Larson v. State Retirement Board & Contributory Retirement Appeal Board

10 Mass. L. Rptr. 649
CourtMassachusetts Superior Court
DecidedNovember 5, 1999
DocketNo. 981719
StatusPublished

This text of 10 Mass. L. Rptr. 649 (Larson v. State Retirement Board & Contributory Retirement Appeal Board) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Larson v. State Retirement Board & Contributory Retirement Appeal Board, 10 Mass. L. Rptr. 649 (Mass. Ct. App. 1999).

Opinion

Hillman, J.

INTRODUCTION

Plaintiff Flora Larson (“Larson”) has filed this administrative appeal pursuant to G.L.c. 30A, §14 from a final decision of the Contributory Retirement Appeal Board (“CRAB”) affirming the State Board of Retirement’s (“SBR”) denial of accidental disability retirement benefits to Larson. For the reasons set forth below, CRAB’s decision is AFFIRMED.

BACKGROUND

Larson worked at Westboro State Hospital (“Westboro”) as a nurse from September 1982 until April 3, 1987. On Larson’s last day of work at Westboro, a patient struck her on the head and knocked her to the ground. As a result, Larson sustained injuries to her head, neck and back.

In the days following the incident, Larson experienced persistent headaches, dizziness and neck pain. On April 17, 1987, Dr. John Bianchi observed Larson. Bianchi opined that Larson suffered cervical-dorsal sprain and referred Larson to physical therapy.

On June 24, 1987, a little more than two months after seeing Dr. Bianchi, Larson visited Dr. Arthur Safran. In Dr. Safran’s opinion, Larson’s symptoms of headaches, dizziness and neck pain resulted from facial injury and muscle contraction pain. Approximately eight months later, on February 10, 1988, Dr. [650]*650Safran re-evaluated Larson and found no evidence of fracture or defect in bone alignment. Dr. Safran further concluded that Larson had suffered soft tissue injury and cervical injury complicated by post traumatic stress syndrome with fearfulness, insomnia and recurrent dreams of injury. Dr. Safran further recommended that Larson undergo a psychiatric evaluation.

A little more than a year later, on February 27, 1989, Larson consulted Dr. Safran for a third time. Dr. Safran then diagnosed Larson with cervical spondylo-sis and with cervical strain superimposed. Dr. Safran stated, in his opinion, that Larson could return to work at Westboro so long as Westboro did not require her to lift or restrain patients.

On January 6, 1992, approximately three years after her third visit with Dr. Safran, Larson met with a different physician, Dr. Vincent Birbiglia. Larson told Dr. Birbiglia that she suffered from episodic blackouts. In Dr. Birbiglia’s opinion, Larson suffered from episodic blackouts. Dr. Birbiglia, in a letter to Larson’s attorney, stated that Larson’s blackouts were not related to the injury she suffered at Westboro. Later, in July of 1992, Dr. Birbiglia ordered that Larson undergo both an EEG and a 72-hour Holier monitor. Neither one of these tests revealed an abnormality.

On March 18, 1992, Larson consulted Dr. Safran for a fourth time. Dr. Safran then diagnosed Larson with neck and back pain. Dr. Safran, however, found no evidence of objective abnormalities. Dr. Safran concluded that the injury Larson suffered while working at Westboro did not cause her blackouts.

Sometime later Larson applied for accidental dis-abiliiy retirement benefits. In February 1997, a regional medical panel comprised of three physicians convened to examine Ms. Larson pursuant to G.L.c. 32, §7. Drs. Lawrence Shields (orthopedic surgeon), Mordecai Berkowitz (orthopedic surgeon), and Thomas Sciascia (neurologist) comprised the panel.

Dr. Sciascia examined Larson on February 11, 1997. Dr. Sciascia concluded that in his opinion, Larson suffered from syncope1 and postural dizziness and that Larson was permanently incapacitated from performing her job duties at Westboro. Dr. Sciascia further stated that in his opinion as a neurologist, Larson’s injury at Westboro caused her syncope and postural dizziness.

