Petitioner, a former Environmental Analyst in the Massachusetts Department of Transportation, has not met her burden of proving either that she sustained a personal injury or underwent a hazard in the course of her employment in her final two years of employment, as required pursuant to G.L. c. 32, § 7(1). The Petitioner’s application for accidental disability retirement must be denied. The State Board of Retirement was not required to convene a regional medical panel.
The Petitioner, Andrea Norton-Wenzel, is appealing from the October 21, 2016 decision of the Respondent, State Board of Retirement (SBR), denying her application for Section 7 accidental disability retirement benefits. (Exhibit 3.) The appeal was timely filed on October 25, 2016. (Exhibit 4.) I held a hearing on October 18, 2017 at the offices of the Division of Administrative Law Appeals, One Congress Street, Boston, MA.
The parties submitted pre-hearing memoranda of law. (Petitioner-Attachment A with Exhibits 1-32; Respondent-Attachment B with Exhibits 33-37.) During the hearing, the Petitioner testified in her own behalf. The Respondent presented no witnesses. The hearing was digitally recorded. The record was left open for the filing by the parties of post-hearing memoranda of law. The Respondent’s closing memorandum was received on December 19, 2017 thereby closing the record. (Attachment C.) The Petitioner did not file a post-hearing memorandum.
FINDINGS OF FACT
Based on the testimony and documents submitted at the hearing in the above-entitled matter, I hereby render the following findings of fact:
- The Petitioner, Andrea Norton-Wenzel, born in 1956, began employment with the Massachusetts Department of Transportation (DOT) as an Environmental Analyst in 1992. Her job duties included advertising/directing personnel of applicable permitting requirements, preparing and/or reviewing wetland and water resource permits and developing impaired waterway reports. She was required to perform environmental analysis of all DOT Project Design projects at the District Level to ensure compliance with state and federal environmental policy. Her job responsibilities required significant intellectual abilities and reasoning in order to properly function in her role. (Exhibits 1 and 33 and Attachments A and B.)
- The Petitioner was divorced in or around 198 Prior to her divorce, she had been the victim of spousal abuse physically, psychologic and sexually. She eventually moved out of the marital home and into a shelter with her then two year old daughter. In 1986, her daughter was molested by a half-brother. She was also involved in a paternity suit involving her son. (Exhibit 13 and Petitioner Testimony.)
- The Petitioner has been involved in mental health therapy for a number of years. She has treated with Carol Pierson Ryser, Ph.D. off and on from and after the mid-1980’s. (Id. and Exhibit 34.)
- In October 2003, the Petitioner was involved in a car accident wherein her car was rear-ended. Her head struck the steering wheel. This accident was not work-related. (Exhibit 3)
- On February 19, 2004, the Petitioner was involved in a serious car accident in which her car was rear ended and her head hit the steering wheel. The accident was not work related. (Id.)
- On February 22, 2004, the Petitioner was involved in another motor vehicle accident. This accident was not work-related. (Id.)
- The Petitioner was experiencing a great deal of stress at work in early 2004. She was experiencing sexual harassment from a co-worker. She complained to her supervisor who told her to move her desk so that she did not have to work in the same section of the trailer as the man who was behaving inappropriately. (Petitioner Testimony and Exhibit 33.)
- As she was moving items from her desk on March 5, 2004, the Petitioner tripped and hit her head on a metal file cabinet. While she refused immediate medical attention, she left work early, at approximately 1:15 P.M. (Id. and Exhibits 1 and 34.)
- The Petitioner remained out of work from March 5, 2004 through September 16, 2004 when she returned part-time. (Exhibits 33, 35 and 37.)
- Immediately following the head injury, the Petitioner was unable to function due to neck pain, vision changes, wooziness, and memory/concentration issues. (Petitioner Testimony and Exhibit 6.)
- The Petitioner was treated for her neck injury by a neurologist, Edward Fisher, M.D. (Exhibit 20.)
- In addition to her neurological and cognitive impairments, the Petitioner developed significant emotional distress following the workplace injury. She was seen by Dr. Ryser who referred her to Psychiatrist Paul R. Draskoczy, M.D. for medication purposes. Dr. Draskoczy diagnosed depression, post-concussive disorder and Post Traumatic Stress Disorder (PTSD). He prescribed several anti-depressant medications. During this treatment, the Petitioner continued to experience headaches, cognitive impairments, noise sensitivity, emotional distress, insomnia and weight loss. (Petitioner Testimony and Exhibits 6, 13 and 14.)
- The Petitioner returned to work twenty (20) hours per week in September 2004 and thirty (30) hours per week in early 2005. She continued to have difficulties on her return to work. (Petitioner Testimony and Exhibits 15-17.)
