Opinion
19-P-488
12-18-2019
WORCESTER REGIONAL RETIREMENT BOARD v. CONTRIBUTORY RETIREMENT APPEAL BOARD & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Worcester Regional Retirement Board (WRRB) appeals from a Superior Court judgment affirming the Contributory Retirement Appeal Board's (CRAB) decision to award David Goodall accidental disability retirement benefits. We affirm.
Background. On December 21, 2011, David Goodall applied for accidental disability retirement due to an injury he suffered as a "lineman" for the Ashburnham Municipal Light Plant on April 20, 2010. At that time, Goodall was pulling wire while in a bucket truck when he felt a snap and a pop in his right middle finger, his dominant hand. Goodall felt immediate pain and noticed severe swelling. He was placed on light duty while he was receiving treatment. On June 10, 2010, Goodall underwent surgery. At this time, the surgeon discovered and treated additional issues with the injured finger. Despite the surgery and subsequent therapy, Goodall continued to have a limited range of motion and diminished strength in his right middle finger. Several months later, Goodall noted a "locking" sensation in his finger. His surgeon recommended an additional procedure and noted that Goodall might have sustained more injury than previously thought. Subsequent testing revealed injury to the volar plate of the finger. Additional surgery would require inserting metal anchors in the finger but Goodall was hesitant to undergo the surgery because of his work with high-voltage electricity. Goodall received a second medical opinion with the same recommendation. Initially Goodall agreed to undergo the second surgery, but ultimately did not have it done. An orthopedic surgeon opined that Goodall had a thirty percent loss of function in his injured right middle finger.
Goodall was examined by another doctor at the request of the worker's compensation insurer and by an impartial examiner requested by the Department of Industrial Accidents. On November 16, 2011, Goodall was terminated. He then applied for accidental disability retirement benefits. Following his application, a medical panel was convened. The three doctors agreed that Goodall was permanently disabled from his essential job duties due to the injury.
On October 18, 2017, CRAB affirmed the decision of the Division of Administrative Law Appeals (DALA) granting the requested benefits. On May 23, 2019, WRRB filed a complaint in the Superior Court seeking the reversal of CRAB's decision. On cross motions for judgment on the pleadings, WRRB's motion was denied and Goodall's motion was allowed. This appeal followed.
Discussion. An individual qualifies for accidental disability retirement benefits upon a finding that: (1) he is unable to perform the essential duties of his position; (2) the inability is likely to be permanent; and (3) the incapacity is a natural and proximate result of an injury sustained while in the performance of his duties at work. 840 Code. Mass. Regs. § 10.04(1) (1998). WRRB is not challenging DALA's or CRAB's factual findings. Instead, it argues that CRAB's decision was unsupported by substantial evidence and based on an error of law.
Judicial review of a CRAB decision, pursuant to G. L. c. 30A, § 14, is narrow and we set aside a decision only where the substantial rights of any party may have been prejudiced. As relevant here, prejudice may occur where there is an error of law or the decision is unsupported by substantial evidence. G. L. c. 30A, § 14 (7) (c ), (e ) ; Retirement Bd. of Revere v. Contributory Retirement Appeal Bd., 36 Mass. App. Ct. 99, 100 (1994). Although questions of law are reviewed de novo, we "typically defer to CRAB's expertise and accord ‘ "great weight" to [its] interpretation and application of the statutory provisions it is charged with administering.’ " Retirement Bd. of Stoneham v. Contributory Retirement Appeal Bd., 476 Mass. 130, 134 (2016), quoting Weston v. Contributory Retirement Appeal Bd., 76 Mass. App. Ct. 475, 479 (2010). "We ... will reverse only if [CRAB's] decision was based on an erroneous interpretation of law or is unsupported by substantial evidence." Retirement Bd. of Stoneham, supra, quoting Foresta v. Contributory Retirement Appeal Bd., 453 Mass. 669, 676 (2009).
Permanence of injury. WRRB argues that CRAB's determination that Goodall's incapacity was permanent was not supported by the evidence and that it was error to find that the injury was permanent because Goodall declined to submit to a second surgery.
A permanence determination can be made after considering "[w]hether the nature of the condition or injury is such that it could be expected to improve if the member were willing to undergo reasonable medical treatment or rehabilitative therapy" (citation omitted). Retirement Bd. of Revere, 36 Mass. App. Ct. at 110 ; 840 Code Mass. Regs. § 10.04(1)(b), (2)(b) (1998). "The ultimate finding as to permanence under the statute is a legal determination for CRAB.... The requirement of a medical panel evaluation and certificate in disability proceedings, however, reflects the legislative understanding that in each case there exist fundamental medical questions at the core of the disability issue that must be answered by medical experts." Retirement Bd. of Revere, supra at 111.
