Decision Robert Dunham v. PERAC, CR-07-1143 (DALA, 2009)

Date: 09/25/2009
Organization: Division of Administrative Law Appeals
Docket Number: CR-07-1143
  • Petitioner: Robert Dunham
  • Respondent: Public Employee Retirement Administration Commission (PERAC)
  • Appearance for Petitioner: Paul Hynes, Esq.
  • Appearance for Respondent: Judith Corrigan, Esq.
  • Administrative Magistrate: Maria A. Imparato

Table of Contents

Case Summary

This application for accidental disability retirement benefits is denied because the presumption raised under G. L. c. 32, s. 94 has been successfully rebutted by competent evidence, and the Petitioner has failed to meet his burden of proof with respect to causation under G. L. c. 32, s. 7(1).



Robert Dunham filed a timely appeal under G. L. c. 32, s. 16 (4) of the December 7, 2007 decision of the Public Employee Retirement Administration Commission (PERAC) to remand to the Massachusetts Port Authority Employees' Retirement System ("Board") under G. L. c. 32, s. 21(d) its approval of his application for accidental disability retirement benefits as based upon unlawful procedure. (Exs. 1, 2, 3.)

A hearing was scheduled for May 13, 2008. By letter of May 12, 2008, the parties jointly requested that the case be handled as a Submission Without a Hearing under 801 CMR 1.01(10)(c). (Ex. 31.) The record closed on July 1, 2008 with the filing of briefs. The case was assigned to me on September 16, 2009.
I marked documents into evidence. (Exs. 1-31.) I marked the Respondent's pre-hearing memorandum "A" for identification. A list of exhibits appears on the last page of this decision.


1. Robert Dunham, d.o.b. 6/22/1962, worked as a firefighter for Massport from March 16, 1992 to June 14, 2005. (Ex. 9.) He was retired for ordinary disability in or about October 2006. (Petitioner's Memorandum of Law.)

2. Mr. Dunham's job duties included providing safety and emergency services at Logan International Airport and other Massport facilities through comprehensive risk based-all hazards planning, including mitigation, preparedness, response and recovery. He responded to surrounding communities in accordance with mutual aid agreements. (Ex. 10.)

3. Mr. Dunham passed a pre-employment physical with no significant medical findings. He was deemed to be medically qualified to perform the essential functions of the position without accommodation. (Ex. 13.)

4. Mr. Dunham filed four reports of injury during his tenure at Massport: an injury to his chest muscle in 1992; an injury to his back and leg in 1993; an injury to his foot and shoulder in 1996; and an injury to his wrist in 2002. (Exs. 20, 21, 22, 23, 24.)

5. On or about June 13, 2005, Mr. Dunham was playing golf when he had a near syncopal episode. He was seen in the emergency department at Brockton Hospital on June 14, 2005 and released home. (Ex. 25.)

6. On June 15, 2005, Mr. Dunham was seen at the emergency department of South Shore Hospital where a CT scan revealed aortic dissection from the aortic valve extending down to the pelvis and involving the subclavian artery. Cardiac consultation revealed no prior history of cardiac disease or aortic disease. "He actually denies any history of hypertension in talking to him." Mr. Dunham was emergently transferred to Brigham & Women's Hospital for surgery. (Ex. 26, Discharge Summary; Cardiac Consultation.)

7. At Brigham & Women's Hospital Mr. Dunham immediately underwent resection of his ascending aortic dissection, resection of his hemiarch dissection, composite root repair with a 25 St. Jude valve conduit and coronary re-implantation to repair his Type A aortic ascending dissection and severe aortic regurgitation. The surgery was performed by Frederick Chen, M.D., a cardiovascular surgeon. (Ex. 29, Operative Report; Board of Registration in Medicine website.)

8. The pathologic diagnosis of the ascending aorta and aortic valve was "Aorta with ACUTE DISSECTION and underlying moderate-to-severe cystic medial degeneration. No acute aortitis seen. Aortic valve with myxomatous degeneration." (Ex. 29.)