- The Petitioner returned to work full time on May 22, 2005. (Exhibits 33, 35, and 37.)
- A Worker’s Compensation claim was filed, and a without prejudice agreement was entered into on December 14, 2005 wherein the Self-Insurer agreed to pay her a sum of partial disability benefits and various medical treatment bills. (Exhibit 27.)
- The Petitioner did not request any job modifications following her return to work. (Petitioner Testimony and Exhibit 33.)
- The Petitioner received positive Employee Performance Evaluations following her return to work. (Id. and Exhibit 34.)
- The Petitioner’s demeanor changed in 2013 when she was not selected for a District Environmental Engineer position. Her supervisor noted that she became angry and defiant after being passed over for the promotion. (Exhibit 33.)
- The Petitioner began to experience a relapse of her cognitive symptoms in 2013. On July 24, 2013, she started meeting with Psychologist Federick Burrage for work-related stress. He diagnosed her with signs of depression, symptoms of PTSD and cognitive function difficulties. Dr. Barrage noted that a new supervisor had increased the Petitioner’s workload and changed her procedures, which was difficult for her, since she had significant difficulties with new learning, receptive language comprehension, attention and memory retention. (Exhibit 10.)
- The DOT has concerns for the Petitioner’s overall fitness to work, “…due to her emotional instability.” On April 25, 2014, she was placed on administrative leave pending a fitness for duty evaluation resulting from concerns about her ability to perform the essential duties of her job without posing a threat to herself or others. She did not return to her position after that day. (Exhibits 1 and 33.)
- On May 3, 2014, Dr. Barrage noted that the Petitioner was suffering from a major depressive episode and a recurrence of PTSD symptoms. He noted again that her documented cognitive disabilities (caused by her previous brain injury) have worsened due to the stress of recent changes in her job duties, procedures and autonomy. The doctor opined that she was 100% disabled from her duties at work. (Exhibit 10.)
- On May 14, 2014, the Petitioner was seen for a fitness for duty psychiatric evaluation with Dr. Michael Rater. The doctor diagnosed mood disorder, personality disorder and cognitive disorder secondary to traumatic brain injury, personality change after traumatic head injury, history of traumatic head injury, and work problems. (Exhibit 29.)
- The Petitioner retired on June 30, 2015 with an Early Retirement Incentive Payment. She was still on administrative leave at that time and was determined to be eligible for the ERIP. (Exhibit 37.)
- The Petitioner applied for accidental disability retirement benefits on April 12, 2016. (Exhibit 1.)
- The Petitioner’s Section 7 application included a Statement of Applicant’s Physician from Internal Medicine Specialist and Cardiologist David Criss, M.D. (Exhibit 2.)
- In a letter dated October 21, 2016 the SBR notified the Petitioner that it would not process her application because she had not substantiated a compensable injury pursuant to G.L. c. 32, § 7. (Exhibit 3.)
- The Petitioner filed a timely appeal on October 25, 2016. (Exhibit 4.)
The Petitioner is not entitled to prevail in this appeal. She has not met her burden of proving that she meets the threshold requirements for the convening of a regional medical panel. In order to receive accidental disability retirement benefits under G.L. c. 32, § 7, an applicant must make out a prima facie case that she is totally and permanently incapacitated from performing the essential duties of her position as a result of a personal injury sustained or hazard undergone while in the performance of her duties.
When an applicant asserts that she is disabled due to an emotional condition, she must prove that she sustained a personal injury based on a single incident or series of incidents; or, that the injury is the result of exposure to an identifiable condition that is not common and necessary to all or a great many occupations. Blanchette v. Contributory Retirement Appeal Board, 20 Mass. App. Ct. 479, 484 (1985) quoting Zerofski’s Case, 385 Mass. 590, 595 (1982). The Petitioner has proffered the “identifiable condition” prong of the emotional disability criteria.
After a careful review of all of the testimony and documents in this case, I have concluded that, while she sustained a serious head injury in 2004 that resulted in cognitive impairments and emotional lability, she has not met her burden of proving either: that after working well and successfully for nearly eight (8) years after her return to full time employment, she then sustained a compensable personal injury within the meaning of G. L. c. 32 s. 7(1); or, that her employment during the years 2013 and 2014 presented a hazard that is not common and necessary to all or a great many occupations. Blanchette, supra, citing Zerofsky’s Case, supra. Unfortunately, some degree of workplace ill will is all too common in many occupations. See Maginnis v. State Board of Retirement, CR-04-1095 (August 29, 2006) (affirmed Contributory Retirement Appeal Board April 2, 2007.) The same can be said for working with new supervisors who implement different procedures and alter an employee’s workload.
