PAUL B. NOONE vs. CONTRIBUTORY RETIREMENT APPEAL BOARD & another. [Note 1]

GILLERMAN, J. Paul B. Noone, a Superior Court probation officer, was denied his 1985 application for accidental disability retirement benefits under the provisions of G. L. c. 32, Section 7(1). Section 7(1) requires that the applicant be totally

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and permanently incapacitated for further duty by reason of an injury sustained as a result of the performance of the applicant's duties. [Note 2] The qualifying injuries identified by Noone were myocardiac infarction, for which he was hospitalized in 1983, hypertension with elevated blood pressure, and endocarditis, for which he was hospitalized in November, 1984. We conclude that the decision of the Contributory Retirement Appeal Board (CRAB) was in error, and we remand the case to the Superior Court for further proceedings.

1. Prior proceedings. In response to Noone's application, the regional medical panel required by G. L. c. 32, Section 6(3)(a), [Note 3] examined Noone, his hospital records, and the

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report of Noone's physician, Dr. Lawrence Baker. The board certified that Noone was totally and permanently incapacitated to perform his duties as a probation officer by reason of "coronary heart disease, history of degenerative disc disease, and chronic anxiety state." In response to the third question required to be answered by G. L. c. 32, Section 6(3)(a) -- whether the disability was "such as might be the natural and proximate result of the personal injury sustained or hazard undergone on account of which retirement is claimed" (emphasis added) [Note 4] -- the panel answered, "no; predisposed to coronary heart disease by multiple risk factors; myocardial infarction was not work-related."

The certificate of the panel was submitted to the State Board of Retirement (the State board) on March 29, 1989. [Note 5] It is the State or local board which makes the initial determination of causation based on medical and nonmedical facts. See Kelley v. Contributory Retirement Appeal Bd., 341 Mass. 611, 614 (1961). The State board denied Noone's application, and Noone appealed the adverse decision to CRAB. See G. L. c. 32, Section 16(4). [Note 6]

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CRAB, as required by Section 16(4), assigned the appeal to the division of administrative law appeals for a hearing by an administrative magistrate. See G. L. c. 7, Section 4H. Noone testified on his own behalf and submitted the medical report of two physicians, Dr. Schwartzreich, whose report was not before the medical panel, and Dr. Baker, whose report was considered by the panel.

On the basis of Noone's testimony and hospital records, the medical reports of his physicians, and the certificate of the medical panel, the magistrate made extensive findings of fact. In brief, the magistrate found that in the 1980's Noone was pursued by a person who at one time was obliged to report to Noone as his probation officer. The probationer later accused Noone of attempted extortion, but Noone was found innocent of all charges. Later still, while subsequently incarcerated, the probationer made it known that Noone was on his "hit list" upon his release from State prison. On May 19, 1983, approximately one month after the receipt of this threat, Noone, while at work, reached for his briefcase, which weighed approximately twenty to thirty pounds, and pulled it up to his desk. Severe pain in his chest, left arm and jaw, followed, and he was taken to the Salem Hospital emergency room. The diagnosis was "acute posterior myocardial infarction." Noone returned to work about October 1, 1983.

On November 27, 1984, Noone was hospitalized with endocarditis. The magistrate found that the panel concluded that this event was unrelated to Noone's previous myocardial infarction. The magistrate also found, however, that Dr. Baker had opined that the myocardial infarction had left Noone with a deficiency in "cardiac reserve" and thus bore a direct relationship to the subsequent work-related endocarditis. Noone returned to work in January, 1985. He last worked in July, 1986, when he fell down a flight of stairs while visiting a probationer and sustained an acute herniated disc.

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The magistrate described what she regarded as defects in the certificate of the medical panel: (i) the panel, in concluding that the myocardial infarction was not work-related, relied on risk factors even though risk factors are merely markers to alert physicians to the possible increased risks of the development of coronary heart disease, (ii) the panel was in error on the facts of Noone's risk factors; contrary to the finding of the panel, Noone's father did not die of heart disease; that error made a valid assessment of Noone's risk factors impossible, and (iii) the panel did not have and did not consider the detailed medical report of Dr. Schwartzreich, which concluded that Noone should stop work because of the danger of another cardiovascular event caused by stress on the job, including the threats to his life by the former probationer.

According to the magistrate, the report of the panel, and its focus on risk factors, left unanswered two questions: could the physical stress on Noone produced by lifting a heavy briefcase on May 19, 1983 -- the event that immediately preceded Noone's hospitalization for myocardial infarction -- be sufficient to amount to a "personal injury" caused by the performance of his duties? Did the myocardial infarction leave Noone with a diminution of coronary reserve as Dr. Baker had opined?

The magistrate concluded that Noone had been "deprived of a proper medical panel evaluation in accordance with G. L. c. 32, Section 6(3)," and recommended that the application be remanded to a new medical panel.

