Decision  Mulvey, Craig v. Chicopee Retirement Board (CR-16-55)

Date:	03/30/2018
Organization:	Division of Administrative Law Appeals
Docket Number:	CR-16-55

• Petitioner: Craig Mulvey
• Respondent: Chicopee Retirement Board
• Appearance for Petitioner: Thomas D. Downey, Esquire
• Appearance for Respondent: Christopher J. Collins, Esquire
• Administrative Magistrate: Judithann Burke

Case Summary

The Petitioner, a former rubbish collection laborer in the City of Chicopee, has met his burden of proving that he was deprived of a proper medical panel evaluation.  The panel was not totally accurate in its recitations of the Petitioner’s medical history, and, the panel doctors also applied an incorrect standard of law.

Decision

Pursuant to M.G.L.c. 32, § 16(4), the Petitioner, Craig Mulvey, is appealing from the January 19, 2016 decision of the Respondent, Chicopee Retirement Board (CRB), denying his application for Section 7 accidental disability retirement benefits.  (Exhibit 15.)  The appeal was timely filed on February 4, 2016.  (Exhibit 16.)

I held a hearing on June 5, 2017 in Room 305 at 436 Dwight Street, Springfield, MA.  The parties submitted pre-hearing memoranda of law.  (Petitioner-Attachment A with Exhibits 1-14; Respondent-Attachment B with Exhibits 15-28.)   The hearing was digitally recorded.  The Petitioner testified in his own behalf.  The CRB did not call any witnesses.  The record was left open for the filing of post-hearing memoranda of law.  The last of the submissions was received on October 2, 2017, thereby closing the record.  (Petitioner-Attachment C; Respondent-Attachment D.)   

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:

