Decision  O’Connor, Terence v. State Board of Retirement (CR-14-268)

Date:	02/09/2018
Organization:	Division of Administrative Law Appeals
Docket Number:	CR-14-268

• Petitioner: Terence O’Connor
• Respondent: State Board of Retirement
• Appearance for Petitioner: Thomas Downey, Esquire
• Appearance for Respondent: Kathryn Doty, Esquire
• Administrative Magistrate: Judithann Burke

Summary of Decision

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. 

Decision

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:

1. The Petitioner, Terence O’Connor, born in 1961, was employed by the Department of Youth Services from 1993 through in or about 2002.  When he left his employment there, he took a refund of his accumulated deductions.  (Petitioner Testimony.)
2. The Petitioner began his employment as a Recreation Facilities Supervisor I (RFS 1) for the Commonwealth of Massachusetts Department of Conservation and Recreation (DCR) on or about April 18, 2010.  (Exhibit 5.) 
3. As an RFS 1, the Petitioner’s duties included supervision and performance of work relative to the seasonal operation, administration, and maintenance of the assigned facility including such activities as grounds maintenance, building and equipment maintenance and repair and recreational programming.  He also performed related duties such as determining supply needs, operating and performing routine maintenance on various types of equipment and vehicles; providing information to the general public; interviewing candidates for employment; providing on the job training; and using small hand tools; and, other tools as required.  (Exhibits 5 and 11.)
4. The landscaping duties performed by the Petitioner in the fair weather months included lawn mowing, hedge trimming and clearing paths in the nearby woods.  He operated push machines, blowers, and lawn mowers.  He worked with a crew.  They also performed weed whacking.  (Petitioner Testimony.)
5. The Petitioner was assigned, along with a work crew of five (5) or six (6) others, to the site at Skinner State Park at Mount Holyoke in Hadley, MA in June 2010.  This park was open to the public in the summer months.  (Id.)
6. The Petitioner reported to work at or about noon on June 30, 2010.  At that time, he got into an argument with his immediate supervisor, Jesse Carter.  They bickered over another employee who had behaved in an aggressive manner toward the Petitioner a few days earlier.  The Petitioner had been passed over for a promotion and he asked Carter why the latter did not notify him that he did not get the job that he sought.  Carter responded that he was the boss and he could do what he wanted.  Carter told the Petitioner to get out of there, go down to the shed and find something to do.  (Petitioner Testimony.)
7. The Petitioner obtained a rake from a nearby toolshed.  While in the performance of his duties as RFS 1, and walking away from the toolshed to perform raking duties, the Petitioner caught his foot on an uneven surface that he believed to be a sinkhole in the area of a cistern.  He had been walking down a grassy incline with the rake in his hand.  He tripped and fell.  He put his arms out to break the fall.  He heard a noise in and experienced pain in his right (dominant) shoulder at the time.  Shortly thereafter, he reported the incident to Jesse Carter.  (Exhibits 5 & 10 & Petitioner Testimony.)
8. The incident was witnessed by the Petitioner’s co-worker, David Rogalski, who assisted the Petitioner in getting up from the ground and drove him to where Carter was working so that the Petitioner could report the incident.  (Petitioner Testimony.)
9. The Petitioner sought immediate medical attention.  He drove himself to Cooley Dickinson Hospital.   He was treated at the hospital for a left lower leg injury and right knee and right shoulder pain.  He reported to the admitting physician, Robert Slocum, that he had fallen into a hole at the workplace.  The initial diagnoses were “contusion of the knee” and “contusion of the shoulder.”  Shoulder x-rays revealed no evidence of fracture or dislocation.  They did show mild degenerative changes at the glenohumeral and acromioclavicular joints.   X-rays of the right knee revealed no evidence of fracture or malalignment.  The revealed moderate osteoarthritic changes in the medial compartment and mild changes at the patellofemoral joint.  The Petitioner was provided with a sling for immobilization of the shoulder and he was given two ice packs upon discharge.  (Exhibit 8, part 7.)
10. The Petitioner received a phone call on his way home from Cooley
    Dickinson Hospital.  The man, a DCR staff member from the Boston headquarters, informed him that he had been terminated from his employment due to unprofessional behavior and insubordination.  The Petitioner was of the belief that this action was attributed to his problem with Jesse Carter.  (Petitioner Testimony.)
11. In a letter dated June 29, 2010, Patricia N. Vantine, Director of Administration and Finance at DCR, informed the Petitioner that his employment with DCR was terminated effective immediately.  He was informed that the action was a result of his inappropriate and unprofessional behavior while working at Holyoke Range State Park.  He was further informed that, because he was an employee within the probationary period, he was not eligible for collective bargaining procedures and could be terminated at the employer’s discretion.  (Exhibit 10.)
