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Ferraro v. Employees Retirement System of Rhode Island

Superior Court of Rhode Island, Washington

August 3, 2017


          For Plaintiff: Michael P. Lynch, Esq.

          For Defendant: Michael P. Robinson, Esq.; John H. McGann, Esq.; Rene Pickett, Esq.


          K. RODGERS, J.

         This matter is presently before this Court on an appeal by Appellant Peter Ferraro (Appellant) from a decision of the Retirement Board of the Employees' Retirement System of the State of Rhode Island (Retirement Board or Appellee). Appellant has sought accidental disability retirement benefits as a result of two incidences on August 28, 2007 and March 31, 2009 while working at the Westerly Middle School. In its decision dated October 11, 2012, the Retirement Board denied Appellant's appeal from a May 18, 2012 decision of the Disability Subcommittee, thus affirming the denial of Appellant's application for accidental disability retirement benefits.

         This Court has jurisdiction over this matter pursuant to G.L. 1956 § 42-35-15. For the reasons that follow, this Court affirms the decision of the Retirement Board.


         Facts and Travel


         Appellant's Medical History

         Appellant has a long and complicated medical history that dates back to 1989. At that time, Appellant was employed as a truck driver; he was a passenger in a motor vehicle accident that resulted in significant lower lumbar spine injuries and prevented him from continuing with that profession. Appellant thereafter obtained a degree in education and a teaching certificate and applied to the Westerly School District. He began working for the Westerly School District sometime during the 1990s.

         In 2001, Appellant began treating with Dr. Frank W. Maletz, an orthopedic physician. Dr. Maletz initially saw Appellant for lower back problems, primarily from a slipped vertebrae. (R. Ex. 13, at 000084[1].) Dr. Maletz opined that Appellant's lower back problems were likely caused by a number of conditions, such as playing football in high school, being a truck driver, the 1989 truck accident, and teaching, which required standing or sitting for long periods of time. Id. at 000085. However, Dr. Maletz could not treat Appellant's back problems because his weight, which at the time was approximately 450 pounds, exceeded the 400 pound weight limit on certain hospital equipment.

         Appellant then began treating with another physician for weight control, leading to a gastric bypass surgery in early 2002 from which he suffered life-threatening complications. Appellant developed an extensive and potentially fatal infection, kidney failure, and a number of other concurring medical conditions. Id. at 000087. As a result of those complications, Appellant was hospitalized for nearly two years. While the surgery was highly successful from a weight-loss perspective, the complications and lengthy recovery exacerbated his back condition. Id. at 000089.

         Appellant was in a manually operated wheelchair when he resumed treatment with Dr. Maletz for his back in 2004. After allowing Appellant to recover as completely as possible from the extensive infection and other conditions, in 2006 Dr. Maletz performed a lumbar fusion surgery on Appellant, from L3 to the sacrum. Id. at 000095-000096. According to Dr. Maletz, Appellant recovered well from the back surgery inasmuch as he had no further infections and the lower back was fused. Id. at 000096. However, as anticipated, the nerves did not recover well after five years of nerve compression. Id. Appellant was dependent on pain medication long after the back surgery, although he was motivated to discontinue narcotic use and was on a weaning program for some time. Id. at 000097.

         On August 6, 2007, Appellant was released by Dr. Maletz from total temporary disability to "partial temporary duties, " indicating that he could return to work with certain safety features to assist in his return, such as modifications to his car and continued wheelchair use, despite his progress toward walking with crutches. Id. at 000099-000100. Appellant was scheduled to return to Dr. Maletz for a follow-up visit four months later. Just two days later, on August 8, 2007, Appellant reported to Dr. Alexander Scagnelli, Appellant's psychiatrist, a pain level of ten on a scale of one to ten. (R. Ex. 32, at 000385.)

         On August 28, 2007, during the first week of the new school term, Appellant fell backwards in his wheelchair while at work at the Westerly Middle School. The wheel of his chair had caught on an extension cord stretched across the floor; the wheelchair fell backwards and a nearby podium fell on Appellant as he landed on the back of his wheelchair striking his neck and shoulders, primarily on the right side. (R. Ex. 11, at 000075.) Appellant was treated at the Emergency Room at The Westerly Hospital where x-rays of his pelvis, chest, spine and right shoulder were taken, as was a CT scan of his cervical spine. No fractures or dislocations were observed, although degenerative changes were noted in the lumbar and cervical spine, hips, and right shoulder AC joint. (R. Ex. 33, at 00059-000564.) Physicians at Westerly Hospital also noted there was evidence of DISH[2] with multiple level degenerative change. Id. at 000559, 000562-000564.

