Opinion
No. 11–P–1802.
2013-01-30
W. Brian DONOVAN v. CONTRIBUTORY RETIREMENT APPEAL BOARD & another.
By the Court (GRASSO, MEADE & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On September 29, 2006, an administrative magistrate of the Division of Administrative Law Appeals issued an initial decision denying the application of W. Brian Donovan for accidental disability retirement benefits, which was subsequently affirmed by the Contributory Retirement Appeals Board (CRAB). A judge of the Superior Court concluded that CRAB had committed an error of law: “Nothing in the statute or the case law supports the administrative magistrate's and CRAB's conclusion that injuries sustained while engaging in common movements, such as turning one's neck, cannot be the basis of accidental disability retirement benefits sought [when the employee alleges his disability stemmed from specific events].... Glaringly absent from the decisions of CRAB and the administrative magistrate are findings of fact relative to the nexus, if any, between Donovan's degenerative spondylosis, the two incidents at work, other injuries perhaps sustained by Donovan outside of work, and his disability. Thus, CRAB has failed to evaluate Donovan's causation theory ..., an evaluation necessary to its decision.” The judge remanded the case to CRAB. Over eleven months later, the administrative magistrate issued a new decision reaching the same conclusion as before. She retained her previous findings of fact but added additional ones, at least one of which, as will be described below, conflicts with one of her previous findings. Ultimately, she found in essence that Donovan had not met his burden of establishing that his disability was caused by one or more specific incidents at work. CRAB adopted the new decision. Donovan sought judicial review in the Superior Court. A second judge of that court affirmed the decision. Donovan now appeals.
Donovan commenced employment with the Massachusetts Turnpike Authority in June of 1993, first as a part-time toll collector and then, in 1994, as a full-time maintenance worker. It is uncontested that on August 8, 1994, Donovan suffered an injury at work: while he was lifting a heavy trash barrel, he felt a pop in his neck. He had no previous neck injuries, but he experienced constant pain and difficulty moving his right arm following this incident. He was able to return to work in October, 1994.
In 1996, his symptoms worsened. According to an October, 1996, letter from his treating physician, Dr. Munir Abbasy, Donovan had “a resolution of his symptoms in about two months” following the 1994 injury. Dr. Abbasy performed discectomy surgery in October, 1996. Dr. Abbasy's surgical notes from that month state that Donovan suffered “persistent neck and right arm pain” from the time of his 1994 accident. There is some dispute about the matter, but the letter from Dr. Abbasy indicated that “after playing golf [Donovan] developed recurrence of neck and right arm pain.” Since it is not material to our decision, we may assume without deciding that that was in fact the case.
After a month on workers' compensation, Donovan returned to work as a senior maintenance clerk, a position that was less physically demanding. He remained under medical care because he continued to experience pain in his neck, right shoulder, and arm, as well as numbness in his hand. Following an October, 2000, incident at work in which Donovan jerked his neck in a startled reaction to a coworker's loud banging on his office window, he experienced increased neck and arm pain, significant restriction in the range of motion of his right shoulder, and pain, tingling, and loss of strength in his hand. In March, 2002, he underwent a second surgery to fuse vertebrae and place a plate in his neck.
The administrative magistrate noted that Donovan was diagnosed with cancer of the neck approximately three months after his second surgery and underwent treatment, including radiation therapy during 2002 and 2003. There were no findings suggesting the cancer or this treatment contributed to his disability.
Even after this surgery, Donovan continued to experience radiating pain in his upper extremities that his surgeon described as “severely debilitating.” He was awarded workers' compensation benefits and did not return to work. He filed an application for accidental disability retirement on July 6, 2004. His application included disability certifications from his primary care physician and from a neurosurgeon who examined Donovan several times after Dr. Abbasy's death. Both concluded that Donovan was permanently disabled as a result of job-related injury.
A regional medical panel of independent physicians was convened to evaluate Donovan's case pursuant to G.L. c. 32, § 6(3). The panel consisted of two neurologists and an orthopedic surgeon, and Donovan's medical records were provided for the panel's review. Some of these records included accounts of magnetic resonance imaging (MRI) scans that indicated spondylitic (degenerative) changes to his spine. In addition to investigating the medical records, the panel conducted a physical examination of Donovan and obtained another MRI. Noting the impact of the surgeries on his neck, the panel diagnosed Donovan as suffering from posttraumatic cervical sprain from two incidents at work, paresthesia in the right upper extremity, increasing hand and muscle weakness in areas innervated by the ulnar nerve, and weak handgrip. The panel unanimously certified that Donovan is permanently disabled and that, in the language of the statute, his incapacity is such as might be the natural and proximate result of the injuries he sustained at work. They went on to opine specifically that his disability is “directly related to the injuries suffered at work.”