9. Mr. Dunham was discharged home in stable condition on June 23, 2005. (Ex. 30, Discharge Summary.)

10. Mr. Dunham filed an application for either ordinary or accidental disability

retirement benefits on November 1, 2005 citing a "cardiac" disability under the heart law. (Ex. 18, pp. 2, 5.)

11. Anthony Marks, M.D., who is board-certified in interventional cardiology, filed a statement in support of the application answering all certificate questions in the affirmative. Dr. Marks noted that he follows Mr. Dunham for cardiac issues. He opined: "While his prognosis from this overall is good, the surgery is of such extent and magnitude involving such a major area of his coronary and vascular circulation that any significant or strenuous activity should not be permitted. His prognosis for survival is excellent, but strenuous work physically is not allowed." (Ex. 19.)

12. With respect to causation Dr. Marks opined, "It is my understanding … that the legal definition of causal relationship for any heart disorder occurring during the time of employment is assumed to be job related. That in fact is a legal issue which I will leave to you." (Ex 19.)

13. Mr. Dunham was evaluated by a regional medical panel on May 31, 2006 composed of Madhusadan Thakur, M.D., George Philippides, M.D., and Eric Awtry, M.D. Dr. Thakur has a subspecialty in cardiovascular diseases. Dr. Philippides is board-certified in internal medicine with a subspecialty in cardiovascular diseases. Dr. Awtry is board-certified in internal medicine with a sub-specialty in cardiovascular diseases. (Ex. 8; Board of Registration in Medicine website.)

14. The panel answered unanimously in the affirmative to disability and permanence, and in the negative with respect to causation. (Ex. 8.)

15. The panel reviewed a job description and medical records, took a history and performed a physical examination. The panel diagnosed status post aortic dissection, status post valve replacement and surgical repair of aortic aneurysm with hemi-arch dissection resection. (Ex. 8.)

16. With respect to disability, the panel opined, "The Panel carefully considered the strenuous activities of a firefighter and the patient's history of spontaneous aortic dissection and came to the unanimous conclusion the he could no longer continue to perform the essential duties of his job." (Ex. 8.)

17. With respect to permanence, the panel opined, "Given the chronic and progressive nature of aortic disease and the increased risk for having a recurrent event, the Panel felt the said incapacity was likely to be permanent and answered yes to Question Two." (Ex. 8.)

18. With respect to causation the panel opined:
The Panel carefully considered the specific disabling event, namely
that of aortic disease and aortic dissection. The Panel noted that the
patient had no history of hypertension or atherosclerotic disease, both
of which are conditions that can be made worse by the stress of the
job as a firefighter and can also cause or accelerate the development
of aortic dissection and aortic disease. The vast majority of thoracic
aneurysms are caused by hypertension or atherosclerosis in older
patients but in younger patients the problem is almost always due to
some kind of connective tissue disorders such as Ehlers Danlos
Syndrome or Marfan Syndrome or some other genetic disorder which
leads to cystic medial degeneration. This appears to be the etiology
in Mr. Dunham's case as the pathology report was very clear that there
was underlying moderate to severe cystic medial degeneration. Again,
this condition is genetic in nature and is not altered by the stress of a firefighter's job. Therefore, the Panel felt the 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 requirement (sic) is
claimed and has answered no to Question Three. (emphasis supplied.) (Ex. 8.)

19. By letter of September 18, 2006, the panel responded to a request for clarification from PERAC. The panel stated in pertinent part: "[T]he pathology report is clear. The patient had an abnormality of the central layer of his aorta, which caused it to be abnormally weak and prone to dissection. Therefore, the cause and underlying etiology of the aortic dissection suffered, which was ultimately a disabling condition, was not secondary to hypertension or any stress that may have occurred on the job. It was secondary to a congenital abnormality of the patient's aortic cystic medial degeneration, which put the patient at great risk for suffering a dissection." (Ex. 8.)

