunch and rest room breaks and transport themselves to and from work. None of these activities are considered to be in the actual performance of the employees’ duties under the current retirement scheme.
The fact is that the Petitioner was not in the performance of his actual police officer duties at the time he reinjured his back on August 9, 2014 and is not eligible for accidental disability retirement benefits as a result thereof. See Doris Richard v. Worcester Retirement Board, 431 Mass. 163 (2000), Namvar v. Contributory Retirement Appeal Board, 422 Mass. 1004 (1996), and Boson Retirement Board v. Contributory Retirement Appeal Board, 162 N.E. 2d 821 (1959).
Next, there is no medical evidence that the Petitioner was advised to retire on disability before June 30, 2015 because his symptoms were worsening to the point that he was totally and permanently disabled. In fact, after his termination from the Oak Bluffs Police Department, he applied for a position on the Edgartown Police Department. It is reasonable to infer that he believed himself capable of performing the duties of a police officer at that time. Another reasonable inference is that the Petitioner did not experience a worsening event or a disabling event on August 9, 2014. Because there is absolutely no evidence that any permanently disabling low back disability was manifest prior to his leaving the Oak Bluffs Police Department in June 2015, Petitioner cannot benefit from an accidental disability retirement based upon a subsequently matured disability. Vest v. CRAB, 41 Mass. App. 191 (1996).
Based on the foregoing, the decision of the Dukes County Retirement Board denying the Petitioner’s application for Section 7 accidental disability retirement benefits is affirmed.
Division of Administrative Law Appeals,
DATED: September 21, 2018