Also included in the record before the administrative magistrate was a May 31, 2006, deposition in a separate workers' compensation proceeding by an orthopedic surgeon, Dr. Alan Bullock, who performed an impartial medical examination of Donovan pursuant to G.L. c. 152, § 11A, and four updated physicians' narratives.
The administrative magistrate determined that Donovan had not met his burden of demonstrating that his disability stems from a work-related event or series of events rather than nonwork-related events or a preexisting condition, notwithstanding the unanimous opinions of all the medical experts in the record to the contrary. She concluded that he had fully recovered from his 1994 work-related injury within approximately two months, and that his further treatment in 1996, when he experienced a recurrence of his right arm pain, was unrelated to his 1994 injury. The administrative magistrate simultaneously found, as she had in her original ruling, that after the accident Donovan experienced “constant pain and difficulty moving his right arm ... until 1996 when his symptoms increased.” This directly contradicts her new finding that his symptoms resolved within approximately two months of the 1994 incident. Given our disposition of the case, however, we need not resolve this internal conflict in the administrative magistrate's decision.
Similarly, we need not address the omission from her original findings of the nonwork-related incidents relied upon in her second opinion.
The administrative magistrate also found, on the basis of the statement about golf in Dr. Abbasy's letter, that Donovan's symptoms in 1996 were the product of a new, nonwork-related injury. In addition, she pointed to an entry in Dr. Abbasy's notes, which were also reviewed by the medical panel, recounting an incident in February, 1997, in which Donovan stretched his arm reaching while shopping. A note speculated that this had caused a stretch injury to his cervical muscles and possibly to the nerve roots. In any event, the administrative magistrate stated that Donovan “reinjured himself” in this incident.
Finally, despite the unanimous conclusion of all the medical experts, the administrative magistrate read the reports of a 1994 and a 2001 MRI stating they showed only spondylitic changes to mean that there was no residual injury from the 1994 incident and no injury at all from the incident in 2000, but only degenerative changes to Donovan's cervical spine. On the basis of these findings, she attributed Donovan's disability to “non-work related incidents including the injuries in 1996 and 1997, and his multiple surgeries” and ruled he was ineligible for accidental disability retirement benefits. CRAB adopted the administrative magistrate's decision, and on appeal pursuant to G.L. c. 30A, the Superior Court judge affirmed.
Discussion. An employee with a permanent and total disability is entitled to accidental disability retirement benefits if he or she can prove by a preponderance of the evidence that it was “the natural and proximate result of a personal injury sustained as a result of the performance of his duties.” Blanchette v. Contributory Retirement Appeal Bd., 20 Mass.App.Ct. 479, 483 (1985). On appeal, CRAB's decision must stand unless it is unsupported by substantial evidence or based upon an error of law. G.L. c. 30A, § 14(7). We give due weight to the agency's experience and specialized knowledge, as well to the discretionary authority conferred upon it. G.L. c. 30A, § 14(7). “Substantial evidence” is such that “ ‘a reasonable mind might accept as adequate to support a conclusion’ after taking into consideration opposing evidence in the record.” Lisbon v. Contributory Retirement Appeal Bd., 41 Mass.App.Ct. 246, 257 (1996), quoting from G.L. c. 30A, § 1(6).
The magistrate's conclusion that Donovan's condition was not caused by his work-related injury is not supported by substantial evidence.
When there is uncontradicted medical testimony concerning medical issues beyond the common knowledge of a finder of fact, that testimony may not be rejected without a basis in the record for doing so. See Robinson v. Contributory Retirement Appeals Bd., 20 Mass.App.Ct. 634, 639 (1985). In addition, the fact finder must make explicit findings on those issues and explain her reasons for rejecting the expert testimony. Id. at 640.
CRAB's argument that Donovan has conflated the causation standards for disability retirement benefits and workers' compensation is irrelevant in view of our holding that there is not substantial evidence, under the standard applicable to disability retirement determinations, supporting the administrative magistrate's conclusion that Donovan had not met his burden.
Donovan offered certifications of two of his physicians, signed under penalties of perjury. One physician concluded, “Mr. Donovan is permanently disabled because of his cervical injury that goes back to 1994,” and the other stated, “[I]t is more likely that the patient's disability was caused by a job-related injury than a non-work-related condition or event, and this is substantiated in the medical records.” An independent medical panel was convened pursuant to G.L. c. 32, § 6(3), and its report included its unanimous opinion that Donovan's disability “is directly related to the injuries suffered at work.” The record contains no contrary medical opinion as to the causal connection between Donovan's work injuries and his disability.