20. By letter of October 16, 2006, Frederick Y. Chen, M.D., Ph.D., the surgeon who operated on Mr. Dunham at Brigham & Women's wrote, "Mr. Robert Dunham underwent aortic dissection repair by myself on June 15, 2005. His dissection was caused in part by high blood pressure that was unknown at the time." (Ex. 7.)

21. By letter of November 15, 2006, the Board's Director of Retirement forwarded two additional questions to the panel, including whether Dr. Chen's letter of October 16, 2006 changed the panel's opinion. (Ex. 6.)

22. By letter of December 22, 2006, the panel responded "no" to the Board's question: "Is there evidence that the conditions commonly attributed to a firefighter's position and/or experienced by Mr. Dunham are causal factors in coronary heart disease of the type suffered by Mr. Dunham?" (Ex. 5.)

23. With respect to Dr. Chen's letter, the panel responded: "We respectfully disagree with Dr. Chen. By the patient's own history and the medical records before us, the patient had no history of hypertension prior to the aortic dissection presentation. Similarly, the patient did not have significant hypertension after the aortic dissection became apparent and was surgically corrected. It is clear from the patient's history and the medical records that the patient, in short, does not have hypertension. Furthermore, there was no evidence by the patient's own history or the medical record that he had ever presented with any signs or symptoms that can be attributed to aortic dissection during his time on the job. Specifically, there are no separate visits for sharp chest pain, near syncope while was pursuing his line of duty."
(Ex. 5.)

24. The panel continued: "Finally and most importantly, the pathology report of the aortic specimen that was removed by Dr. Chen the surgeon clearly showed that the patient had underlying moderate to severe cystic degeneration. As we mentioned in our initial report, this is a congenital abnormality of the connective tissue, which lines the middle of the aorta, the artery that was diseased. Therefore, the panel felt strongly that the patient's aortic dissection was caused by a congenital condition and was not caused by any stress related to his job and was not caused by hypertension. While it is true that the patient's blood pressure was transiently elevated at the time of his presentation, it is clear that the pain from aortic dissection, which was secondary to a congenital disease process, caused the hypertension and not the other way around. Namely, the patient did not have hypertension and hypertension did not cause this particular aortic dissection." (Ex. 5.)

25. At its meeting of September 26, 2007, the Board voted to approve Mr. Dunham's application for accidental disability retirement benefits and transmitted its approval to PERAC. (Exs. 2, 3.)

26. By letter of December 7, 2007, PERAC remanded the case to the Board as based upon unlawful procedure in the absence of positive certification by the medical panel. (Ex. 1.)


The application of Robert Dunham for accidental disability retirement benefits is denied.

The application is denied because there is sufficient competent evidence in the record to rebut the presumption raised under G. L. c. 32, s. 94, and because the Petitioner has failed to demonstrate a causal nexus between his disabling aortic dissection and an injury sustained or hazard undergone while in the performance of his duties as required under G. L. c. 32, s. 7(1).

G. L. c. 32, s. 7(1) states in pertinent part:

[A]ny condition of impairment of health caused by hypertension
or heart disease resulting in total or partial disability or death
to a uniformed member of a paid fire department … or to any
permanent crash crewman, crash boatman, fire controlman, or
assistant fire controlman employed at the … Logan International
Airport, shall, if he successfully passed a physical examination on entry into such service … which examination failed to reveal any evidence of
such condition, be presumed to have been suffered in the line
of duty, unless the contrary be shown by competent evidence.

. The Petitioner did pass a pre-employment physical examination that did not reveal evidence that he might suffer an aortic dissection.
Assuming that the presumption is raised here, there is competent evidence in the record to rebut the presumption. The panel informs us that aortic dissection in younger patients is almost always caused by a connective tissue disorder that leads to cystic medial degeneration, an abnormality of the connective tissue that lines the middle of the aorta. The pathology report generated after the Petitioner's surgery clearly demonstrated the presence of cystic medial degeneration in the aorta, the diseased artery that dissected. The panel noted that cystic medial degeneration is genetic in nature and is not altered by the stress of a firefighter's job.

