Decision Nancy Diede v. State Board of Retirement, CR-07-519 (DALA, 2009)

Date: 07/24/2009
Organization: Division of Administrative Law Appeals
Docket Number: CR-07-519
  • Petitioner: Nancy Diede
  • Respondent: State Board of Retirement
  • Appearance for Petitioner: Charles E. Berg, Esquire
  • Appearance for Respondent: Melinda E. Troy, Esquire
  • Administrative Magistrate: Judithann Burke

Table of Contents

Summary of Decision

Mental Retardation Worker I, who was kicked during night shift by violent client and sustained back and neck injuries, is entitled to new medical panel. The first medical panel lacked correct job description and pertinent medical MRI studies.


Pursuant to G.L. c. 32, § 16(4), the Petitioner, Nancy Diede, is appealing from the May 31, 2007 decision of the Respondent, State Board of Retirement (SBR), denying her application for Section 7 accidental disability retirement benefits. (Exhibit 1). The Petitioner did not receive notice of the SBR's decision until on or after June 25, 2007 due to an address change. Her appeal was timely filed. (Exhibits 2 and 6). A hearing was held on January 15, 2009 at the offices of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA.
At the hearing, eleven (11) exhibits were marked. The Petitioner testified in her own behalf. Both parties stated their arguments for the record. One (1) tape was 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, Nancy Diede, d.o.b. 01/03/1961, began employment with the Department of Mental Retardation (DMR) on March 7, 2004. She worked as a Mental Retardation Worker I (MRW I) at Wrentham Development Center. (Testimony and Exhibits 7 and 9).

2. The written job description for the MRW I on the third (overnight) shift which the Petitioner worked include:
…4. Monitor individuals while sleeping for diaper change, supportive and protective devices, repositioning and for other health and safety needs;
…6. Utilize proper techniques and mechanical lifts/equipment to move and transfer individuals and heavy objects to prevent injury.

(Exhibit 9).

3. The written job description also includes "general" duties applicable to all MRW Is:
…1…instructing and/or assisting all individuals, irrespective of clinical diagnosis or level of difficulty, in: eating, bathing, toileting, dressing, clothing maintenance, self preservation, manners, norms, to ensure that the human rights of the individual are met.
…6. Performs crisis intervention in emergency situations when
necessary; duties may include, but are not limited to, contacting on-call services, assisting in the evacuation of individuals in the event of a fire or a fire drill or other emergencies.

Job qualifications include the ability to lift individuals and knowledge of first aid techniques. (Id.).

4. In addition to duties set forth in the written job description, the Petitioner's job also sometimes required restraint of residents, lifting, and standing for a prolonged period. (Testimony and Exhibit 9).

5. While at work at approximately 2:00 AM on January 23, 2005, the Petitioner attempted to assist a coworker who was struggling with a resident. The resident had recently undergone eye surgery and was restrained with bilateral elbow splints so that he did not poke at his eyes. Nonetheless, he repeatedly tried to poke out his eyes while he stomped his feet on the floor. He began sliding down in the reclining chair. The Petitioner positioned herself on the left side of the resident. He pulled his knees to his chest and then kicked her forcefully. She flew backward into a metal hospital-type dining table and crashed into the furniture and the wall several feet behind the point of impact. (Testimony and Exhibits 4, 9 and 11).

6. The Petitioner sustained injuries to her lower back and neck and she hit her head. She stayed at the Center where she rested and completed her overnight shift. She did not leave due to a snow storm. At the end of her shift, she went to the Norwood Hospital for evaluation. (Id.).

7. The Petitioner was treated at Norwood Hospital for her symptoms and discharged. She remained out of work for five to six days, and then returned on light duty. She performed no physical activities. Then, the pain increased and she stopped working again. She collected Workers Compensation benefits. (Exhibits 4 and 9).

8. When the pain in her back failed to resolve, the Petitioner consulted her primary care physician, Dr. Garofalo. She was treated conservatively with anti-inflammatory medications and she was directed to physical therapy. However, her symptoms got worse. After a while, the localized back pain began radiating down into her right leg and intermittently into the left leg. (Exhibit 11).

