Pursuant to G. L.c. 32, § 16(4), the Petitioner, Michael Pellin, had appealed from the November 25, 2008 decision of the Respondent, Franklin Regional Retirement System (FRRS), denying his request for accidental disability retirement benefits following a medical panel evaluation where the certificate question concerning causation was answered in the negative. (Exhibit 1.) The Petitioner filed his first timely appeal on December 11, 2008. (Exhibit 2.) Michael Pellin v. Franklin Regional Retirement System, CR-08-805.
The case was submitted on the documentary record. On November 2, 2012, Administrative Magistrate Sarah H. Luick issued a decision in which she concluded that that Petitioner had failed to meet his burden of proving that the medical panel lacked pertinent facts or employed an erroneous standard. The November 2012 Decision is attached hereto as Appendix A. The decision and the original thirty-three exhibits are hereby incorporated into the current case record. Pellin, supra, (Division of Administrative Law Appeals, November 2, 2012.)
On September 4, 2013, the Contributory Retirement Appeal Board indicated that it had incorporated Findings of Fact 1-32 and 34-39 as its own and amended Finding of Fact 33 to read:
33. Starting on March 20, 2007, Mr. Pellin’s activities came under surveillance. The report of the investigator found him on April 21, 2007, “periodically…bending, kneeling crouching and walking during the late afternoon as he worked on his camper.” The investigator observed, however, that Mr. Pellin was walking very slowly the entire time and bending, crouching and kneeling with apparent difficulty most of the time.” On May 7, 2007, the investigator observed Mr. Pellin “crouching and bending at the waist with no apparent difficulty as he cleaned the porch and the love seat” and did not “appear to have any restrictions whatsoever.” The investigator concluded that most of the time Mr. Pellin did appear to have difficulty crouching and bending, but that there were occasions on which he appeared to have no restrictions. (Exhibit 12.)
The Contributory Retirement Appeal Board (CRAB) vacated the DALA Decision and remanded the matter to the FRRS with instructions to request that the medical panel reconsider its conclusion on causation. CRAB concluded that the regional medical panel’s certificate was legally insufficient because its negative opinion concerning causation was not supported or explained by the certificate or the medical record. Pellin, supra, (Contributory Retirement Appeal Board, September 4, 2013.) The CRAB Remand Order is attached hereto as Appendix B.
A remand hearing was scheduled to be held on December 4, 2017 in Room 305 at 436 Dwight Street, Springfield, MA. On that day, I conferred with both counsel. We all agreed that the matter would be submitted on the original documents and fourteen (14) additional exhibits. The parties filed pre-hearing and post hearing memoranda of law. (Petitioner-Attachments A & C; Respondent-Attachments B & D.) The last of the written submissions was received on March 9, 2018, thereby closing the record.
The additional exhibits include:
Exhibit No. Document Description
34 Petitioner’s Hearing Memorandum from June 15, 2012
35 June 18, 2012 letter to Magistrate Luick from Attorney Sacco
36 November 2, 2012 DALA Decision
37 November 14, 2012 letter to CRAB from Petitioner’s counsel with
Including Petitioner’s objections to DALA Decision
38 CRAB’s November 21, 2012 acknowledgement of Petitioner’s
39 Letter and memorandum of law submitted to CRAB by Petitioner
40 Letter and response to objections to CRAB from FRRS counsel
41 Letter from Chair of CRAB to both counsel with CRAB decision
of September 4, 2013
42 November 17, 2014 letter from PERAC regarding medical panel
43 December 11, 2014 medical panel report and January 22, 2015
regional medical panel certificate
44 Letter from board counsel to Pierre Boutin, M.D. seeking
45 July 31, 2015 review of medical panel certification
46 February 24, 2016 Notice of Action
47 Petitioner’s timely appeal, Michael Pellin v. FRRS, CR-16-125
48 Transmittals to panel doctors
ADDITIONAL FINDINGS OF FACT
40. On January 22, 2015, regional medical panel Doctors Boutin and Marvin, orthopedists, and Ellis, a neurologist, reported that they evaluated the Petitioner on December 11, 2014. They answered all of the certificate questions in the affirmative. The panel reviewed all of the pertinent medical information and conducted a clinical evaluation. Their diagnosis was “chronic back pain secondary to lumbar strain, osteoarthritis of the lumbar spine, and exaggerated by the individual’s obesity and deconditioning.” Regarding causation, the panel doctors reported:
The disability is likely not (sic) the direct result of the work-related incident or accident described. Arachnoid cysts in the thoracic region appear to be usually congenital rather than acquired and the syrinx almost surely antedates the finding of the arachnoid cyst on imaging tests. The vast majority of arachnoid cysts are found as an incidental finding.