1. The Petitioner, Craig Mulvey, was born in 1966.  He was employed by the City of Chicopee from September 26, 1994 until his ordinary disability retirement on January 14, 2016.  (Stipulation and Exhibits 1 and 18.)
2. The Petitioner worked as a rubbish collection laborer.  He was responsible for picking up and loading trash and recycling materials throughout the City of Chicopee into trash collection vehicles.  His duties also included running a hopper, picking up trash and recycling materials, loading trash into the hopper, cutting brush and grass, and, litter clean-up.  (Petitioner Testimony and Exhibit )
3. On March 20, 2013, the Petitioner twisted his back when he lifted a bag of trash.  He experienced back pain and sought treatment at the Holyoke Medical Center/Work Connection.  He remained out of work for two (2) days.  He then returned to full duty.  (Petitioner Testimony and Exhibit 25.)
4. On May 31, 2013, the Petitioner injured his back in the performance of his duties when he went to pick up a trash bag that was heavier than he anticipated.  He worked for a few more hours, and then he attempted to bend over to retrieve another trash bag.  He was unable to get up.  He used a street sign to steady himself and stand upright.  The Petitioner did not return to work following this injury.  (Petitioner Testimony and Exhibits 1 and 19.)
5. The Petitioner went to Holyoke Hospital/the Work Connection on May 31, 2013 and complained of low back pain.  The diagnosis at that time was “lumbar strain.”  (Exhibit 8.)
6. When the Petitioner returned to the Work Connection on June 4, 2013, he complained of right leg pain.  The initial diagnoses were “sciatica’ and “lumbar strain.” He was instructed to refrain from working and begin a course of physical therapy.  (Id.)
7. The Petitioner did not find physical therapy to be helpful.  (Petitioner Testimony.)
8. A July 26, 2013 MRI of the lumbar spine revealed spondylosis at L4-5 and L5-S1; L4-5 moderate broad-based right foraminal disc protrusion causing significant right neural foraminal narrowing with right L4 nerve root compression.  No disc herniation or disc fracture was noted.  (Exhibit 7.)
9. The Petitioner treated with orthopedist R. Scott Cowan, M.D. on August 30, 2013.  The doctor noted that the patient had injured himself at work on May 31, 2013 while lifting heavy trash barrels.  The doctor reported that the Petitioner was in no acute distress on that day, and, that he had a degenerative disc at the L4-5 level with associated low back pain.  Dr. Cowan indicated that there was very little radiating pain at all and that no significant numbness or weakness was detected.  Dr. Cowan reviewed the July 26, 2013 MRI and noted that the degenerative disc findings were isolated to the L4-5 level with “nerve root impingement not noted at all.”  The doctor noted further that the Petitioner had undergone left toe amputations on July 9, 2009 and July 9, 2012.  (Exhibit 10.) 
10. The Petitioner has been diabetic and morbidly obese for decades.  As a result of his diabetes, certain therapies and treatments could not be administered to treat his low back pain following the May 31, 2013 injury. (Id., Exhibit 8 and Petitioner Testimony.)
11. The Petitioner’s long-standing history of morbid obesity and uncontrolled diabetes have resulted in the diabetes-related complications of diabetic retinopathy, peripheral vascular disease, two amputations of toes on the left foot for chronic osteomyelitis¹, Charcot joint², gouty arthritis with knee problems and knee and foot surgeries.  (Exhibits 8-14 and 22-28.) 
12. The Petitioner was seen at the Baystate Health Pain Management Center on December 20, 2013 by Ashish Malik, M.D.  Dr. Malik concluded that the patient might benefit from a lumbar epidural steroid injection at the right L5 nerve root, but that his diabetes needed to be better controlled and his blood sugar levels needed to be lowered.  (Exhibit 11.)
13. The Petitioner filed an application for Section 7 accidental disability retirement benefits on November 20, 2014.  He claimed therein that, as a result of the May 31, 2013 back injury, he was permanently unable to perform the essential duties of his position.  (Exhibit 1.)
14. Thomas Gartman, M.D., the Petitioner’s primary care doctor, completed the Treating Physician’s Statement Pertaining to a Member’s Application for Disability Retirement on March 16, 2015.  Dr. Gartman’s diagnoses were “chronic back pain, traumatic amputation of toes, diabetic Charcot foot and uncontrolled type II diabetes mellitus.  The doctor cited the May 31, 2013 injury as causing the Petitioner’s permanent incapacity.  (Exhibit 17.) 
15. A three-physician regional medical panel comprised of orthopedist Nabil Basta, M.D., orthopedist George Hazel, M.D., and, neurologist Arthur Safran, M.D. evaluated the Petitioner on June 23, 20  They answered questions 1 and 2 in the affirmative, thereby indicated that they found the Petitioner to be totally and permanently disabled from performing his essential duties.  The panel doctors answered question 3 in the negative, thereby indicating that they did not find that the Petitioner’s permanent disability was such as might be the natural and proximate result of the injury he sustained at work on May 31, 2013.  (Exhibit 3.)
16. In the panel’s narrative report, Chairman Basta described the history of the Petitioner’s low back injury and the related treatment.  Dr. Basta described the July 2013 MRI as noted previously herein and noted that the panel doctors had reviewed medicals pertaining to both the Petitioner’s orthopedic issues and his other health problems, including “morbid obesity, uncontrolled diabetes with all of the complications of diabetes including:  A) Diabetic retinopathy; B) peripheral vascular disease; 3) (sic) multiple amputations of 2^nd, 3^rd and 4^th toes for osteomyletis; C) Charcot joint; D) Gouty arthritis with knee joint problems; E) Surgical history of knee surgery and foot surgery. 

Upon review of the July 26, 2013 MRI, Dr. Basta and the other panel members concluded that the findings were consistent with chronic degenerative disc disease, facet changes, spondylosis and a protruding L4-5 disc with minimal impingement.  The panel also noted a limited range of motion in all directions by 20% and localized tenderness at the S1 joint.

Following the clinical examination, the panel rendered the following conclusions:

The DIAGNOSES include the following:

1. Diabetes mellitis with extensive complications including diabetic neuropathy, peripheral vascular disease, multiple amputations of 2^nd, 3rd and 4^th toes for chronic osteomyelitis, Charcot joint, gouty arthritis with knee joint problems and surgical history of knee surgery and foot surgery.
2. Chronic low back pain

Based on the medical record review and today’s clinical examination, it is the opinion of the panel that the major underlying problems in this case are the medical issues related to uncontrolled diabetes and complications.  The panel did not find any symptoms from the back pain to substantiate his disability as a result of the low back injury sustained.  His current inability to perform the essential duties of his job is due to the complications from his non-work related diabetes.  There is no disability identified that could be related to this (sic) low back or the injury described. 

