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The Petitioner, a former Recreation Facilities Supervisor for the Department of Conservation and Recreation, has not met his burden of proving either that he was deprived of a proper medical panel evaluation when he was evaluated after sustaining a shoulder injury in the performance of his duties on June 30, 2010, or, that his disabling osteoarthritis is such as might be the natural and proximate result of the same work incident.
The Petitioner, Terence O’Connor, is appealing from the April 24, 2014 decision of the Respondent, State Board of Retirement (SBR), denying his application for Section 7 accidental disability retirement benefits. The denial letter was sent on April 28, 2014. (Exhibits 1 &13.) The appeal was timely filed with the Division of Administrative Law Appeals on May 14, 2014. It was postmarked on May 12, 2010. (Exhibits 2 &14.) I held a hearing on February 27, 2017 in Room 305 at 436 Dwight Street, Springfield, MA.
At the hearing, I marked Exhibits 1-14. The Petitioner testified in his own behalf. The SBR called no witnesses. The hearing was digitally recorded. The parties filed pre-hearing and post hearing memoranda of law. (Petitioner-Attachments A and C; Respondent-Attachments B and D.) The last of the submissions was received on June 5, 2017, thereby closing the record.
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:
It is my medical opinion, with a reasonable degree of medical certainty, that if (sic) Mr. O’Connor’s initial symptoms and treatment appears to be related to impingement or inflammation secondary to the fall, arthroscopy was a subacromial decompression and distal clavicular excision, which treated that. The osteoarthritis was clearly pre-existing. His current disability is due to the osteoarthritis and not due to the injury of June 30, 2010, as it appears to be related to the natural progression of the pre-existing condition. Therefore, it is my opinion that said incapacity is not the proximate result of the work injury sustained on account of which retirement is claimed.
Said incapacity is not such as might be the natural and proximate result of the personal injury sustained or hazard undergone on account of which retirement is claimed. The main reason for this is that the mechanism of injury is too slight to give him the constellation of symptoms of which he is complaining. In addition, the member states that he had undergone bilateral shoulder arthroscopies within the last five years, which I interpret as occurring prior to his work accident. The falling into a sinkhole caused him to experience pain in the right shoulder due to an incomplete tear of the rotator cuff. The surgery done by Dr. Corsetti should have given him a functional shoulder, which it did not…There is no evidence that the incident of June 30, 2010 aggravated a pre-existing condition of arthritis of the glenohumeral joint which was recorded on x-rays and which was recorded during previous examinations. Accordingly, it is very difficult to correlate his current condition and disability to the injury of June 30, 2010, even on a more likely than not basis.
In order to receive accidental disability retirement benefits pursuant to 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 may not ignore the panel’s findings. Kelley v. CRAB, 341 Mass. 611, 171 N.E. 2d 277 (1961).
The Petitioner is not entitled to prevail in this appeal. The Respondent SBR, the Division of Administrative Law Appeals and the Contributory Retirement Appeal Board cannot substitute their collective judgment for that of the medical panel majority when it has performed its function properly. Further, most certainly, a physician who had not treated the Petitioner in three (3) plus years, Dr. Corsetti, cannot parse the panel report and attempt to have his opinions (at the Petitioner’s behest) outweigh those of the properly comprised and otherwise legitimate medical panel members. Thus, no weight was given to Dr. Corsetti’s May 2014 post-panel report proffered by the Petitioner as Exhibit 12.
In this case, the Petitioner has not met his burden of proving either that: the panel majority failed to perform its function properly by virtue of employing an erroneous standard; lacked knowledge of the Petitioner’s job description (notwithstanding the reference to administrative duties by Dr. Warnock); lacked knowledge of the Petitioner’s medical treatment history; or, was improperly comprised. It should be noted here that whether or not Dr. Warnock believed the Petitioner’s position to be largely administrative, all of the panel doctors found him to be totally disabled. As such, there is no place in this case for an argument that the panel did not have an accurate job description.
Further, the Petitioner has failed to prove a causal nexus or an exacerbation of a pre-existing osteoarthritic condition in his right shoulder as a result of the June 30, 2010 fall on the grass while in the performance of his duties and the debilitating symptoms in his right shoulder that are still present following the November 2010 surgery. The panel members all took a close look at this issue. Although they each evaluated the Petitioner separately, they unanimously concluded that the Petitioner would have recovered from the injury on June 30, 2010, particularly in light of the November, 2010 surgery, and that the Petitioner’s current limitations are due to the natural progression of his pre-existing arthritis.
The unanimous medical panel asserted, “Said incapacity is not such as might be the natural and proximate result of the personal injury sustained or hazards undergone on account of which retirement is claimed.” These are the specific words set forth in the statute, and the panel majority members have addressed the precise question they were called upon to address. Kelley, supra, at 616. See also Noone v. CRAB, 34 Mass. App. Ct. 756 (1993).
Each panel doctor invoked his/her own professional skills and medical knowledge in addressing the causation issue. Each doctor noted the existence of pre-existing degenerative changes which pre-dated the work injury.
Admittedly, Dr. Yablon’s narrative adds a complication. He reported that the Petitioner acknowledged bilateral shoulder arthroscopies within the previous five (5) years. There is no evidence that support this assertion in the case record, however, it must be noted that the reports pertaining to the Petitioner’s injury and treatment are all from and after June 30, 2010. He did not start seeing Dr. Corsetti until September 2010. I am inclined to accept Dr. Yablon’s description of his encounter with the Petitioner wherein the Petitioner acknowledged previous bilateral shoulder arthroscopies notwithstanding the paucity of medical records depicting them in this case record. The bottom line is that Dr. Yablon’s findings are consistent with those of the other panel members. Each physician indicated that the cause of the disability was due to the natural progression of the underlying changes in the Petitioner’s right shoulder. It is also noteworthy that Dr. Corsetti’s description of performing an extensive debridement of the Petitioner’s right shoulder in the process of the 2010 may support the notion that the Petitioner had undergone previous shoulder surgery.
The rationales of the medical panel majority were well documented and supported by the medical records. They are not tantamount to the application of an erroneous standard. Neither is “erroneous as a matter of law” or an “unqualified negative opinion as to causation.” Contra, Noone, supra and Narducci v. CRAB, 68 Mass. App. Ct. 127 (2007).
The Petitioner’s claim raises some credibility issues vis-a-vis his complete prior medical history, his short-term employment with DCR leading up to the June 30, 2010 incident, his short-term employment with previous employers, and his termination from employment with the DCR on the very day of the incident. All of these factors stand are of little consequence to this Decision.
For example, the issue of whether or not there was an actual hole or smaller sinkhole in the ground at the site of his fall, an event which the SBR spent much time attempting to refute, is immaterial. Certainly, the photographs depict some rough patches and unevenness in the surface of the knoll. Further, the actual fall was witnessed by a co-worker, the Petitioner reported the incident to Jesse Carter, and he sought immediate medical treatment.
Notwithstanding, based on the foregoing, the Petitioner has not met his burden of proving by a preponderance of the evidence that he is entitled to accidental disability retirement benefits. The decision of the SBR is affirmed.
Division of Administrative Law Appeals,
DATED: February 9, 2018