         Appellant followed up with Dr. Maletz on September 6, 2007. Upon exam, Dr. Maletz noted pain in the neck area that prevented extension, and bruising over his shoulders and scapula from where the podium struck him. (R. Ex. 11, at 000075.) Appellant complained of pain in both shoulders, headaches and blurry vision which was worse on his left side. Id. Dr. Maletz's records indicate that Appellant "stated unequivocally that he did not lose consciousness." Id. (emphasis in original). Dr. Maletz recommended that Appellant not return to teaching at that time and that limited physical therapy could resume several days thereafter, once his contusions and bruises had dissipated. Id. at 000074.

         At a two-week follow-up appointment on September 24, 2007, Dr. Maletz examined Appellant and noted that he "looks as if he is back to his pre-fall status." Id. at 000073. With the exception of some "right-sided para-occipital head pain, " Dr. Maletz determined that his "clinical examination is satisfactory in the cervical spine with a return of range of motion." Id. Dr. Maletz also noted that there was no evidence of significant shoulder abnormality and his right side peri-scapular pain was improving. Id. Dr. Maletz recommended that Appellant return to work by October 1, 2007. Id. Finally, Dr. Maletz explained that "given his neurocirculatory integrity, I've reassured him and his wife, Anne Marie, that I do not anticipate any long-term sequelae." Id.

         Appellant next saw Dr. Maletz on April 7, 2008, at a scheduled follow-up visit that Dr. Maletz stated was partly a follow-up on his lumbar spine surgery and partly due to a request for a report pursuant to a Connecticut Workers' Compensation claim related to his trucking injury in 1989. (R. Ex. 13, at 000105-000106.) With respect to the August 28, 2007 fall at the Westerly Middle School, Dr. Maletz noted that "the patient had sustained injury in a wheelchair incident at work when he went over backwards re-injuring his back and hitting his head. There has been no apparent long-term sequelae from this." (R. Ex. 11, at 000072.) Dr. Maletz went on to describe Appellant's "strong sound upper extremity functionalities" he observed on examination, notwithstanding Appellant's continued wheelchair use. Id.

         During the 2007-08 school year, Appellant was absent a total of ninety-one days. (R. Ex. 10, at 000061.)

         Appellant's next appointment with Dr. Maletz's office was on October 10, 2008, which was initiated due to increased lower back pain. (R. Ex. 13, at 000107.) The office notes for that visit, authored by Melissa T. Langer, PA-C, reveal that Appellant was experiencing left-sided lower latissimus musculature spasms, noting that "[h]e does have a palpable tightness along the left lower latissimus area consistent with a muscle spasm. This is exacerbated with his left arm being extended all the way over his head with lateral bending to the right which causes his pain." (R. Ex. 11, at 000070.) Dr. Maletz recommended that he perform daily stretches at least 3 to 4 times per day, referred him to physical therapy and increased his Percocet dosage on a temporary basis. Id. No reference is made in the October 10, 2008 medical notes to the August 28, 2007 fall. See id.

         Appellant treated with Peter E. Bolton, M.D., his semi-regular primary care physician and the internist, for some of his many concurrent health conditions unrelated to his orthopedic conditions. Appellant visited Dr. Bolton on February 26, 2009 complaining of "pain lower left side front to back" and reported that he was experiencing "daily neck/head pain." (R. Ex. 32, at 000450.) Dr. Bolton wrote that he recommended a referral to an orthopedist for head and neck pain and a C spine evaluation. Id. From about March 9th through March 19th, Appellant was out of work for a stomach illness. Id. at 000447-000449. In an office visit on May 18, 2009, Dr. Bolton recorded that Appellant was complaining of "neck pain and down back, still not back to work, head pain." Id. at 000446. There was no mention of an incident occurring on March 31, 2009, but the record included an additional notation that Appellant was having "increased difficulty at work: pain so bad, goes to bed when home from work, " despite the notation that he was not working at the time. Id.

         In the early part of the 2008-09 school year, Appellant was absent seventeen days through the end of February. (R. Ex. 10, at 000061.) Appellant was also absent from March 9 through March 20, 2009, as well as on March 30, 2009. Id.

         Appellant returned to work on March 31, 2009. While seated in his wheelchair at the Westerly Middle School that morning, Appellant reached for a paper that had fallen to the ground and felt a snap/spasm in his mid-lower back and the right side of his shoulder/neck area. (R. Ex. 6, at 000038.) Appellant left work that day and remained out for the balance of the 2008-09 school year. (R. Ex. 10, at 000061.)