In summary, based on today’s evaluation and review of available medical records, the member is considered physically incapable of performing the essential duties of his job as described in the current job description.  Said incapacity is likely to be permanent.  Based on the history provided by the member as confirmed by the records reviewed, said incapacity is not such as might be the natural and proximate result of the personal injury sustained on account of which retirement is claimed.

(Id.)

17. After reviewing the medical panel certificate and a letter from Petitioner’s counsel requesting clarification, the CRB sought clarification from the panel. On September 24, 2015, the CRB submitted a series of six (6) questions to the panel:

1. With respect to the Panel’s commentary on page 2 of the narrative report in reference to the July 26, 2013 MRI (copy enclosed), which the panel describes as noting, among other things, a “protruding L4-5 disc with minimal impingement,” and the panel’s diagnosis of chronic low back pain, could the panel elaborate  as to why this diagnosis, which appears to be consistent with the MRI finding, would not result in such a level of impairment that prevents Mr. Mulvey from performing the essential duties of his position?  A copy of Mr. Mulvey’s job description is also enclosed.
2. Is the July 26, 2013 MRI finding of L4-5 “moderate broad-based right foraminal disc protrusion causing significant right neural foraminal narrowing with right L4 nerve root compression” consistent with the mechanism of injury Mr. Mulvey described occurring on May 31, 2013?  If not, kindly explain.
3. During its physical examination, the panel noted Mr. Mulvey had “limited range of motion in all directions by 20%” and “pinpoint localized tenderness of the S1 joint”, but ultimately concluded that, “there is no disability identified that could be related to this (sic) low back or the injury described.” Would not a 20% limited range of motion in all directions and pinpoint localized tenderness of the S1 joint suggest some degree of low back impairment?  If not, please described why these findings would not impair Mr. Mulvey from performing the essential duties of his position.
4. With respect to the panel’s diagnosis of chronic back pain, is it the panel’s opinion that despite chronic back pain, Mr. Mulvey would be expected to be able to perform the essential duties of his condition (sic), i.e. his chronic back pain is not incapacitating?  If his chronic back pain is incapacitating, is it the panel’s opinion that it is not medically possible that Mr. Mulvey’s chronic back pain is the result of the injury he sustained on May 31, 2013 (picking up trash) while in the performance of his duties? If not, kindly explain.
5.  If the panel is of the opinion that Mr. Mulvey’s chronic back pain is not incapacitating, can the panel expand on how it concluded that Mr. Mulvey could perform the essential duties of his position with chronic back pain?
6. The panel noted that Mr. Mulvey’s present inability to perform the essential duties of his job “is due to complications from his non-work related diabetes.”  The medical records indicate that Mr. Mulvey has suffered from diabetes for more than a decade, and his toes were amputated more than nine (9) years ago, yet he was able to perform his duties until the May 31, 2013 injury.  Given that Mr. Mulvey’s diabetes and toe amputations did not prevent him from performing his duties, can the panel kindly explain why it believes that these conditions now render him incapable of performing his duties?

(Exhibit 5.)

18. On October 27, 2015, the panel issued its clarification response as follows:

1. With regard to the MRI report of 26, 2013 (sic), it is the panel’s opinion that the MRI report indicated significant pre-existing multilevel degenerative disc disease at L4-5 and L5-S  Moreover, at the L4-5 level there is a broad-based disc protrusion with foraminal narrowing at multiple levels.  There is also evidence of facet changes.  In reviewing this report, it is the panel’s opinion that there has been significant pre-existing disc disease at these levels, and the injury dated May 31, 2013, when he was lifting heavy trash barrels, did result in a back strain with an exacerbation of his pre-existing degenerative disc disease resulting in his right sciatic pain.  It was the panel’s opinion that the resulting pain was related to the significant underlying condition and not the injury of May 31, 2013.

2. The findings of the July 26, 2013 MRI study were not caused by the lifting of the trash barrels on May 31, 2013.  The findings are consistent with degenerative disc disease and underlying narrowing at L4-5 and L5-S1 levels.  The injury did cause back strain with exacerbation of pre-existing pathology.

