Plaintiff: Michael P. Lynch, Esq.
Defendant: Michael P. Robinson, Esq.; John H. McGann, Esq.;
Rene Pickett, Esq.
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
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.
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.
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.) 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.
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
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.
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
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 with multiple level
degenerative change. Id. at 000559, 000562-000564.
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.
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
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.
the 2007-08 school year, Appellant was absent a total of
ninety-one days. (R. Ex. 10, at 000061.)
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.
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.
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.
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.)
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
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.
returned to Dr. Maletz on June 3, 2009 to follow-up on the
scans taken in May. Dr. Maletz's medical note reads as
"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
no mention is made of the reaching incident at the Westerly
Middle School on March 31, 2009. See id.
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
"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."
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.)
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 ...