Neither the Petitioner nor any of her superiors filed any Notice of Injury reports on her behalf relative to any of the events set forth in the Findings of Fact herein between 2013 and 2014 until she was placed on administrative leave due to concerns for her safety and mental stability in late April 2014. It is a well-established principal in retirement law that G. L.c. 32 s. 7(1) shares with the Workers’ Compensation statute the definition of a “personal injury” which excludes any “mental or emotional disability arising principally out of a bona fide personnel action…except such action which is the intentional infliction of emotional distress.” (Emphasis added). See Zavaglia v. CRAB, 345 Mass. 483 (1963) and Sugrue v. CRAB, 45 Mass. App. Ct. 1 (1998) for this proposition. The Sugrue Court was aware of the legislative change in 1986 wherein the Chapter 152 s. 1(7A) definition of “personal injury” was amended to include the words “within the meaning of this chapter” when said Court stated “[w]e observe, however, that it has been long recognized both well before and after 1986 that the language of Chapter 32 s. 7(1) should be interpreted in harmony with Chapter 152.” Sugrue, supra at page 4. CRAB has followed this line of reasoning in recent years, as well. See Barnstable County Retirement Board and Richard Morrison v. CRAB, Mass. App. Ct. No. 00-P-0816 (2002).
The Petitioner has averred that she was made to fail in her job due to a staff change, a new supervisor and a change in workload and routine. In effect, she has contended that the limitations she experienced after the 2004 head injury were exacerbated after eight (8) years of adequate or better than adequate performance of her duties. It must be noted that she had a nearly full recovery following the 2004 injury. The recurrence of her PTSD and depression were not the result of any compensable work injury. She was not the victim of a subtle campaign of harassment during the last year or two her employment. Nothing she has described concerning any changes in duties or the expectations of her supervisor served to establish a hostile work environment wherein the Petitioner was unable to perform her duties as she saw fit. Her cognitive limitations may have come into play, but the employer and the retirement system are not obliged to bear responsibility for any information processing or attention difficulties she experienced when faced with new information and instructions. The actions of the employer that are described in this case are bona fide personnel actions within the purview of DOT. Although the change in the chain of command took the Petitioner out of her comfort zone, there is no evidence that this appointment, the reorganization of the DOT office or her accountability were made with any intention of inflicting emotional distress upon her. The Petitioner has not demonstrated any intentional infliction of emotional distress by her employer. See Barnstable County Retirement Board and Richard B. Morrison v. Contributory Retirement Appeal Board, supra and Sugrue, supra. (Each decision rejected claims that a series of events at work including departmental politics, town politics, and interpersonal conflicts with fellow employees or Appointing Authorities collectively caused emotional disability noting, “the entire accumulation of episodes does not rise to the level of an injury sustained in the performance of his duties.”). A claim based on the theory of gradual deterioration must be denied if, as in most cases involving conflicts at work, the exposure did not rise to the level of an “identifiable condition that is not common and necessary to all or a great many occupations. See Zajac v. State Board of Retirement, CR-12-444 (Contributory Retirement Appeal Board August 21, 2015) (affirmed Zajac v. State Board of Retirement, Hampden County Superior Court Docket No. 1579CV00660 August 8, 2016.) It is noteworthy that the Petitioner had enough confidence in her abilities in 2013 to apply for another position. The record reflects that when she was not selected for the position, her attitude changed.
It must also be noted here that the Petitioner had a history of trauma long before her head injury in March 2004. She had been in an abusive marriage. She had other family problems for which she received mental health counselling. Just weeks before her March 5, 2004 fall at work, she had been involved in two automobile accidents in which she hit her head. Thus, the issue of whether all of the trauma associated with her PTSD, her cognitive limitations, and her major depression can be tied exclusively to the March 5, 2004 head injury is murky.
Any analogy to Vest v. Contributory Retirement Appeal Board, 41 Mass. App. 191 (1996) is inapposite in this case. The Petitioner’s disability did not mature after she ceased employment. Rather, her symptoms were so severe that her employer ordered her to stop working and undergo a fitness for duty evaluation. Within weeks, both her psychologist and the doctor who performed the evaluation each concluded that she was incapable of performing her duties due to mood, personality and cognitive disorders.
Based on the foregoing, the SBR’s decision to deny the Petitioner’s Section 7 application without convening a medical panel is affirmed.
Division of Administrative Law Appeals,
Judithann Burke, Administrative Magistrate
DATED: April 20, 2018