Risk of Re-Injury in Massachusetts ADR Cases

You may qualify for an accidental disability retirement (ADR) if you are physically able to perform all of your essential duties, you may still be eligible for an ADR if returning to work would constitute an unreasonable risk of substantial harm to yourself or third parties, due to a risk of re-injury.

For example, where a PERAC Medical Panel ruled against an ADR applicant, a new medical panel was convened because the first panel failed to consider the risk of re-injury. The question for the new medical panel to answer is: in light of the applicant’s history of rotator cuff rupture, and in light of his essential job duties that require him to lift adult male clients, and restrain violent adult male clients, is he able to perform the essential duties of his job without a reasonable probability of substantial harm to himself or third parties?

In another case, a police officer who sustained a knee injury was entitled a to a new medical panel  to consider and evaluate a whether there was a risk of re-injury to the officer’s knee and, due to such risk,  whether he would be a danger to others while undertaking strenuous police work.

If there is a risk of re-injury, the applicants will be entitled to an accidental disability retirements.

Police Officer Denied Disability Retirement Benefits for Slip & Fall

iceInjuries sustained while travelling to work may not be considered “in the line of duty” and, therefore, not entitle you to an accidental disability retirement. In order to qualify for an award of accidental disability retirement benefits, pursuant to G.L. c. 32 § 7(1), you must prove that you are permanently unable to perform the essential duties of your job as the proximate result of a personal injury sustained or hazard undergone “as a result of, and while in the performance of,” your duties.

In the case of Ramsey v. New Bedford Retirement Board, the Contributory Retirement Appeals Board denied a police officer retirement benefits because the Board found that the officer who slipped on ice at the police s station parking lot was not injured in the performance of his duties, as the law requires.

William Ramsey, aka Bill Ramsey, worked as a police officer for the City of New Bedford from January 1983 to January 14, 2009.

On January 13, 2009 at 11:55 p.m., Officer Ramsey was on his way into work at the New Bedford police station to report for roll call when he slipped on ice in the parking lot. He reported the incident immediately and worked his scheduled shift. The next morning he had pain in his neck, lower back and hip.

Officer Ramsey began collecting injured-on-duty benefits under G.L. c. 41 § 111F on January 14, 2009.

An orthopedic surgeon diagnosed “residuals of cervical strain and resolved low back strain.” He opined that Mr. Ramsey was not capable of returning to work because of his neck condition as a result of his fall on the ice.

On October 8, 2009, Mr. Ramsey had an independent medical evaluation which resulted in a determination that Ramsey had fully recovered and was able to return to work “at full capacity without restrictions.”

The police department ordered Mr. Ramsey back to work. Mr. Ramsey’s 111F benefits were discontinued on October 19, 2009. Mr. Ramsey started using sick leave. By agreement with the City, Mr. Ramsey’s 111F benefits were reinstated because he agreed to apply for accidental disability retirement benefits by April 25, 2010.

Mr. Ramsey filed an application for superannuation retirement benefits on April 24, 2010. He filed an application for accidental disability retirement benefits on April 25, 2010.

The Retirement Board denied Mr. Ramsey’s application for accidental disability benefits on June 30, 2010 because “your injury occurred when you were reporting for duty.”

The Retirement Board considered additional information submitted by Mr. Ramsey, and voted again to deny his application on May 3, 2011 without convening a medical panel because “incident occurred prior to the commencement of shift.”

Under the rules and regulations of the New Bedford Police Department, “A member shall report for duty properly clothed and equipped, at his regularly appointed time (15 minutes prior to the time set for roll call) and not withdraw or absent himself from duty without permission.”

The decision of the New Bedford Retirement Board to deny the application of William Ramsey for accidental disability retirement benefits without convening a medical panel was affirmed. The decision was affirmed because it was determined that Ramsey was not in the performance of his duties at the time of his injury. He was injured while he was on his way into work on January 13, 2009. He was not performing any duty of his job at the time of his injury.

In the instant case, Ramsey was injured while he was traveling from home, where he did not have an employment obligation, to the police station where he did have an employment obligation. Under the Namvar standard, he was not injured while in the performance of his duties. The outcome does not change because a police officer must respond to certain situations even when he is off-duty, or because a police officer must report for duty fifteen minutes before the time set for roll call, as Ramsey argued. He was not injured “during the actual performance of the duties that the employee has undertaken to perform on behalf of the public.” Therefore, his disability retirement application was denied.

Retirement Granted Despite Surveillance Video

lensJohn Gates was employed as a Heavy Motor Equipment Operator (HMEO) for the City of Holyoke Department of Public Works (DPW) from October 22, 2007 to May 29, 2009. He was terminated on June 21, 2010. Mr. Gates passed a pre-employment physical examination before beginning work. The essential duties of Mr. Gates’s job include snow plowing, shoveling, mowing, weed whacking, collecting refuse, filling potholes, and making berms.