12. The parties stipulated during the February 27, 2017 hearing that the date on the termination letter was a scrivener’s error and that the actual date of the termination letter was June 30, 2010, the date of the Petitioner’s injury. 
13.  The Petitioner was evaluated at the AEIOU Occupational and Urgent Health Care office on July 1, 2010.  He was treated for a right knee sprain and a shoulder injury due to a fall.  It was noted that he was taking the medication Percocet.  The provider noted that the Petitioner was to perform sitting work only and that he was to refrain from driving any work vehicles or performing and lifting or pulling.  Physician’s Assistant Kevin Harkins noted that the Petitioner had chronic low back pain and a previous bilateral knee arthroscopy.  The Petitioner informed Harkins that he had twisted his right knee while walking down a hill the previous day, falling forward and striking his right anterior shoulder.  (Exhibit 8, part 6.)
14. On July 2, 2010, the Petitioner’s employer, through a Kathleen Bresnahan, completed a Notice of Injury Report.  She indicated that the Petitioner had been walking down a grassy hill at approximately 12:30 PM on June 30, 2010 when he stepped into a hole in the ground, lost balance, and fell forward, breaking the fall with outstretched arms/hands.  She indicated that the Petitioner had a right shoulder sprain and would likely lose five (5) days or more from work.  Bresnahan also noted that the injury was reported to Jesse carter and witnessed by David Rogalski.  (Exhibit 5.)
15. On July 6, 2010, David M. Rogalski reported that he was working near the half- way garage on at approximately 12:30 PM on June 30, 2018.  Rogalski noted that he had seen the Petitioner slowly walking down the grassy hill in front of the garage when he stumbled and fell forward down the hill.  He fell to his knees first and his momentum carried his upper body forward.  He put out his right arm to stop his fall, then complained of pain and rolled over onto his back.  Rogalski indicated that he went over the assist the Petitioner who was complaining of pain, then drove him to the halfway house office so that he could report the incident to Carter.  (Exhibit 5.)
16. The Petitioner’s request for Workers’ Compensation benefits was approved effective July 1, 2010.  He eventually accepted a lump sum settlement.  (Exhibit 10.)
17. In an undated note to his employer which was received by the DCR Human Resources Department on July 22, 2010, Jesse Carter reported that he had inspected the grounds area where the Petitioner reported the fall had occurred and that he found no evidence of any hole or obstruction in the reported area.  Carter attached photographs of the reported area.  These photograph show several dark spots on the grassy slope and different angles of the same slope.  They do not depict any discernable holes in the ground.  (Exhibit 5.)   
18. The Petitioner’s knee pain eventually resolved.  His shoulder discomfort did not. (Petitioner Testimony.)
19. On July 19, 2010, the Petitioner was evaluated by Thomas Rossi, M.D., an orthopedic surgeon.  The doctor obtained a history of the work event.  He noted the Petitioner’s complaint of limited ability to elevate his right shoulder.  The doctor ordered an MRI.  [Exhibit 8(4).]
20. The August 10, 2010 MRI performed at the Mercy Medical Center revealed degenerative changes in the AC and glenohumeral joints.  A partial tear of the supraspinatus tendon was also noted.  (Id.)
21. The Petitioner saw Dr. Rossi, M.D. on August 19, 2010.  The doctor reported that the recent MRI of the Petitioner’s right shoulder revealed a complete supraspinatus rotator cuff tear, degenerative changes of the glenohumeral joint with other abnormalities.  The doctor noted that the Petitioner complained of pain and a great deal of difficulty lifting his arm.  [Exhibit 8(5).]
22. The Petitioner saw John Corsetti, M.D., of New England Orthopedic Surgeons on September 1, 2010.  He interpreted the MRI as revealing an essentially full thickness rotator cuff tear.  After ordering and reviewing additional x-rays, Dr. Corsetti concluded that the Petitioner’s diagnoses were:  right shoulder rotator cuff tear superimposed on glenohumeral arthritis.  Surgery was recommended.  (Id.)
23. Dr. Corsetti performed four (4) operative procedures on the Petitioner on November 12, 2010:  arthroscopic subachromial decompression, CA ligament and bursectomy; arthroscopic distal clavicle excision; and, debridement of intraarticular space, extensive.  Dr. Corsetti opted against repairing the rotator cuff tear due to the degenerative changes in the Petitioner’s right shoulder.  [Exhibit 8(2)]
24. The Petitioner continued to treat with Dr. Corsetti through April 2011. Throughout that period, the Petitioner continued to complain of right shoulder pain.  [Id. and Exhibit 8(1).]
25. Richard Anderson, M.D. performed an Independent Medical Examination (IME) of the Petitioner on June 18, 2011.  The Petitioner complained of right shoulder pain with activity.  Dr. Anderson’s diagnoses were “rotator cuff tear right shoulder” and “glenohumeral arthritis right shoulder.”  The doctor opined that the Petitioner had reached maximum medical improvement.  He added that the pre-existing condition of glenohumeral arthritis was the major cause of the Petitioner’s disability and need for further evaluation and treatment.  [Exhibit 8(4).]