The only opinion in the record in disagreement with the panel is a letter from the operating surgeon who opined that the Petitioner's aortic dissection was "caused in part by high blood pressure that was unknown at the time." He cited no evidence to support his opinion.

The panel concluded that because there is no evidence in the record that the Petitioner ever suffered from hypertension, and by the Petitioner's own admission during his cardiac consultation at South Shore Hospital he never suffered from hypertension, that hypertension was not the cause of the Petitioner's aortic dissection.

I conclude that the panel has successfully rebutted the presumption with competent evidence.

Where the presumption is successfully rebutted by competent evidence, the burden shifts to the Petitioner to demonstrate that his disabling aortic dissection is the reasonable and proximate result of an injury sustained or hazard undergone while in the performance of his duties under G. L. c. 32, s. 7(1).

In order to meet his burden the Petitioner must prove one of two hypotheses: that his disability was caused by a single or series of work-related events, or that his employment exposed him to an "identifiable condition … that is not common and necessary to all or a great many occupations" that resulted in disability through gradual deterioration. Blanchette v. CRAB, 20 Mass. App. Ct. 479, 481 N.E.2d 216 (1985). Aggravation of a pre-existing condition to the point of disability satisfies the natural nad proximate requirement. Baruffaldi v. CRAB, 337 Mass. 495 (1958).

The Petitioner has failed to prove either hypothesis.

The Petitioner's aortic dissection had a sudden onset while the Petitioner was on the golf course. He was therefore not in the performance of his duties when his disabling injury occurred. Furthermore, the Petitioner does not point to any single or series of work-related events that might have caused the injury. The notices of injury that he filed between 1992 and 2002 are apparently unrelated to aortic dissection. The statement of applicant's physician filed with the application offers no opinion with respect to causation.

With respect to the second hypothesis in Blanchette, the Petitioner does not claim, and offers no medical opinion in support of the presence of an identifiable condition of employment that might have caused his aortic dissection. The Petitioner has not met his burden of proof under Blanchette.

The panel did not employ an erroneous standard when it answered in the negative with respect to causation, and CRAB is therefore bound by the panel's negative response. Malden Retirement Board v. CRAB, 1 Mass. App. Ct. 420, 298 N.E.2d 902 (1973).

This application for accidental disability retirement benefits is denied.



Maria A. Imparato
Administrative Magistrate

DATED: 9/25/09


Exhibit 1 Remand letter of PERAC to Board and Petitioner's letter of appeal
2 Disability Transmittal to PERAC, 11/8/07
3 Vote of Board to award, 10/17/07
4 Board findings of fact
5 Medical panel clarification, 1/9/07
6 Board request for clarification, 11/15/06
7 Letter of Frederick chen, M.D., Ph.D., 10/16/06
8 Medical panel certificate, 9//27/06
9 Employer's statement, 5/5/06
10 Petitioner's job description
11 Petitioner's employment application
12 Attendance calendars, 2005 and 2006
13 Pre-employment physical, 3/12/1992
14 Worker's Compensation manager to Director of Retirement, 11/15/05
15 Employer to Petitioner re: FMLA, 7/29/05
16 Employer to Petitioner, 7/8/05
17 Employer to Petitioner, 6/16/05
18 Application for disability retirement, 11/1/05
19 Physician's statement, 10/05
20 Injury report, wrist, 4/25/02
21 Injury report, shoulder, 8/6/1996
22 BLS documentation, shoulder injury, 8/6/1996
23 Injury report, back and leg, 7/31/1993
24 Injury report, pulled chest muscle, 5/26/1992
25 Medical records, Brockton Hospital
26 Medical records, South Shore Hospital
27 Medical records, Martin Iser, M.D.
28 Medical records, Anthony Marks
29 Medical records, Brigham & Women's
30 Medical records, Brigham & Women's
31 Joint request for submission without a hearing, 5/12/08
"A" for identification Respondent's pre-hearing memorandum

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