CRAB's decision, after reciting the adoption of all the findings of fact of the magistrate, and after stating that an affirmative certificate of the medical panel is a "condition precedent" to an award of benefits, states:

"In this case, the members of the medical panel unanimously certified that [Noone] was totally and permanently incapacitated from performing his duties but further certified that there was not a medical possibility of a causal relationship between the disability and a personal injury or hazard undergone while in the performance

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of duties. Upon the facts as found and the reasonable inferences to be drawn [, i]t is this board's finding that [Noone] has not sustained his burden of showing a causal relationship between his disability and a personal injury or hazard undergone while in the performance of his duties. The decision of the [State board] is, therefore, affirmed."

Noone filed a complaint in the Superior Court, see G. L. c. 30A, Section 14, seeking judicial review of the CRAB decision, and a judge of the Superior Court affirmed.

2. Discussion. The panel's certificate was in error in two respects. Of primary importance is the fact that the medical panel did not satisfactorily answer the third question assigned to it by G. L. c. 32, Section 6(3)(a): [Note 7] whether, in the opinion of the panel, the total and permanent disability of Noone "is such as might be the natural and proximate result" of a work-related injury (emphasis added). In block "K" of the form of certificate provided by the Commonwealth, the panel answered "No" to the third issue. But the form also called upon the panel to state "the medical basis for your conclusion." [Note 8] It was in response to that instruction that the panel answered: "predisposed to coronary heart disease by multiple risk factors; myocardial infarction was not work-related."

The response of the panel is not without some ambiguity. Nevertheless, we take the effect of their certificate to be this: rather than stating whether Noone's disability "might be" a work-related injury, as required by the statute, the panel gave an unqualified certificate that it was "not work-related." This construction is confirmed by the text of an accompanying letter to the State board from the chairman of the medical panel. The letter, which recapitulates the work and findings of the panel, concludes that "[t]he panel carefully considered the multiple risk factors which he [Noone]

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was predisposed to coronary heart disease [sic] and the panel concluded acute myocardial infarction was not work-related. The panel has therefore answered unanimously no to question three."

The panel has no statutory authority to express an unqualified negative opinion as to causation, and such an opinion, if expressed, is a nullity. [Note 9] Kelley v. Contributory Retirement Appeal Bd., 341 Mass. at 614-616. This is because the local board is entitled to know whether, in the opinion of the panel, there is a medical possibility that the causal relation exists; absent such information, the local board lacks medical information that, with nonmedical facts presented to the board, provides the basis for the decision of the local board on the question of causation. As noted above, the statute gives to the local board, not to the panel, the determination whether, on the relevant evidence, the causal relationship exists. As Kelley, supra at 616, points out, where "the certificate states only the conclusion that there is no causal connection, the local board does not know whether the opinion of the physicians on the possibility of causal connection is such that the board may proceed with the case."

A second, and independent, ground for the legal insufficiency of the panel's certificate is the fact that the panel's reliance on "risk factors" [Note 10] does not explain or justify its negative answer on causation. The issue, as the Supreme Judicial

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Court has pointed out, is whether the disability of the applicant was caused by the gradual deterioration of his cardiac organs -- and thus not work-related -- or whether his or her disability "was accelerated by a strain or exertion attributable to his work. . . ." Brzozowski's Case, 328 Mass. 113, 116 (1951). See Blair v. Selectmen of Brookline, 24 Mass. App. Ct. 261, 264 (1987). Contrast Zerofski's Case, 385 Mass. 590, 594-595 (1982) (distinguishing between compensable injuries arising from a specific injury at work and "wear and tear" injuries). It is not necessary that the work which caused the strain be heavy or unusual. Brzozowski's Case, supra at 115. Blanchette v. Contributory Retirement Appeal Bd., 20 Mass. App. Ct. 479, 485 n.4 (1985). The substantive issue that the statute assigns to the medical panel -- whether Noone's total and permanent disability was such as "might be" work-related -- is not answered by reference to risk factors.

CRAB's underlying error is that it mistakes the nature of the hearing before the board when a negative certificate of the medical panel is in evidence. [Note 11] , [Note 12] General Laws c. 32, Section 16(4),

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gives "any person . . . aggrieved" by a decision of a retirement board the right to appeal to CRAB, and Kelley holds that "an applicant . . . [is not] foreclosed by a plainly wrong medical certificate, or by a certificate made without conforming to the required procedure or physical examination and review of all the pertinent facts. It follows that [CRAB] may not affirm the decision of the local board on a negative certificate without giving the applicant an opportunity to show such wrong or illegal action. . . ." 341 Mass. at 617.

We conclude that the CRAB decision, resting entirely, as it does, on the erroneous opinion of the medical panel, is itself erroneous as matter of law, see G. L. c. 30A, Section 14(7)(c), and its decision must be vacated. [Note 13]

The case is to be remanded to the Superior Court for the entry of a judgment ordering a remand to CRAB for further proceedings. See Kelley, supra at 618. There should be a certificate by the medical panel as to whether Noone's disability resulted from an injury such as "might be the natural and proximate result" of the performance of his duties. Id. at 616. See Namay v. Contributory Retirement Appeal Bd., 19 Mass. App. Ct. 456, 462 n.9 (1985). The medical panel may seek and consider additional facts and opinions on the issue of causation. The certificate of the medical panel, together

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with Noone's application, may then proceed to the State board for a decision on Noone's application. [Note 14]

So ordered.