9. X-rays of the lumbar spine taken on February 17, 2005 were normal. (Exhibits 4 and 9).

10. Dr. Garofalo's diagnosis on February 25, 2005 was "thoracic back strain."(Id.).

11. An April 16, 2006 MRI evaluation of the thoracic spine revealed mild degenerative changes in the upper thoracic region. (Id.).

12. On May 25, 2005, Dr. Garofalo cleared the Petitioner to return to work on light duty. The doctor indicated that she was not to lift a weight greater than twenty pounds. (Id.).

13. The Petitioner returned to light duty in late May 2005 and worked through September 2005 when the employer was no longer able to provide her with light duty work. (Id.).

14. Between August 16, 2005 and September 20, 2005, the Petitioner underwent treatment at the New England Baptist Hospital Pain Management Clinic. (Id.).

15. A September 20, 2005 MRI of the lumbar spine revealed: mild desiccation of the T11-T12 disc space; shallow left para-central and foraminal disc protrusion at L3-L4 contacting the left existing L2 nerve root; para-central and foraminal shallow disc herniation at L4-L5 resulting in mild narrowing of the lateral recesses along with moderate narrowing of the right foramen due to the foraminal portion of the herniation irritating the exiting L4 nerve root; and, shallow central disc herniation at L5-S1 possibly associated with a peripheral annular tear, on the left more than right, contacting the traversing nerve roots without comprise of the canal or recesses. (Exhibit 3).

16. A September 20, 2005 MRI of the cervical spine revealed: an annular bulge at C2 C3; shallow central disc protrusion at C3-C4; moderate left-sided facet arthropathy at C4-C5 with mild to moderate stenosis of the left exit neural foramen with probable irritation to the left exiting C5 nerve root; left para-central disc osteophyte complex and mild desiccation at C5-C6 with irritation at the C6 nerve root due to foraminal stenosis; central disc bulge at C6-C7, and, moderate bilateral facet atrophy; mild facet degeneration at C7-T1. (Id.).

17. The Petitioner was evaluated by Olarewaju Oladipo, M.D., an orthopedic surgeon, on May 25, 2006. She complained of pain in the lower back and thoracic region and indicated that she continued to take pain medications. She reported that she had difficulty with prolonged sitting or standing. She also reported occasional neck symptoms. At that time, she was working twelve hours per week as a cashier, but that she took frequent breaks and she had the use of a special chair. (Exhibits 4 and 9).

18. Dr. Oladipo did not view the September 2005 MRI reports at the time he issued his May 2006 report. He concluded at that time that the Petitioner had a preexisting abnormality and symptoms affecting the thoracic region. He noted that he believed she had suffered a cervical and a lumbar strain as a result of the work injury on January 23, 2005, and that she experienced an exacerbation of her thoracic symptoms as a result of the injury on January 23, 2005. Dr. Olidipo concluded that the Petitioner was partially disabled from further reemployment as an MRW I. He indicated that the disability was permanent and that the Petitioner should refrain from heavy lifting, bending and prolonged standing. He noted that weight lifting should not exceed twenty pounds. (Id.).

19. The DMR submitted an Involuntary Application for Accidental Disability Retirement in the Petitioner's behalf in November 2006. (Exhibit 7).

20. The February 2007 Transmittal of Information to a Regional Medical panel does not list any documents that were being submitted to the Panel along with the application for Involuntary Accidental Disability Retirement. (Exhibit 10).

21. Regional Medical Panel Doctors Thomas Galvin, an orthopedist, John McConville, an orthopedist, and Mark Weiner, a neurologist, evaluated the Petitioner on March 2, 2007. They answered "no" to Question 1. (Exhibit 11).

22. In the narrative report, the panel doctors summarized the history of the Petitioner's injury and medical treatment. The panel doctors noted that, while the Petitioner was performing light duty from June 2005 through December 2005, she just watched the clients who were essentially sleeping. If they woke, she walked them to the bathroom. She assisted in putting on their morning clothing. There was no heavy lifting. The panel noted that the Petitioner was let go in December because there was no further work available.
The panel indicated that MRI tests were performed in September 2005. They noted that she remained symptomatic and that she was taking 30 mg b.i.d. of OxyContin for her back symptoms.
The panel finalized its conclusion as follows:

Her current neurologic examination does not reveal any objective focal neurologic deficits. Restricted range of motion in the back was not associated with palpable spasm. Diagnostic workup did not reveal any significant disk abnormalities as reviewed by the panel today.

