Opinion
No. 15–P–1271.
06-30-2016
WORCESTER RETIREMENT BOARD v. CONTRIBUTORY RETIREMENT APPEAL BOARD & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal by the Worcester Retirement Board (WRB) in which WRB requests that we reverse a Superior Court judgment affirming the decision of the Contributory Retirement Appeal Board (CRAB), and reinstate a decision of the Division of Administrative Law Appeals (DALA) that upheld WRB's denial of accidental disability retirement benefits to former employee Michelle Sargent. For substantially the same reasons contained in the well-reasoned memorandum of decision of the Superior Court judge, we hold that CRAB's decision was supported by substantial evidence, and affirm.
Background. The undisputed material facts are as follows. Michelle Sargent worked as a junior custodian for the Worcester Public Library from November 19, 2001, to June 30, 2003. Sargent's job responsibilities included maintenance and upkeep of the buildings and grounds of the main library and branches. Prior to being hired, Sargent had two surgeries for herniated cervical discs, the first in 1990. On August 2, 2001, Sargent underwent a discectomy and fusion for a herniated cervical disc, after which her neurosurgeon noted that she was “free of pain” and could resume “normal usual activities without any reservations.” On November 8, 2001, Sargent's neurosurgeon noted that she had some stiffness and decreased range of motion and muscle spasms when turning her head to the right side, and he arranged for physical therapy. After applying for the job of junior custodian on November 12, 2001, Sargent had a preemployment physical and was found “fit for the position sought.”
As the CRAB decision adopted the second DALA administrative magistrate's factual findings with a minor clarification not relevant here, we draw these facts from the June 28, 2013, DALA decision.
Sargent worked without incident until April 22, 2002, when she went to pick up a bag of books and felt a sharp pain down her left shoulder into her lower back. She filed a notice of injury. On September 25, 2002, she was moving a cement trash receptacle, weighing seventy-eight pounds when empty, when she strained her neck and left shoulder. She filed another notice of injury. In February, 2003, Sargent developed pain in her neck and left shoulder as a result of lifting one of the cement trash receptacles. She was medically examined and told she had a cervical strain, and was placed on light duty for a few days, after which she returned to full duty. On April 23, 2003, Sargent was lifting boxes of books out of a truck and onto a loading dock, when she felt pain radiating down her shoulder and arm, and her hand went numb. She was medically examined and again advised to go on light duty work. She filed a notice of injury. The next day, she could not move, and the left side of her neck and body were numb. She returned to work on light duty. A May 30, 2003, magnetic resonance imaging (MRI) scan revealed multi-level degenerative disc disease, mild cord compression which was unchanged from an exam dated January 14, 2001, and no evidence of new neural impingement. On June 30, 2003, her doctor advised her to stop working and referred her to a neurosurgeon. She did not return to work thereafter.
Sargent was awarded workers' compensation benefits. Neurosurgeon James Wepsic performed an independent medical examination of Sargent as part of the eligibility process. He opined that her disability was causally related to the April 23, 2003, incident at work. Sargent was examined over the next several years by a number of physicians, all of whom ultimately determined that Sargent was unable to return to work. Dr. Wepsic wrote in his 2005 notes that Sargent was “symptomatically unable to return to work” that “it would not be possible for her to carry out [the junior custodian] job at this time,” and eventually that it was “unrealistic to expect that Ms. Sargent will return to work in her former capacity.” Patrick Connolly, a spinal orthopedic surgeon, wrote in August, 2005: “[S]he is not able to go back to her job. Her current disability status is total.”
On or about March 31, 2006, the head librarian filed an involuntary application for accidental disability retirement benefits on behalf of Sargent, based on the injuries Sargent sustained to her neck in February and April, 2003. Sargent was evaluated at the University of Massachusetts Memorial Medical Center, and the report concluded that she was “incapable of returning to work as a library custodian for the City of Worcester at this time” and that “it [was] unlikely that Ms. Sargent would be able to be physically rehabilitated to return to her previous job .” On December 18, 2008, the Department of Industrial Accidents issued an order of payment pursuant to G.L. c. 152, § 34A. On April 29, 2009, another orthopedic and spine surgeon, who performed an impartial medical examination for workers' compensation purposes, concluded that Sargent was “permanently and totally disabled from any and all gainful employment,” adding that “the work injury [was] a major causal factor in her ongoing total disability but not necessarily the only major causal factor or even the predominant causal factor which is likely her pre-existing degenerative change to the cervical spine and her vulnerability.”
Sargent appeared before the WRB, which voted on October 11, 2007, to deny her application for accidental disability retirement benefits because of “[f]ailure to establish causal connection between injury and present claim of disability.” Eventually a regional medical panel of orthopedists was convened, and certified that Sargent was permanently disabled and that her disability might be the natural and proximate result of the work-related injuries. After requesting several clarifications from the medical panel, the WRB again denied Sargent's application for accidental disability retirement benefits on May 17, 2012, concluding that “[u]pon review of all the medical and non-medical evidence ... the standards for disability and causation have not been satisfied.” Sargent again appealed, and the WRB's denial was affirmed after hearing by a second DALA administrative magistrate on June 28, 2013. A further appeal was taken to CRAB, which adopted the second DALA administrative magistrate's factual findings, but reversed the denial, concluding that Sargent proved by a preponderance of evidence that her disability was proximately caused by the work injury. A Superior Court judgment, dated June 11, 2015, upheld CRAB's decision, dated June 5, 2014.