On Friday, May 29, 2009, at 7 a.m., Mr. Gates began working in the sanitation department, lifting trash barrels and emptying them into a truck. By 9 a.m. he had pain in his right elbow. By 10 a.m. he could not lift the trash barrels. Mr. Gates reported this to his supervisor, who took Mr. Gates to the Work Connection at Holyoke Medical Center. Mr. Gates was diagnosed with a right forearm strain, advised o ice his forearm four times a day for 20 minutes, and to take Tylenol as needed.

On or about June 16, 2009, Mr. Gates asked for a meeting with the DPW Superintendent because there were jobs he thought he could perform, despite the injury to his right arm. The DPW office manager told Mr. Gates that if he was “not 100%,” he could not return to work. An MRI of the right elbow performed on June 25, 2009 was “consistent with mild lateral epicondylitis.”

On August 6, 2009, Investigative Concepts began surveillance of Mr. Gates. On August 31, 2009, Mr. Gates was observed using his right arm to slap a pack of cigarettes against his left hand; rotating his steering wheel with both hands; holding a garden hose in his right hand to spray his driveway; stretching a tarp using both hands; using a box cutter with his right hand; attaching a hose to a power washer using his right hand; pulling the rip cord with his right hand; spraying the tarp with his right hand; drinking a cup of coffee with his right hand; lifting and carrying a 5 gallon gas container using his right hand; carrying a slab of concrete with his right hand; using a socket wrench with his right hand; and leaning on his right elbow.

On or about September 14, 2009, Mr. Gates was called to a meeting with the DPW Superintendent in which he was accused of workers’ compensation fraud. He was asked to resign his position, promise to repay his workers’ compensation benefits and write a statement indicating who had helped him defraud the DPW. Mr. Gates did none of those things.

On January 31, 2012, Mr. Gates filed an accidental disability retirement application citing an inability to lift and empty heavy trash barrels, yard waste barrels, operate a jackhammer, shovel and jack blacktop, mow lawns, plow snow and sand streets as a result of right lateral epicondylitis secondary to lifting heavy barrels of trash for several weeks, ending on May 29, 2009.

On February 26, 2013, the Holyoke Retirement Board voted to deny Mr. Gates’s application for accidental disability retirement benefits because “The applicant has not met his burden of proving by a preponderance of the medical and non-medical evidence that he is permanently incapable of performing the essential duties of his position as a result of a personal injury sustained on May 29, 2009.” Mr. Gates filed a timely appeal.

The Board argues that the three doctor medical panel lacked “pertinent information” when it rendered its opinion because the panel was not provided with the surveillance DVDs. These recordings showed Gates using his right arm, but did not show him performing repetitive motions or repetitive lifting of heavy objects with his right arm. The panel majority has already opined that mere use of Gates’ right arm may not cause symptoms, but repetitive motions and repetitive heavy lifting will cause symptoms. The DALA Magistrate ruled that, “there is therefore no point in having the panel majority view the surveillance DVDs because they do not demonstrate repetitive motions and repetitive heavy lifting using the right arm.”

After a full evidentiary hearing, the Administrative Magistrate ruled that Gates met his burden of proof with respect to the existence of a disability, and the likelihood of its permanence. He had also met his burden of proof with respect to causation. The Division of Administrative Law Appeals ordered the Holyoke Retirement Board to award accidental disability retirement benefits to Mr. Gates.

Re-Assignment Blocks Disability Retirement

FIREFIGHTERIn Accidental Disability Retirement cases, the burden is on the applicant to prove that he is permanently unable to perform the essential functions of his or her position due to an injury sustained or a hazard undergone in the line of duty. Sometimes, an employer will attempt to make an accommodation by  transferring the disabled employee to another less strenuous position. When this happens, the question is not whether the employee is able to perform his former duties, but whether he or she is able to perform the duties of the new position.

For example, in the case of Paul Kaitz v. State Board of Retirement, which was recently decided, an Administrative Magistrate of the Massachusetts Division of Administrative Law Appeals recently denied a firefighter accidental disability retirement benefits because he was able to perform the essential functions of his new position of communications dispatcher.

Beginning in 1987, Paul Kaitz was a volunteer firefighter for the Holliston Fire Department. He began working for the Massachusetts Department of Environmental Management (DEM) as a seasonal laborer on or about April 2, 1995. His title was Seasonal Fire Laborer I. On April 8, 1997, Kaitz injured his back while he was working in the Marlboro Sudbury Forest. He was clearing storm damage, cutting felled trees, when he picked up a section of cut tree and felt pain in his back, which radiated to the anterior aspect of the right side down to the knee level. He filed an injury report the same day.

On December 20, 2004, Kaitz reported that he injured his back and leg when he slipped on snow and ice after removing a plow from his vehicle in Hopkinton State Park. He filed an injury report the next day.