It is the unanimous opinion of the panel that Ms. Diede does not presently suffer any ongoing disability. It is the unanimous opinion of the panel that Ms. Diede is capable of performing work without restriction. (Id.).

The SBR denied the application for involuntary accidental disability retirement on May 31, 2007. (Exhibit 1).

23. After receiving notice of the board's denial, the Petitioner filed an appeal.

(Exhibit 6).


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 certification by a majority of the Medical Panel, that she is totally and permanently incapacitated from performing all of her essential duties as a result of an injury sustained or hazard undergone while in the performance of those duties. The Medical Panel's function is to "determine medical questions which are beyond the common knowledge and experience of the local retirement board (or Appeal Board)". Malden Retirement Board v. CRAB, 1 Mass. App. 420, 298 N.E. 2d 902 (1973). Unless the Medical Panel employs an erroneous standard, fails to follow proper procedures, or issues a Certificate that is "plainly wrong", the local retirement board may not ignore the findings of the panel. Kelly v. CRAB, 341 Mass. 611, 171 N.E. 2d 277 (1961).

After a careful review of all of the testimony and documents in this case, I have concluded that the Petitioner was deprived of a proper medical panel evaluation. The Panel lacked pertinent medical facts and did not exhibit an adequate understanding of her complete, full duty job description.
There is merit to the Petitioner's contention that the panel's report reflects that the doctors either did not have access to, or failed to consider, the complete written job description of MRW I. The job duties for this full duty position include physical work involved in protecting the safety of DMR clients along with crisis intervention and a great deal of lifting. In the panel's actual discussion of the Petitioner's job duties, they referred to those light duty tasks that she performed for several months after the injury. These duties included no heavy lifting or physical work with the clients. However, the Petitioner was terminated from her position because there was no longer any light duty work available and she would be required to perform all of the duties of the third shirt MRW I. Without an analysis of the Petitioner's full list of job requirements along with her symptoms, the panel could not possibly have performed a thorough, valid assessment of the question of total incapacity. A thorough understanding of the actual job description is of the utmost pertinence, as the standard for determining disability is whether the applicant is able to resume her essential duties.

The panel made a mere passing reference to the September 2005 MRI studies. Later in the narrative, the doctors reported that "diagnostic workup did not reveal any significant disk abnormalities". This statement appears to be inconsistent with the findings in the September 2005 MRI reports and it raises the question of whether the panel doctors actually review those September 2005 MRI studies. Although it is certainly within the purview of a medical panel to determine the severity of any diagnostic findings in rendering its conclusion, the sheer number of disk abnormalities listed on the MRI reports is cause for some comment on their applicability to a panel's conclusion. The panel should have quantified these findings and related them to the job duties required of the Petitioner.

The lumbar MRI revealed para-central and foraminal disc protrusion at L2-L3 contacting the left exiting L2 nerve root, shallow foraminal protrusion irritating the exiting L3, para-central and foraminal disc shallow disc herniation and irritation on the right exiting L4 nerve root and a shallow disc herniation at L5-S1 with a possible peripheral annular tear. The cervical MRI revealed an annular bulge at C2-C3, shallow central disc protrusion at C3-C4 resulting in mild left exit neural foraminal stenosis, moderate stenosis of the left exit neural foramen at C4-C5 with probable irritation at the exiting left C5 nerve root, desiccated disc space and irritation of the left exiting C6 nerve root, central disc bulge at C6-C7 and mild facet degeneration at C7-T1. These are all objective diagnostic findings, many indicating nerve root involvement. The panel should have discussed these findings in relation to the Petitioner's symptoms. Their conclusion that these studies merit no weight is contrary to the evidence in the record.

In conclusion, the panel demonstrated a lack of understanding concerning the duties of the Petitioner's full position and a lack of pertinent medical facts, those September 2005 MRI findings. The decision of the SBR is reversed. This case is remanded to said board for the purpose of convening an all-new medical panel which will have access to the correct job description and all pertinent medical reports. The new panel will render a lucid certificate and narrative report after a review of all essential medical and non-medical facts and the application of correct standards of law.

So ordered.

Division of Administrative Law Appeals,



Judithann Burke
Administrative Magistrate

DATED: July 24, 2009




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