         On the same day of this second incident at the Westerly Middle School, Appellant returned to Dr. Maletz's office for a follow-up on his progress. Dr. Maletz reported that in the last three months, there has been "a slow but very progressive change in his dysfunction, his pain, his sitting tolerance and his total inability to sleep much beyond 4:00 o'clock or so in the morning. He's having difficulty with clarity at work and is very depressed about his lack of functional capabilities." (R. Ex. 11, at 000069.) Dr. Maletz noted that "[h]is neck is problematic more right side than left with referred pain over the scapular area and peri-scapular region. He has tenderness along the trapezius and his neurocirculatory status in the upper extremity is stable." Id.

         Additionally, Dr. Maletz noted that Appellant was exhibiting more lumbar area pain, intense soreness with deep palpation along the paralumbar and right SI joint, and "exquisite groin pain." Id. When asked in deposition whether this was the first time Appellant mentioned his cervical spine or clarity issues since the August 2007 accident at the Westerly Middle School, Dr. Maletz responded that it was, but that the time interval "would be very usual" for an injury "moving from an acute injury to a chronic pattern with degenerative conditions supervening." (R. Ex. 13, at 000110.) Dr. Maletz placed Appellant on total temporary disability, ordered an upgraded MRI scan and flexion/extension views of his lumbar spine and cervical spine, increased his pain medication, and changed his muscle relaxant prescription. (R. Ex. 11, at 000069.) Notably, there is no reference in Dr. Maletz's report from the March 31, 2009 office visit to the reaching incident at the Westerly Middle School earlier that day. See id.

         Appellant returned to Dr. Maletz on June 3, 2009 to follow-up on the scans taken in May. Dr. Maletz's medical note reads as follows:

"Peter's current status is that he is, of course, wheelchair bound, has his motorized wheelchair. He also is functioning very poorly with respect his [sic] cervical spine and headaches. He has reduced range of motion and continuous headaches, which vary from 2 to 3 day intervals to more intermittent. In addition, his chronic pain is both myofascial cervical and paralumbar, thoracolumbar. His current status is multi-level disc bulge, spondylosis over multiple levels in the cervical spine. There is no question that some of this pre-existed but was asymptomatic. All of this was exacerbated by his fall on his return to school.
. . .
"Clinical exam today is consistent with a wheelchair bound patient who is, in my opinion, unemployable. He does not at this time need any significant surgical intervention. His ability to function as a teacher is markedly limited by clarity and chronic pain issues due to the meds that he's on, his continual headaches, cervicalgia and cephalgia, and also the lumbar spinal condition and residual from all of the complications to his obesity surgery." Id. at 000068.

         Again, no mention is made of the reaching incident at the Westerly Middle School on March 31, 2009. See id.

         Dr. Maletz again followed-up with Appellant on July 1, 2009. Dr. Maletz reported that Appellant was expected to attend a non-disciplinary hearing at school that evening and that Appellant anticipated being fired for excessive absences. Id. at 000067. Appellant presented with "an incapacitating migraine with cervicalgia and was unable to even talk and poorly functional today with difficulty mentating." Id. Pursuant to his review of additional scans, Dr. Maletz determined that "his cervical levels shows disc desiccation, bulging and spurring at C2-3, 3-4, 4-5, desiccation bulge and spurring at C5-6 and at the 6-7 level about the only areas that are even remotely normal in the cervical spine." Id. Dr. Maletz further wrote:

"He carries diagnoses of multi-level cervical disc disease, multi-level lumbar disc disease, spondylolisthesis and post impact myofascial pain with significant changes. All of these issues are the result of that fall, and that resulted in substantial increases in pain and severe problems related to function, mental clarity, and issues that definitely relate to his employability. There was also a listed question raised to me regarding a work-related episode of injury of 2/31/09 [sic]. This was simply a reaching episode where increased back spasm occurred." Id.

         This was the first reference in Dr. Maletz's records to the second work-related incident, although admittedly typed erroneously. (See R. Ex. 13, at 000148.)

         Dr. Maletz again saw Appellant on September 28, 2009 and February 4, 2010. In September, Dr. Maletz stated that his symptoms continued to "be the ever increasing deconditioning syndrome from the years of crutch walk and use of his wheelchair and propelling himself with his arm." (R. Ex. 11, at 000066.) He went on to explain that "[h]e is gaining more symptoms in the right shoulder. He has rotator cuff tendinopathy by exam today, and also biceps tendinitis which is significant." Id. In February, Dr. Maletz stated that he was "definitely struggling with headaches and is having greater problems with his upper neck and head, " but that he was not seeing any changes to his lower ...

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