Decision  Osborn, Shaun v. Pittsfield Retirement Board (CR-16-446)

Date:	05/25/2018
Organization:	Division of Administrative Law Appeals
Docket Number:	CR-16-446

• Petitioner: Shaun Osborn
• Respondent: Pittsfield Retirement Board
• Appearance for Petitioner: Kenneth P. Ferris, Esquire
• Appearance for Respondent: Michael Sacco, Esquire
• Administrative Magistrate: Judithann Burke

Summary of Decision

The Petitioner, a former police officer with the City of Pittsfield, has not met his burden of proving that he sustained a personal injury or was compelled to undergo a hazard in the course of his police duties that might be the proximate cause of his total and permanent gastrointestinal disability.  Accordingly, his claim for Section 7 benefits must fail as a matter of law.  

Decision

The Petitioner, Shaun Osborn, appealed from the September 22, 2016 decision

of the Respondent, Pittsfield Retirement Board (PRB)), denying his application for accidental disability retirement benefits.  The Petitioner’s timely appeal was received on October 3, 2016.   I held a hearing on October 2, 2017 in Room 305 at 436 Dwight Street, Springfield, MA.  The Petitioner testified in his own behalf.  The Respondent presented no witnesses.  I marked Exhibits 1-18.  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 post-hearing submissions was received on January 2, 2018, thereby closing the record.