The administrative magistrate's conclusion that the resolution of Donovan's pain meant that his injury was gone, and that his symptoms were attributable to some new injury unrelated to his work rather than to a work-related injury, is thus not supported by any medical evidence. Indeed, the opposite is true. First, every doctor who offered an opinion on the evidence and knew about the resolution of symptoms described in the Abbasy letter concluded that Donovan's injury was caused by work. The independent panel's certification is supported by the certifications of Dr. Maguire and Dr. Wepsic, who were aware of the 1996 recurrence but nonetheless concluded that Donovan's disability was attributable to a job-related injury. Even Dr. Abbasy's surgical notes do not support the magistrate's characterization: less than two weeks after the letter, he wrote “[Donovan's] problem began on 8/4/94 when [he was] involved in a work related injury. Since then he has complained of persistent neck and right arm pain.” The only supportable inference from the medical evidence is that the resolution of symptoms did not mean that the injury had resolved. Second, every doctor who had before him the Abbasy letter indicating that there was a recurrence of symptoms after playing golf—including the members of the unanimous independent panel—concluded nonetheless that Donovan's symptoms were caused by his work injuries. The only supportable inference from this is that the worsened symptoms Donovan suffered following ordinary life activities—whether playing golf or reaching for a shelf while shopping—were not new injuries but aggravations of the 1994 injury.
The deposition testimony of Dr. Bullock from the workers' compensation case does not support the administrative magistrate's conclusion. Dr. Bullock testified to a reasonable medical certainty that the cause of the disc damage, symptoms, and necessity for surgery in 1996 was Donovan's 1994 work injury, and that the 2000 injury was not a new injury but an aggravation of his previous condition that led to the need for further surgery.
Likewise, the administrative magistrate's reading of the scans showing only degenerative changes to demonstrate that there was no longer any injury but merely degeneration is wholly unsupported by any medical evidence.
Every doctor who gave an opinion regarding causation was aware of the MRIs, yet not one concluded that they demonstrated that Donovan's current condition was not caused by work-related injuries.
The existence of a degenerative condition does not preclude a disability award when a work-related injury aggravated the preexisting condition. See Fairbairn v. Contributory Retirement Appeal Bd., 54 Mass.App.Ct. 353, 361 (2002). Dr. Wepsic explicitly considered and rejected spondylitic changes as the cause of Donovan's disability, and Dr. Bullock indicated that work injury was the “predominant” cause and that it “brought out his symptoms of his preexisting disease.”
To the contrary, the doctors, including all three members of the independent medical panel, unanimously concluded that his incapacity was the natural and proximate result of those injuries.
On or about October 20, 2000, a fellow employee banged on the window of Donovan's office, startling him and causing him to jump and turn his head quickly. He felt a sharp pain in his back, neck, and right arm. Although CRAB contends this injury was not work-related, it supports this proposition with unpublished decisions affirming CRAB's denial of benefits for injuries incurred in undertaking a common activity. See Sanella v. Contributory Retirement Appeal Bd., 40 Mass.App.Ct. 1123 (1996); Brown v. Contributory Retirement Appeal Bd., 40 Mass.App.Ct. 1127 (1996). However, a disability claimant need not establish that an activity was uncommon when, as it is in this matter, his “injury is attributable to a specific work-related event ... or a series of such events, rather than to gradual wear and tear.” Plymouth County Retirement Bd. v. Contributory Retirement Appeal Bd., 60 Mass.App.Ct. 114, 118 n. 3 (2003), quoting from Kelly's Case, 394 Mass. 684, 688 (1985). This was pointed out in the Superior Court judge's decision that remanded CRAB's initial denial of benefits in this matter.
The medical significance for the question of causation of the MRI report and of the verbiage in Dr. Abassy's letter and notes is beyond the common knowledge and experience of the lay administrative magistrate. As there was no medical evidence supporting the administrative magistrate's reading of those documents, there was no adequate basis in the record for her decision to reject the doctors' uniform conclusion about their significance. Cf. Narducci v. Contributory Retirement Appeal Bd., 68 Mass.App.Ct. 127, 137 (2007).
Her conclusion on the question of causation thus was not supported by substantial evidence in the record.
We note that the regulations appear to allow the board to seek “additional information or further clarification” from the independent panel. 840 Code Mass. Regs. § 10.11(2) (2008). It did not do so in this case.
To the extent there is evidence tending to show that Donovan's current condition is partially the result of complications from his surgeries, it is irrelevant to the question of ultimate causation. Once an injury is established as being work-related, disability arising from complications incident to medical treatment of the injury is also work-related. Retirement Bd. of Brookline v. Contributory Retirement Appeal Bd., 33 Mass.App.Ct. 478, 481 (1992). Because, as discussed supra, there was no basis for the administrative magistrate to conclude that the original cause of Donovan's condition was not work-related, she could not properly have relied on the narrative from Dr. Eichler suggesting that his condition could be the result of nerve root injury suffered in his second surgery to support her conclusion that Donovan's disability was not the result of an injury sustained in the course of his duties.
As there was no substantial evidence in the record to support the administrative magistrate's conclusion that Donovan's current condition was not caused by work-related injury, the judgment below is reversed. A new judgment shall enter remanding the case to CRAB for entry of a decision awarding accidental disability retirement benefits to Donovan.
So ordered.