The first WRB denial was issued without certification of a regional medical panel as required by G.L. c. 32, § 6. Sargent appealed, and the first DALA hearing was held August 26, 2010. The first DALA administrative magistrate remanded the case to WRB to convene a regional medical panel of orthopedic surgeons to examine Sargent. Instead, a panel consisting of two neurologists and one psychiatrist examined Sargent, certifying that she was permanently disabled, and that her disability might be the natural and proximate result of the work-related injury. That certification was voided as contrary to the DALA administrative magistrate's order and a new panel consisting of three orthopedists was convened in 2011. The June 28, 2013, DALA decision reversed by CRAB, which is at issue in this appeal, reviewed WRB's denial following this second regional medical panel.
Discussion. a. Standard of review. This court may not set aside a CRAB decision that is supported by substantial evidence and not legally erroneous. Murphy v. Contributory Retirement Appeal Bd., 463 Mass. 333, 344 (2012). Our review of a CRAB decision under the substantial evidence standard of G.L. c. 30A, § 14(7)(e), like that of the Superior Court, is narrow. See Retirement Bd. of Salem v. Contributory Retirement Appeal Bd., 453 Mass. 286, 288–289 (2009). We give “due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.” Flint v. Commissioner of Pub. Welfare, 412 Mass. 416, 420 (1992), quoting from G.L. c. 30A, § 14(7). Substantial evidence means only “reasonable evidence,” which is to say “such evidence as a reasonable mind might accept as adequate to support a conclusion.” Lisbon v. Contributory Retirement Appeal Bd., 41 Mass.App.Ct. 246, 257 (1996), quoting from G.L. c. 30A, § 1(6). The decision of an agency resulting from a choice between “two fairly conflicting views” cannot be set aside if it is supported by substantial evidence, “even though the court would justifiably have made a different choice had the matter been before it de novo.” Southern Worcester County Regional Vocational Sch. Dist. v. Labor Relations Commn., 386 Mass. 414, 420 (1982), quoting from Labor Relations Commn. v. University Hosp., Inc., 359 Mass. 516, 521 (1971).
Because WRB argues, as it did below, that CRAB gave insufficient deference to the DALA administrative magistrate's conclusions, we note briefly that CRAB is not bound by DALA's ultimate recommendation. See Murphy, supra at 336. Although DALA's subsidiary findings are entitled to “some deference,” Vinal v. Contributory Retirement Appeal Bd., 13 Mass.App.Ct. 85, 101 (1982), findings based on credibility determinations are entitled to “substantial deference.” Morris v. Board of Registration in Med ., 405 Mass. 103, 110–111, cert. denied, 493 U.S. 977 (1989), quoting from Vinal, supra.
b. Proximate cause of Sargent's disability. To qualify for accidental disability retirement benefits under G.L. c. 32, § 7(1), Sargent had to prove by a preponderance of the evidence that: (1) she was unable to perform the essential duties of her job; (2) by reason of a personal injury sustained in the performance of her job; and (3) such inability was likely to be permanent. See Fairbairn v. Contributory Retirement Appeal Bd., 54 Mass.App.Ct. 353, 354, 357 (2002). In this case, only the causation element was disputed. Unlike WRB and DALA, CRAB concluded that the combination of Sargent's two on-the-job injuries “proximately caused her neck and arm symptoms, which by June 30, 2003 disabled her from performing her custodial job.” CRAB found that these injuries did more than merely contribute to the progression of Sargent's disc disease, but in fact were a “substantial legal factor” and a “natural and proximate cause” of her disability. See generally Adams v. Contributory Retirement Appeal Bd., 414 Mass. 360, 365–366, 367 & n. 5 (1993) (work injury resulting from common movements or “wear and tear” insufficient to establish entitlement under G.L. c. 32, § 7 [1] ); Campbell v. Contributory Retirement Appeal Bd., 17 Mass.App.Ct. 1018, 1018 (1984) (work injury must be “natural and proximate cause” of incapacity). CRAB further concluded that Sargent's preexisting degenerative cervical disc disease led her to be more vulnerable to neck injury, but her disease was aggravated by the injuries she sustained at work. See, e.g., Baruffaldi v. Contributory Retirement Appeal Bd., 337 Mass. 495, 500–501 (1958) (employee may recover for disabling injury incurred due to aggravation of preexisting injury by exertion or strain); Adams, supra at 361 n. 1 (employee may recover for disabling injury even where physical weaknesses partially caused that injury). Without the work accidents, CRAB reasoned, Sargent's disability would not have progressed to its current state.
CRAB based its conclusions on the opinions of numerous examining physicians and the second medical panel, which concluded that the work incidents proximately caused Sargent's disability. CRAB also examined Sargent's limitations prior to her employment with the library, immediately following her work accidents, and years after the work incidents. We agree with the Superior Court judge that from that evidence, one could reasonably conclude that Sargent's disability would not have progressed to its current severity if not for those work incidents.
On appeal, WRB focuses myopically on the fact that Sargent's alleged injury was not manifested by the May 30, 2003, MRI results, as compared with the preaccident, January 14, 2001, MRI. DALA's decision similarly relied on the lack of visible changes when comparing those MRI results. This argument, however, ignores medical evidence that Sargent's injury may not be detectable on an MRI. The second medical panel explained that Sargent's history and physical examination were of equal value to MRI results in evaluating an injury, and that the first work incident could have caused “mechanical derangement of [Sargent's] neck not apparent on an MRI.” The final determination regarding whether Sargent proved a causal relationship between her permanent disability and a personal injury is the province of CRAB, “based on the facts found and the underlying evidence, including both the medical and nonmedical facts .” Blanchette v. Contributory Retirement Appeal Bd., 20 Mass.App.Ct. 479, 483 (1985). Aside from the MRI results, which comprised only one piece of evidence in a case involving no fewer than five medical opinions and evaluations, there was substantial evidence to support CRAB's conclusion.
Conclusion. The Superior Court judgment affirming CRAB's decision dated June 5, 2014, is affirmed.
So ordered.