On or around June 12, 2005, as the result of a job reclassification, the job title for Laborer (Fire) II was changed to State Firefighter I, as State Firefighter I duties were not distinct from those of a Laborer (Fire) II within the Bureau of Forest Fire Control. Kaitz was unable to perform the duties of a firefighter and on May 3, 2006, DCR informed Kaitz that he was being transferred to the Bureau of Forest Fire Control’s Radio Dispatch Communications Center, as “there is no option for permanent modified duty in the State Firefighter I position.” The title of the job he was performing was Communications Dispatcher I.

On or about November 9, 2009, Kaitz filed with the State Board of Retirement an application for either accidental or ordinary disability retirement. The application was based on back injuries on April 8, 1997 at the Marlboro/Sudbury State Forest in Hudson and on December 20, 2004 in the Hopkinton State Park Building.

When asked to describe his job duties, Kaitz responded: “All phases of dispatching and communications for DCR. See attached job description for Dispatcher I.” Later in the application, he listed his current position as “State Firefighter I.” He described his job duties as climbing ladders and heavy lifting, which is required of a firefighter but not a dispatcher. The medical panel opined that Kaitz was not incapable of performing the essential duties of a Communications Dispatcher and the State Retirement Board notified Kaitz that his claim for an accidental disability retirement was denied.

Although he may not have been able to perform the duties of a firefighter, he was able to perform the less strenuous duties of a dispatcher.  When determining the essential duties of an applicant’s job, it is not enough to rely on the formal job description; the essential duties of an applicant’s job are the duties that he is actually required to perform. Here, because of his re-assignment from the position of firefighter to the position of dispatcher, he was able to perform the relevant job duties of his current and he was, therefore, unable to meet his burden to prove incapacity.  He listed the position of Communications Dispatcher in his disability retirement application and he had been working in that position for the last three years of his employment.

 

The Medical Panel Certificate

medical_panelAccidental Disability Retirement cases in Massachusetts begin with an employee’s treating physician making a determination that the employee is unable to perform the essential duties of his position and that the disability is job-related and permanent. Once the physician makes this determination, he should be asked to complete a physician’s statement to document his findings.

Next, the disabled employee files an application for disability retirement along with the physician’s statement. In response to the application and supporting physician’s statement, a three-physician regional medical panel is appointed to examine the applicant. The panel then issues a certificate answering the following three questions: (1) whether the applicant is disabled; (2) whether the disability is permanent; and (3) whether the applicant sustained the disability in the performance of his duties. The medical panel’s certificate must be supported by a report which explains how the panel reached its conclusions. The certificate and narrative report serve two roles in the application process: (1) gatekeeping and (2) medical expertise. In both capacities, the purpose of the medical panel examination and certificate is to “vest in the medical panel the responsibility for determining medical questions which are beyond the common knowledge and experience of the members of the retirement board.”

In its gatekeeping role, the medical panel must answer in the affirmative all three of the certificate questions for the application to be approved by the retirement board. The application cannot move forward where the majority of the medical panel responds in the negative to any of the three certificate questions (disability, permanency, and causation.)

Where there is an affirmative certification, the medical panel has fulfilled its gatekeeper role and its findings serve as expert medical evidence, which the board takes into account along with all other evidence when making its determination of causation. An affirmative certification is not conclusive and the determination of the ultimate fact of causation is reserved to the appeal board.

Once a majority of the medical panel responds affirmatively to the three statutory questions, the burden of proving disability is on the applicant. This is true both of the issue of disability and, for accidental disability cases, the issue of the causal nexus between the disability and the job-related accident. There are some exceptions to this usual analysis of causation in certain accidental disability retirement cases, such as in cases involving statutory presumptions.

Hire a Lawyer for your Mass. Disability Retirement Case

DISABILITY_RETIREMENTIn order to receive Accidental Disability Retirement (ADR) benefits in Massachusetts, an applicant must prove that he or she is permanently incapacitated from performing the essential duties of his or her position because of an injury sustained or hazard undergone while in the performance of his or her duties.

Every Massachusetts Accidental Disability Retirement case requires a certificate from a medical panel comprised of three physicians who must answer “yes” to the questions of disability, permanency, and causation. However, a medical panel certificate which unanimously states that an applicant was permanently disabled in the performance of his or her duties does not guarantee the award of a disability retirement. While the applicant’s retirement board may not generally ignore the medical panel’s findings, the retirement board is entitled to consider both the medical and non-medical evidence when ruling on a disability retirement application.

Having a lawyer represent you in a Massachusetts Accidental Disability Retirement case is important because you must convince the retirement board that you are permanently unable to perform the essential duties of your job by reason of a personal injury sustained or hazard undergone, as a result of, and while in the performance of your duties. This can sometimes be difficult to prove, depending on the facts and circumstances of the individual case.

There is no minimum age or years of service requirement to be eligible to apply for an Accidental Disability Retirement in Massachusetts. Please contact me if you believe that you can no longer perform your duties and you need to file for an accidental disability retirement in Massachusetts.