3. It was the panel’s evaluation that the range of motion was limited in all directions by 20% with localized tenderness at the S1 joint and did conclude that the back strain resulted in the 20% limited range of motion but did not result in permanent, chronic disability as noted.  It was the panel’s opinion that his limitation of 20% range of motion of the spine is due to his ongoing pre-existing findings, the back strain aggravation was transient in nature.

4. The panel’s opinion is that his chronic low back pain is the result of his pre-existing degenerative disc disease, Charcot joint and amputations.  The aggravation of the low back pain by the May 2013 injury was only transient.

5. The panel’s opinion is that chronic low back pain is incapacitating but not related to his May 31, 2013 injury.

6. It is the panel’s opinion that the pre-existing medical conditions of morbid obesity and diabetes are his main incapacitating factors.  It is true that he did work with these conditions, but in the panel’s opinion, the injury of May 31, 2013 did not cause his permanent disability.  If he did not have those pre-existing comorbid issues, that (sic) would have resolved with rest and the physical therapy course and he would resume his job description as described 

(Exhibit 6.)

19. At its January 14, 2016 meeting, the CRB voted to deny the Petitioner’s application for accidental disability retirement benefits.  A letter notifying the Petitioner of this vote was issued on January 19, 2016.  During the same January 2016 meeting, the CRB voted to grant the Petitioner ordinary disability retirement benefits.  (Exhibit 15.)
20. The Petitioner’s timely appeal was received on February 4, 2016.  (Exhibit 16.)  

Conclusion

After a careful review of all of the testimony and documents in this case, I have concluded that the Petitioner has met his burden of proving that he was deprived of a proper medical panel evaluation.  While the unanimous medical panel agreed that the Petitioner is totally and permanently disabled from his fire trash laborer collector duties, they found that the disability is not such as might be the natural and proximate result of the May 31, 2013 work injury.

However, the basis the unanimous medical panel’s analysis and collective response to Question 3 is not clear.  The panel failed to report an accurate medical history.  The panel doctors noted that the Petitioner had undergone three (3), not two (2) toe amputations.  Ergo, in not correctly noting the medical findings regarding the Petitioner’s feet, they did not render an accurate or complete clinical examination.  

This problem is complicated by virtue of the fact that the “multiple amputations”, among other issues, form a basis for the panel’s conclusion on question 3.  In noting that the Petitioner would have been able to recover from the “lumbar strain” he sustained as a result of the May 31, 2013 work injury but for his complications from diabetes, including back pain due to his Charot foot and multiple amputations, the panel has employed an erroneous standard. 

It is a basic tort law standard that has been incorporated into disability retirement law cases: the victim must be taken “as we find him.”  In this case, the Petitioner, who suffered from diabetes and related complications for several years, was able to perform his duties until the May 31, 2013 injury.  Yet, the unanimous medical panel has concluded that he is totally and permanently disabled from performing his essential duties by virtue of his diabetes and related complications.

In summary, the panel’s answers, both in the initial certificate and in the clarification are contradictory and, at best, “all over the map.”  The responses do not adequately explain the certificate answers.  See Malden Retirement Malden 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 retirement board may not ignore the panel’s findings.  Kelley v. CRAB, 341 Mass. 611, 171 N.E. 2d 277 (1961).  The panel in this case employed an erroneous standard and, given the fact that they also misrepresented the Petitioner’s medical history, their certificate was “plainly wrong.”

In conclusion, the Petitioner is entitled to prevail in this appeal.  The decision of the CRB is hereby reversed.  This case is remanded to the Respondent CRB for the purpose of convening an all new medical panel that will have accurate medical records and will be instructed to render an objective decision applying all of the correct standards of law.   

        So ordered.

 

        BY:

                                                                          

       Division of Administrative Law Appeals,

                                                                 

 

     Judithann Burke,                                                                         

     Administrative Magistrate

 

DATED:   March 30, 2018

¹Osteomyelitis is a bone infection that is usually caused by bacteria, mycrobacteria or fungi.  See https://www.merckmanuals.com/home/bone-joint-and-muscle-disorders

²Charcot joint, also known as “neuropathic arthropathy” or “Charcot foot,” refers to progressive degeneration of a weight-bearing joint, a process marked by bony destruction, bone resorption and eventual deformity due to loss of sensation.  Onset is usually insidious.  See https://en.wikipedia.org/wiki/Neuropathic-arthropy