However, the possibility of the risk of re-injury is great for this individual if he were to return to work. He has now been out of work for seven years and is not conditioned to perform the type of work he performed previously. He is doing nothing at the present time that requires any kind of heavy lifting in the 40 or 50 pound range. Although he seems to be capable of driving and attending to the needs of his grandchildren, it is unclear that he does anything that would put him into further risk with that. We do not believe that this individual would be able to return to his line of work where there would be the potential need for him to do some heavier lifting; therefore in that respect, the disability would be related to his job description.
Therefore, based on the examination today, it is our opinion that the member is physically incapable of performing the essential duties of his job as described in the current job description and that said incapacity is likely to be permanent. It is also our opinion that 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.
41. In a letter dated March 9, 2015, FRRS counsel asked the medical panel doctors to
clarify whether they found the Petitioner to be disabled due to his arachnoid cysts or whether it was medically possible that his September 25, 2006 injury might be the natural and proximate cause of his incapacity, either by way of direct acute injury or by way of aggravation (fundamental worsening) of his underlying condition. (Exhibit 44.)
42. On July 21, 2015 the panel doctors responded to the request for clarification:
I (sic) have reviewed the prior diction and note that the work “not” is inappropriate in the statement of the disability. The disability is likely the result of the work-related incident or accident described. The initial injury resulting in back pain has produced a situation wherein Mr. Pellin cannot return to a physical labor occupation because of the likelihood of a recurrence of his back pain. The description and explanation concerning the arachnoid cyst situation was supplied for education al purposes. He is not disabled by the arachnoid cyst. He is disabled by the injury to his lower back which would likely be further exacerbated were he to return to physical labor.
43. The FRRS denied the Petitioner’s Section 7 application on February 24, 2016. (Exhibit 46.)
47. The Petitioner’s timely appeal was received on March 9, 2016. (Exhibit 47.)
The Petitioner is entitled to prevail in this appeal. He has met his burden of proving that he is entitled to accidental disability retirement benefits by virtue of the back injury he sustained on September 25, 2006 in the performance of his duties. He has proffered a unanimous positive medical panel certificate to support his position. There is also ample additional medical evidence in this case to support his position. See Blanchette v. Contributory Retirement Appeal Board, 20 Mass. App. Ct. 479, 483 N.E. 2d 216 (1985), Lisbon v. Contributory Retirement Appeal Board, 41 Mass. App. Ct. 246, 255, 670 N.E. 2d 393, 399 (1996) and Campbell v. Contributory Retirement Appeal Board, 17 Mass. App. Ct 1018, 1019, 40 N.E. 2d 213, 214 (1984.)
The medical panel was vested with the responsibility for determining the medical questions that are beyond the common knowledge and expertise of the local retirement board and CRAB. In addressing the certificate questions and issuing the July 2015 clarifications the medical panel’s analysis is clear and concise. The doctors reached their conclusions after a review of all of the medical records and work history. They conducted an appropriate clinical examination. They did not apply any erroneous standard.
Accordingly, the decision of the FRRs denying the Petitioner’s application for accidental disability retirement benefits is reversed. This matter is remanded to said board for the purposes of granting the application and awarding the benefits.
Division of Administrative Law Appeals,
DATED: May 11, 2018