Opinion
19-P-520
01-30-2020
Mark TORBIN v. TOWN OF SAUGUS & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
At issue is whether summary judgment was properly granted in favor of the defendants. More specifically, the question is whether the plaintiff, a retired police officer, raised a triable issue of fact that his two work absences in 2015-2016 were "because of injury sustained in the performance of his duty without fault of his own." G. L. c. 41, § 111F. Because the summary judgment record did not raise a triable issue of fact, we affirm the judgment and the order denying the plaintiff's motion for reconsideration.
Summary judgment "is appropriate where the moving party ... show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law based on the undisputed facts" (quotations and citations omitted). Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680 (2016). The party seeking summary judgment "may satisfy its burden of demonstrating the absence of triable issues ... by showing that the party opposing the motion has no reasonable expectation of proving an essential element of its case." Boazova v. Safety Ins. Co., 462 Mass. 346, 350 (2012), citing Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). "If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact in order to defeat a motion for summary judgment." Pederson v. Time, Inc., 404 Mass. 14, 17 (1989).
To begin with, we note that the plaintiff did not file a response to the defendants' Superior Court Rule 9A statement of undisputed facts accompanying their motion for summary judgment. Accordingly, the undisputed facts set forth in the defendants' statement, as the rule explicitly provides, are "deemed to have been admitted," and could be so taken by the judge. See Dziamba v. Warner & Stackpole, LLP, 56 Mass. App. Ct. 397, 400–401 (2002). Those facts, briefly, were as follows.
The plaintiff was a police officer in Saugus (town) from 1992 until 2016, when he retired having obtained the rank of lieutenant. In 2009 and again in 2014, the plaintiff was absent from work because of heart catheterization procedures related to underlying heart disease. On each of those occasions, the police department (department) categorized the absences as service-connected injury. Before the 2009 absence, the police chief told the plaintiff "not to worry about it" and that it was the department's practice to treat all heart issues as service-connected injury. In connection with the plaintiff's 2014 absence, the police chief likewise assured the plaintiff that he "would be all set as far as the department was concerned."
Shortly before his retirement, the plaintiff had two periods of absence from work after experiencing chest pain. The first absence was from October 12, 2015, to November 9, 2015; the second was from December 21, 2015, to his retirement in April 2016. After following the determination of an outside consulting firm, the defendants classified these two absences as sick leave, rather than as service-connected injury. As noted above, the plaintiff retired in April 2016. Upon retirement, he received a disability pension because of a heart condition. As a result of the classification of his two final absences from work, the plaintiff exhausted his sick leave and did not receive reimbursement he otherwise would have when he retired had the two absences been classified as service-related injury.
When an officer is absent from work because of illness or injury, the police chief makes an initial determination as to whether the illness or injury is work related. The matter is then forwarded to the town's human resources department, which enlists a third-party administrator, Cook and Company, to make a final determination. If the third-party administrator designates the injury or illness as work related, then the town will categorize the officer's absence as a service-related injury. If not, the town designates the officer's absence as sick leave.
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The plaintiff's opposition to the motion for summary judgment was accompanied by a letter from an expert, Dr. Stephen Galizio. Dr. Galizio began treating the plaintiff in March 2006, and "more importantly" had also reviewed medical records from other physicians predating his involvement in the plaintiff's care. Dr. Galizio noted that the plaintiff had been out of work in 2006, 2009, and 2014 for cardiac catheterizations. "Each of these procedures w[as] done for symptoms or clinical concern for angina. The condition for which these hospitalizations were necessary continues to the present time and is being treated. Each catheterization has shown progression of underlying coronary artery disease despite optimal medical treatment." Dr. Galizio further stated:
"It is my opinion, based upon a reasonable degree of medical certainty that the episodes of chest pain that [the plaintiff] suffered from on October 11, 2015 and then again on December 21, 2015, both of which caused his lost time from duty, were and are ca[us]ally related to the previously known coronary artery disease. There is a direct medical nexus between his disease process in 2006, 2009, and 2014 and the symptoms suffered by him in 2015 as referenced above."
Dr. Galizio did not explicitly state that the plaintiff's chest pains in 2015 were caused by his work as a police officer or that they were "accelerated by a strain or exertion attributable to his work" or that his work aggravated a preexisting condition. Brzozowski's Case, 328 Mass. 113, 116 (1951). See Blair v. Selectmen of Brookline, 24 Mass. App. Ct. 261, 264 (1987) ("If a condition or incident of work aggravates a preexisting health problem, the employee has suffered a personal injury, and may recover from the employer for his entire disability" [quotation and citation omitted] ). The question, therefore, is whether viewed in the light most favorable to the plaintiff, Dr. Galizio's letter supports a reasonable inference to that effect. See Bulwer v. Mount Auburn Hosp., 473 Mass. at 680.
We do not think it does. On its face, the opinion causally ties the 2015 cardiac episodes to the plaintiff's preexisting coronary artery disease, not to his work as a police officer. The fact that the December 2015 chest pains occurred while the plaintiff was at work is not enough to permit a juror to conclude that they occurred because of the plaintiff's work without an expert opinion to that effect. Medical causation is generally a matter requiring expert opinion, Reckis v. Johnson & Johnson, 471 Mass. 272, 292 (2015), and this is not the type of situation that falls within the rare exceptions to that rule, see Pitts v. Wingate at Brighton, Inc., 82 Mass. App. Ct. 285, 289-290 (2012). Without such an opinion, summary judgment was appropriately granted in the defendants' favor.
Judgment affirmed.
Order denying motion for reconsideration affirmed.