Here, CRAB issued detailed findings as to the permanence of the injury, including adopting many of DALA's findings. Cf. Retirement Bd. of Revere, 36 Mass. App. Ct. at 111 ("In the circumstances of this case, a detailed presentation [by physicians] and balancing of such facts and opinions were essential to a proper medical finding regarding the permanence of [the worker's] disability"). It considered the opinions of several doctors and hand specialists.
CRAB's finding that Goodall's first "surgery was not a success" is supported by the record. In addition to the pain and swelling, Goodall experienced a "locking" of his finger. He was often only able to bend his finger if he "reached over with his left hand, grasped the finger, and manually moved it into flexion." He had trouble holding a glass, washing dishes, and using utensils.
CRAB acknowledged that Goodall's case was unusual, because one factor CRAB must consider is "[w]hether the nature of the condition or injury is such that it can be expected to improve if the member were willing to undergo reasonable medical treatment or rehabilitation." 840 Code Mass. Regs. § 10.04(2)(b) (1998). It found, however, that
"Goodall's decision not to elect further reconstruction of his finger was closely tied to the demands of his work as a lineman. In order to work safely as a first-class lineman, working directly with high power, thirty-five or more feet off the ground, in close proximity to other live power lines, and sometimes also in close proximity to other linemen, Goodall's dominant right hand had to be at ‘100 percent.’ ... Even if he underwent a surgical repair of his volar plate and [proximal interphalangeal] joint, if that repair failed during a job, he could lose his hold and fall while climbing a pole, drop a live cable or a wrench or chain saw, mis-maneuver with the right-handed control of his aerial bucket, or in the worst case, place his or a fellow lineman's life in danger by causing a live wire to come into contact with his own or the other lineman's body.... The consequences of surgical failure could be dire."
Furthermore, any surgical repair would have to be able to withstand "unusually heavy stress," given the nature of Goodall's job. "[A]ny surgical repair of Goodall's finger had to be extremely strong, likely to withstand heavy, repetitive strain, and not likely to fail on the job." CRAB concluded that Goodall was not offered any surgical option that could meet those requirements. In so doing, CRAB considered all of the medical opinions, including those of the medical panel. Notably, all these doctors opined that Goodall was unable to perform the essential duties of his position, that the inability was permanent, and that the proximate cause was work-related.
Hwa-Hsin Hsieh, one of the doctors on the medical panel, initially asserted that "it is my opinion within a reasonable degree of medical certainty that if Mr. Goodall had undergone surgery as recommended it would not have guaranteed a correction of the problem and allowed him to resume his duties." Upon being informed by WRRB that no "guarantee" of positive outcome was required, Hsieh clarified his opinion, stating that "Mr. Goodall's condition is such that, if he were willing to undergo the recommended surgery to his finger, improvement would be expected and surgery would be beneficial. It is reasonable to anticipate a return to his usual work duties following rehabilitation from such a surgery, although it may take six months to one year." CRAB found Hsieh's opinion uncomprehensive, because he "did not further discuss his concern that the surgery might not ‘correct the problem,’ or assess the likelihood of surgical failure." Additionally, he did not "discuss the likelihood that, even if the finger were successfully repaired, it might be re-injured with heavy, repetitive use."
Another member of the medical panel, Dr. Steven Sewell, opined that "if [Goodall] had the surgery, he would be able to return to his regular work." However, CRAB found that, like Hsieh, Sewell did not address whether the surgery "would result in a strong enough repair to hold up to the type of heavy, repetitive strain that Goodall's work duties placed on his hands, or discuss the safety concerns that would be posed if the repair failed while Goodall was working with live electrical lines."
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CRAB expressly gave limited weight to the opinions of three doctors that did not address what CRAB viewed to be the "critical issue here -- whether, even if Goodall agreed to undergo a further surgical repair of his finger, the resulting repair would be strong enough and reliable enough to withstand the heavy and repeated strain placed on his hand by his work as an electrical lineman." CRAB concluded that this was an "unusual case, involving an unusually dangerous occupation, in which both strength and dexterity of the hands are required to protect a worker and others at the site from life-threatening injury from live electrical wires."
CRAB ultimately concluded that because of the dangerous nature of Goodall's work and its expectations, the proposed surgery would not allow Goodall to return to work safely. "It is not the lack of a ‘guarantee’ that Goodall could return to work that is relevant here, but the lack of any available surgical re-repair of his finger that -- even if successful -- would have allowed him to return to work." Therefore, Goodall did not refuse reasonable medical treatment, as he was "not presented with a surgical option for re-repair of his finger that was reasonable in light of the unusual demands and characteristics of his job."
Much of WRRB's argument is centered on the credibility of the witnesses and the weight of the evidence. This is solely within CRAB's purview. Number Three Lounge, Inc. v. Alcoholic Beverages Control Comm'n, 7 Mass. App. Ct. 301, 309 (1979). There is nothing in the record to support WRRB's contentions that CRAB's decision was unsupported by substantial evidence and based on an error of law.
Judgment affirmed.