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, Shaun Osborn, born in 1975, became a police officer in the City of Pittsfield in 1999.  He started on the night shift.  As a police officer, the Petitioner was expected to, and did, arrest individuals, subdue individuals, respond to traffic accidents involving serious injuries and fatalities, and, respond to other fatalities such as overdoses, suicides, and homicides. He was further required to separate individuals who were in involved in a fight to restore order, discharge firearms, physically restrain or subdue violent or resisting individuals, and pursue suspects on foot.  (Petitioner Testimony and Exhibits 3 and 4.)
2. The Petitioner had no gastrointestinal problems prior to his employment with the City of Pittsfield.  (Petitioner Testimony.)
3. The Petitioner’s family history is significant for irritable bowel syndrome and a neurofibromatosis.  (Exhibit 15.)
4. In 2004, the Petitioner was re-assigned to the daytime shift.  Accordingly, there were increased calls for police involvement (increased call volume) as well as more interaction with drugs, gangs and weapons.  (Id. and Exhibits 3 and )
5. The Petitioner’s employment file contains incident reports pertaining to injuries incurred wherein he notes having been involved in physical encounters with people.  Many of these injuries involved medical treatment and time off from work.  No Notice of Injury Reports were ever filed in relation to these incidents.  (Id. and Exhibits 2 and 7.)
6. On May 2, 2006, the Petitioner reported to Registered Nurse Janet L. Mickle at the Berkshire Medical Center that he had struggled with problems with his bowels for several years prior to 200  The Petitioner’s gastrointestinal problems intensified in 2004.  After a referral from his primary care physician, he was treated by a Dr. Dunzedor in 200  A colonoscopy revealed ulcerative colitis.  Colitis is an inflammation of the inner lining of the colon.  (Exhibits 9 and 11.)
7. During their visit on May 2, 2006, the Petitioner informed Nurse Mickle, during  a Psychiatric Evaluation for anxiety, that he had developed chest pain a couple of weeks prior and went to the emergency room for a cardiac workup.  He identified a significant recent stressor as a break up with his girlfriend of one year, which he noted “came out of the blue” and caused him great emotional stress.  He also expressed concerns about his colitis and his neurofibromatosis.  (Exhibit 11.)
8. The Petitioner was admitted to the Berkshire Medical Center in October 2007 for treatment of ulcerative colitis.  He had been experiencing incontinence, bloody stools and abdominal pain.  (Exhibit 16.)
9. The course of the Petitioner’s condition improved initially.  It then worsened to the point that he had his colon removed and a j-pouch was created.  The surgery was performed at the Berkshire Medical Center in May 2010.  At that time, the Petitioner came under the care of Timothy Counihan, M.D.  Dr. Counihan treated him for pouchitis.  After treating the Petitioner over the course of several months, Dr. Counihan changed his diagnosis to Crohn’s disease.  (Petitioner Testimony and Exhibits 9, 13 & 14.)
10. On or about December 14, 2010, the Petitioner was admitted to the Berkshire Medical Center for ulcerative colitis and reversal of loop ileostomy.  (Exhibit 9.)
11. On or about January 20, 2011, the Petitioner was admitted to the Berkshire Medical Center for an intra-abdominal abscess.  (Id.)
12. The Petitioner returned to work on light duty following this hospitalization.  He remained in a desk position inside of the police station.  (Petitioner Testimony and Exhibit 11.)
13. During a visit with Janet Mickle on February 16, 2011, the Petitioner indicated that he was still struggling with bowel issues and frequent bowel movements.  He noted that he found this very limiting for his social life.  He informed Nurse Mickle that he was very disappointed that he had no social relationships with females.  He also noted that he had been passed over again for a promotion to the rank of detective.  He also complained about sleep disturbances.  (Exhibits 7 and 11.)
14.    On or about March 13, 2012, the Petitioner was admitted to the Berkshire Medical Center for a hernia repair.  (Exhibit 9.)
15. In 2012, the Petitioner began treating regularly with Jeffrey St. John, M.D. for pouchitis.  The Petitioner was referred to Dr. St. John after he began to experience up to 12 or 15 bowel movements a day with episodes of urgency, incontinence and considerable tenesmus.  (Exhibits 8 and 12.)
16. On July 31, 2012, Nurse Mickle noted that the Petitioner was experiencing anxiety related to work stress and issues with his bowels.  (Exhibit 11.)
17. In 2013-2014, the Petitioner was performing work duties inside the station in order to be in close proximity to the toilet.  The Chief of the Pittsfield Police Department had created a special position for him.  He researched white collar crimes such as credit card fraud.  Nevertheless, he continued to have severe episodes of C. difficile infections.  He missed a great deal of work during that period and was very fatigued from the infections.  (Exhibits 2 and 16.)
18. In September 2014, the Petitioner began treating with Mark Peppercorn, M.D. for pouchitis.  In his letter to Dr. St. John on that day, Dr. Peppercorn proposed medication changes.  Dr. Peppercorn opined that the Petitioner was not suffering from Crohn’s disease.  The Petitioner reported to the doctor that he felt that stress “may exacerbate his symptoms.”  Dr. Peppercorn noted that the Petitioner was fatigued, suffered from poor sleep, and, spent about five (5) hours per day in the bathroom.  (Exhibit 12.)   
19. From September 2014 through February 2015, the Petitioner received treatment at the Berkshire Medical Center for Crohn’s disease.  This treatment included Remicide infusions.  Crohn’s disease is a chronic bowel disease that causes severe inflammation of the digestive tract.  (Exhibit 9.)
20. During the spring of 2015, the Petitioner still remained confined to desk work in the Pittsfield Police station.  (Petitioner Testimony and Exhibit 7.)
21. The Petitioner last worked in July 2015.  There is some evidence in the record that suggests the reason for his stopping work was that the desk position he had performed during the preceding years was no longer available.  (Petitioner Testimony and Exhibits 2, 13 and 15-17.)
22. On July 21, 2015, the Petitioner underwent an ileo-anal pouch excision at the Berkshire Medical Center.  (Exhibits 10 and 14.)
23. On July 28, 2015, the Petitioner applied for accidental disability retirement benefits.  (Petitioner Testimony and Exhibits 1, 2 and 7.)
24. The Petitioner’s application for accidental disability retirement benefits did not identify a personal injury or hazard undergone in the performance of his duties as proximately causing his disability.  (Exhibit 1.)
25. The Petitioner never filed any injury reports with his employer alleging that an injury he sustained in the performance of his duties brought about his ulcerative colitis or Crohn’s symptoms.  (Petitioner Testimony and Exhibits 2 and 7.)
26. The Petitioner is not receiving, nor did he ever receive, injured on duty benefits pursuant to G.L. c. 41, § 111F that were related to the condition for which he is seeking an accidental disability retirement.  (Id.)
27. Dr. St. John had completed the Statement of Applicant’s Physician on July 23, 2015.  He noted that the Petitioner was totally and permanently disabled from his police duties due to ulcerative colitis status post total colectomy with a permanent ileostomy.  On page 3, in Section 3A of his report, Dr. St. John indicated that it was “difficult to say whether or not stress may have contributed to (Petitioner’s) symptoms-i.e. diarrhea and pain may have been exacerbated by stress, but also and probably more so related to the chronic inflammation in his pouch.”  (Exhibit 14.)   
28. On November 9, 2015, Dr. Counihan reported that patients who had undergone the total proctolectomy like Petitioner had undergone had severe limitations in their activities and were prone to complications and exacerbations of symptoms based on physical and emotional stressors.  The doctor added that the complication of the j pouch surgery that the Petitioner had undergone in 2012 was the subsequent pouchitis, which was “definitely exacerbated by physical and emotional stress.” Dr. Counihan noted that, despite aggressive medical therapy, the Petitioner had to undergo removal of his j pouch and the insertion of a permanent ileostomy in the summer of 2015.  (Exhibit 13.)
29. Single physician medical panel doctor Eric R. Cohen, M.D., a gastroenterologist, evaluated the Petitioner on May 17, 2016.  He answered certificate questions 1 and 2 in the affirmative, thereby indicating that he found the Petitioner to be totally and permanently incapacitated from performing his essential duties.  Dr. Cohen answered question 3 in the negative, thereby opining that he did not find that the Petitioner’s disability was such as might be the natural and proximate result of an injury sustained or hazard undergone while in the performance of the Petitioner’s duties as a Pittsfield police officer.  (Exhibit 15.)
30. In his June 9, 2016 narrative report, Dr. Cohen set forth the following in the first paragraph of his Assessment:

The overall impression is that according to the disability category, I believe it is listed as Category GZE (Municipal Police Officers medical Standards), which is related to inflammatory bowel disease and complications including colostomy.  He is technically disabled from his occupation as noted from this categorization.  This is very likely to be a permanent disability and I would not say the disability results from a work-related incident or accident.  However, because of the gear that he needs to be carrying as a policeman including the gear belt and the Kevlar vest, that both because of how their positional rub (sic) on the area of the colostomy, he would be unable to carry out the job.  Again, this condition was not caused by his work activities.

(Id.)

Single medical panel physician Steven G. McCloy, a gastroenterologist, evaluated the Petitioner on May 31, 2016.  Dr. McCloy answered questions 1 and 2 on the certificate in the affirmative, thereby indicating that he found the Petitioner to be totally and permanently disabled from performing his essential duties.  The doctor answered question 3 in the negative, thereby indicating that he did not believe that the Petitioner’s incapacity is such as might be the natural and proximate result of a personal injury sustained or hazard undergone in the performance of his duties.  (Exhibit 16.)

31. In his narrative report of the same day, Dr. McCloy rendered the following diagnoses:  inflammatory bowel disease, status post-partial colectomy, status post total colectomy with ileostomy, status post multiple episodes of C. Difficile, continuous stool frequency and neurofibromatosis.  Regarding causation, Dr. McCloy stated, “there is no relationship between his development of ulcerative colitis, Crohn disease or neurofibromatosis, and his work as a police officer.”  (Id.)
32. PERAC requested a clarification from Dr. McCloy regarding whether the Petitioner’s police work contributed to the aggravation or acceleration of his bowel disease.  On June 16, 2016, Dr. McCloy responded:

NO.  There is no clear epidemiological research evidence to support a role for job “strain” as causal in bowel inflammatory disease. ¹ Danish researchers ² found a weak association with sedentary work compared with active work.  While there is some evidence demonstrating a role of “stress” in gastric ulcers ³ there is none for inflammatory bowel disease such as he has.

(Id.)

34. Single physician medical panel doctor Joel V. Weinstock, a gastroenterologist, evaluated the Petitioner on July 13, 2016.  Dr. Weinstock answered questions 1 and 2 on the certificate in the affirmative, thereby indicating that he found the Petitioner to be totally and permanently incapacitated from performing his essential duties.  Dr. Weinstock answered “yes” to question 3, thereby indicating the he believed the Petitioner’s disability was such as might be the natural and proximate result of a personal injury sustained or hazard undergone in the performance of his duties.  (Exhibit 17.)
35. In Dr. Weinstock’s July 15, 2016 narrative report, he commented on his conclusion regarding causation and listed his summary:

The causes of ulcerative colitis, Crohn’s disease and pouchitis remain unknown.  However, stress can be a factor that worsens symptoms and in some patients worsens the disease.  It is reasonable to assume that his job as a police officer was an aggravating factor. 
The claimant has a very stressful job.  There are ample data suggesting that he has lived with difficult abdominal pain, diarrhea and fatigue for many years.  His present ileostomy and hernia limit his activity.  I do not think his health is adequate for normal types of police work that can lead to encounters with dangerous people and stressful situation (sic).  High stress situations could affect the function of his ostomy.  I doubt that he would prove effective in a struggle, climbing over a fence, leaping to the ground or chasing a suspect.

In Summary:

The panel reviewed the member’s job description and medical records prior to the examination.

In regards to whether the member is mentally or physically incapable of performing the essential duties of their job as described in the current job description, my opinion is yes.

In regards to whether or not said incapacity is likely to be permanent, my opinion is yes.

Said incapacity is such as might be the natural and proximate result of the personal injury sustained or hazard undergone on account of which retirement is claimed.  (Emphasis added.)

(Id.)

  36. On September 22, 2016, the PRB allowed the Petitioner’s application for Section 6 ordinary disability retirement benefits.  His claim for accidental disability retirement benefits was denied. 

  37. The Petitioner filed his timely appeal on October 3, 2016.  

Conclusion

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 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. 