26. The Petitioner saw Dr. Anderson again on January 28, 2012.  On that day, the doctor indicated that the reported work injury on June 30, 2010 likely resulted in an aggravation of the Petitioner’s pre-existing arthritic condition and a small rotator cuff tear.  Dr. Anderson reported that the Petitioner did have work capacity, but that his restrictions included avoiding any repetitive overhead lifting and a lifting restriction of ten (10) pounds.  (Id.) 
27. Steven Silver, M.D. performed an IME on August 14, 2012.  His diagnosis was “status post subacromial decompression and rotator cuff tear with degenerative arthritis.”  Dr. Silver opined that the degenerative changes were pre-existing and were exacerbated by the June 30, 2010 injury.  (Exhibits 7 and 12.)
28. The Petitioner applied for accidental disability retirement benefits on August 6, 2013.  On page 2 of his application, the Petitioner noted that he sustained an injury to his right shoulder on June 30, 2010 when in the course of his work as a park supervisor he stepped in a hole and fell on his right shoulder.  (Exhibit 3.)
29. In the Treating Physician’s Statement, Dr. Corsetti noted that the Petitioner was totally and permanently disabled due to a rotator cuff tear of the right shoulder and right shoulder glenohumeral arthritis.  The doctor indicated that the disability was caused by the fall on June 30, 2010 and that the pre-existing arthritis was asymptomatic prior to the fall.  (Exhibit 4.)
30. Single physician medical panel doctor Suzanne Miller, M.D. evaluated the Petitioner on December 3, 2013.  She answered certificate questions 1 and 2 in the affirmative, thereby indicating that she found the Petitioner to be totally and permanently disabled.  She answered “no” to question 3, indicating that she did not believe the incapacity was such as might be the natural and proximate result of the personal injury sustained or hazard undergone on account of which retirement is claimed.  [Exhibit 7(2).]
31. In her narrative report, Dr. Miller noted that the Petitioner’s job duties required him to perform heavy lifting.  Dr. Miller concluded that there was likely a causal relationship between the rotator cuff tear and the work related injury and that the arthritic changes predated the injury.  The doctor reported that, although there was an aggravation of the Petitioner’s pre-existing condition, she did not believe that the aggravation was the primary cause of the Petitioner’s current disability.  She reported further that the aggravation would have improved to the point where the Petitioner could resume his duties, however, the osteoarthritis was “clearly the primary and major factor in his disability status.”  (Id.)
32. Single physician medical panel doctor Richard N. Warnock, M.D. evaluated the Petitioner on December 18, 2013.  He concluded that the Petitioner was totally and permanently incapacitated from performing his essential duties, but that the disability was not such as might be the natural and proximate result of the June 30, 2010 work injury.  [Exhibit 7(1).]
33. In his narrative report, Dr. Warnock noted that the Petitioner’s job requirements appeared mainly administrative, although there was a requirement that he use a power mower and small hand tools.  The doctor noted that the Petitioner was terminated the day before his accident and that it was unclear whether he was supposed to be at work on June 30, 2010 or not.  He noted that this was clearly not an orthopedic issue.  Dr. Warnock’s diagnoses were “impingement syndrome right shoulder status post arthroscopy” and “osteoarthritis right shoulder.” Regarding causation, Dr. Warnock stated the following:

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.

 

(Id.)

 

34. Single physician medical panel doctor Isadore Yablon, M.D. evaluated the Petitioner on January 8, 2014.  He concluded that the Petitioner was totally and permanently disabled from performing his essential duties, but that the disability was not such as might be the natural and proximate result of the June 30, 2010 work accident.  [Exhibit 7(3.]
35. In his narrative report, Dr. Yablon noted that the Petitioner denied that he had pain in his shoulders prior to the injury of June 30, 2010, however he indicated to the doctor that he had bilateral arthroscopic examinations of both shoulders within the past five (5) years.  Dr. Yablon’s diagnosis was “right shoulder pain due to degenerative arthritis.”  Dr. Yablon made the following comments pertaining to causation:

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.

 

(Id.)

 

36. In a letter dated April 28, 2014, the SBR notified the Petitioner that his application for accidental disability retirement benefits was denied.  (Exhibit 1.)
37. The Petitioner’s timely appeal was received on May 14, 2014.  (Exhibit 2.)

Conclusion

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.

            So ordered.

            Division of Administrative Law Appeals,

            BY:

 

            Judithann Burke

           Administrative Magistrate                                          

 

DATED:  February 9, 2018