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.