After a careful review of all of the testimony and documents in this case, I have concluded that the Petitioner has not met his burden of proving either:  that he sustained a compensable personal injury within the meaning of G. L. c. 32 s. 7(1); or, that his employment presented a hazard that is not common and necessary to all or a great many occupations.  Blanchette v. Contributory Retirement Appeal Board, 481 N.E. 2d 216, 20 Mass. App. Ct. 479 (1985) citing Zerofsky’s Case, 385 Mass. 590, 595 (1982).   

The Petitioner is not entitled to claim any of the incidents during the course of his police career for which he filed incident reports as personal injuries.  None of them relate to his gastrointestinal condition.  Accordingly, he is not entitled to prevail in this appeal as a matter of law.  G. L. c. 32, § 7(1) provides, in pertinent part:

     …no such retirement shall be allowed unless such injury was sustained or hazard was undergone within two years prior to the filing of such application, or if occurring earlier, unless written notice thereof was filed with the board by such member or in his behalf within ninety days after its occurrence. (Emphasis supplied.)

Neither the Petitioner nor any of his superiors filed any Notice of Injury reports on his behalf relative to the injuries he sustained during the course of his police career.  None of these events was reported to have brought on or exacerbated symptoms of his ulcerative colitis or Crohn’s disease.  He never made any claim regarding work stress.  He never collected benefits pursuant to G.L. c. 41, § 111F for any stress-incurred gastrointestinal symptoms. 

The medical records do not support the Petitioner’s claim that work stress resulted in his becoming totally and permanently disabled from a gastrointestinal condition. When he first sought counseling from Ms. Mickle, it was for anxiety and panic attacks.  At their initial visit in May 2006, the Petitioner indicated that he was emotionally distraught following a break up of his romantic relationship with his girlfriend.  In later sessions, the Petitioner expressed dissatisfaction with his social life and attributed same to his bowel  condition.  Ms. Mickle’s notes reflect that he was more anxious over the actual symptoms of his condition than any hazards of police work.  The only mention of “job stress” by Ms. Mickle is the one non-descript term “job stress.”  Ms. Mickle never related the Petitioner’s actual police duties to his anxiety or his bowel disorder. 

The notes of other treating physicians are replete with references to the Petitioner’s debilitating symptoms.  There are no specific references to any job-related injury that caused these symptoms or that the symptoms were brought about by the Petitioner’s regular exposure to stressful incidents in the course of his police work.  Rather, the Petitioner was concerned about the symptoms themselves and the difficulties he had carrying out his duties while suffering from incontinence, urgency, pain and bloody stools, as well as the myriad infections he contracted following his surgical procedures.  Further, the evidence in this case does not support Petitioner’s claim of a career-long exposure to work place hazards.  See Barnstable County Retirement Board and Richard B. Morrison v. Contributory Retirement Appeal Board, Mass. App. Ct. No. 00-P-0816 (2002), citing Sugrue, v. Contributory Retirement Appeal Board, 45 Mass. App. Ct. 1 (1998) (rejecting claim 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.”).  Job stress is common to many jobs, and general stress from work is not a sufficient basis for accidental disability retirement.  Sugrue, supra, p. 5. 

A police officer who responds to a stressful incident has not suffered a de facto personal injury or hazard undergone.  See George Beauvais v. Leominster Retirement Board, CR-12-697 (Division of Administrative Law Appeals 08/22/2014) (no Contributory Retirement Appeal Board Decision.)  It is not a hazard undergone to be exposed to trauma and fatalities, as; such exposure is common and necessary to public safety personnel.  See Aron LePage v. Fall River Retirement Board, CR-13-248 (Division of Administrative law Appeals 03/28/2014) (No Contributory Retirement Appeal Board Decision.)  As the Petitioner simply identified “high stress and anxiety” in his Section 7 application as his incident or hazard, he has not sustained a personal injury or hazard undergone as these terms are defined in G.L. c. 32, § 7 and the interpretive case law. 

Accordingly, any analysis of the medical panel findings is unnecessary.  The PRB would have been within its rights to refuse to convene a medical panel in this case.

Based on the foregoing, the PRB’s decision to deny the Petitioner’s Section 7 application is affirmed. 

           So ordered.

           Division of Administrative Law Appeals,

           BY:

           

           Judithann Burke,

          Administrative Magistrate

DATED:  May 25, 2018

¹ Heikklia, k et al. Job strain and the risk of inflammatory bowel diseases:  individual-participant meta-analysis of 95,000 men and women.  PloS One, (2014) Feb. 18;9(2).

² Boggild, H. et al. Occupation, employment status and chronic inflammatory bowel disease in Denmark.  Intl J Epid.  (1996) 25(3), 630-637

³ Huerta-Franco, M-R, et al. Effects of occupational stress on the gastrointestinal tract.  World J Gastrointest Patholphysiol.  (2013) 4(4): 108-118.