Dr. Shields examined Larson on February 21, 1997. Dr. Shields stated, that in his opinion, Larson was permanently disabled. Dr. Shields, however, expressed uncertainty as to whether Larson’s injury at Westboro caused her syncopal episodes. Specifically, Dr. Shields stated: “Whether the syncopal episodes have been related to [Larson’s] fall and head trauma is beyond the scope of the orthopedic surgeon and must be determined neurologically.”

Dr. Berkowitz examined Larson on February 27, 1997. Dr. Berkowitz stated that in his opinion, Larson was not disabled from performing her job duties. He concluded that he was “unable to appreciate any clear-cut objective findings from an orthopedic perspective, which would preclude her working as a Registered Nurse.”

Thus, only Dr. Sciascia concluded that Larson was permanently disabled from performing her job duties as a registered nurse and that the injury Larson sustained while working at Westboro caused her permanent disability. Drs. Berkowitz and Shields did not concur with Dr. Sciascia’s conclusion. A majority of the regional medical panel, therefore, did not agree that Larson was permanently disabled from performing her job as a result of the injuries she sustained while working at Westboro. Consequently, the State Retirement Board denied Larson’s application for accidental disability retirement benefits. Shortly thereafter, Larson appealed the State Retirement Board’s decision.

On February 10, 1998, the Division of Administrative Law Appeals held a hearing on Larson’s appeal. On March 30, 1998, the Division affirmed the State Board of Retirement’s denial of Larson’s claim stating that she failed to meet her burden of proof regarding causation. Larson objected to the Division’s decision on April 3, 1998. As a result, the Contributory Retirement Appeal Board (“CRAB”) conducted a hearing on the matter. CRAB affirmed the decision of the State Board of Retirement on July 20, 1998, because of Larson’s failure to sustain her burden of proof that the injury she sustained while working at Westboro caused her disability. Larson now appeals the matter to this Court pursuant to G.L.c. 30A, §14.

DISCUSSION

The party appealing an administrative decision bears the burden of demonstrating the decision’s invalidity. Coggin v. Massachusetts Parole Bd., 42 Mass.App.Ct. 584, 587 (1997); Boston v. Outdoor Advertising Bd., 41 Mass.App.Ct. 775, 782 (1996), citing [Merisme]. Merisme v. Bd. of Appeals on Motor Vehicle Liab. Policies & Bonds., 27 Mass.App.Ct. 470, 474 (1989). In reviewing the agency decision, this Court is required to give due weight to the agency’s experience, technical competence, specialized knowledge, and the discretionary authority conferred upon it by statute. Iodice v. Architectural Access Bd., 424 Mass. 370, 375-76 (1997), citing G.L.c. 30A, §14(7); Amone v. Comm’r of the Dept. of Social Services, 43 Mass.App.Ct. 33, 34 (1997); Foxboro Harness, Inc. v. State Racing Comm’n, 42 Mass.App.Ct. 82, 87 (1997); Cahalen v. Comm’r of the Dept. of Employ, and Training, 41 Mass.App.Ct. 26, 27 (1996); Van Munching Co. v. Alcoholic Beverages Control Comm’n, 41 Mass.App.Ct. 308, 309 (1996); Phillip's case, 41 Mass.App.Ct. 612, 615 (1996) (workers’ compensation); Flint v. Commissioner of Pub. Welfare, 412 Mass. 416, 420 (1992). The reviewing court may not substitute its judgment for that of the agency. Southern Worcester County Re[651]*651gional Vocational Sch. Dist. v. Labor Relations Comm’n, 386 Mass. 414, 420-21 (1982), citing Olde Towne Liquor Store, Inc. v. Alcoholic Beverages Control Comm’n, 372 Mass. 152, 154 (1977).2

“The approach is one of judicial deference and restraint, but not abdication.” Amone v. Comm’r of the Dept. of Social Services, 43 Mass.App.Ct.

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10 Mass. L. Rptr. 649, Counsel Stack Legal Research, https://law.counselstack.com/opinion/larson-v-state-retirement-board-contributory-retirement-appeal-board-masssuperct-1999.