STATE OF MICHIGAN DEPARTMENT OF CONSUMER AND INDUSTRY SERVICES BUREAU OF HEARINGS. Agency No.

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1 STATE OF MICHIGAN DEPARTMENT OF CONSUMER AND INDUSTRY SERVICES BUREAU OF HEARINGS In the matter of Jack A. Piotter, Petitioner v Public School Employees Retirement System, Respondent / Docket No Agency No. Agency: Case Type: Appeal Disability Department of Management & Budget Issued and entered this 5 th day of January, 2001 by C. David Jones Administrative Law Judge PROPOSAL FOR DECISION PROCEDURAL HISTORY This matter began with Petitioner s filing (through his then attorney Marvin Littman) on or about April 24, 2000, of an appeal of denial of duty disability retirement benefits. On May 16, 2000, a Notice of Hearing was mailed scheduling the hearing to commence on July 10, 2000, at 1:30 p.m. at 611 West Ottawa Street, Lansing, Michigan. On July 17, 2000, an Order Granting Adjournment was issued and entered at Petitioner s request rescheduling the hearing for September 11, On September 7, 2000, a Notice of Appearance for Petitioner was received from Attorney Martha M. Glaser.

2 Page 2 Also on September 7, 2000, an Appearance was received from Michelle M. Rick, Assistant Attorney General, on behalf of Respondent. On September 12, 2000, an Order Granting Adjournment at Petitioner s request was issued and entered rescheduling the hearing for November 27, The November 27, 2000, hearing was held as scheduled. Attorney Martha Glaser represented Petitioner. Assistant Attorney General Michelle Rick represented Respondent. The following witness testified on behalf of Petitioner: Jack Piotter, Petitioner. The following exhibit offered by Petitioner was admitted into the record: Petitioner s Exhibit 1, records of Dr. Athens. No witnesses testified on behalf of Respondent. The following exhibits offered by Respondent were admitted into the record: Respondent s Exhibit A, administrative record; Respondent s Exhibit B, October 15, 1999, memo from L. Consiglio. The record was left open until December 27, 2000, for each attorney to offer medical evidence from Petitioner s worker s compensation case. On December 19, 2000, a letter was received from Martha M. Glaser indicating that Petitioner was not offering any additional medical evidence. No additional medical evidence or communication from Respondent was received by December 27, 2000, or by the date of this Proposal for Decision. ISSUE AND APPLICABLE LAW The legal standard for granting duty disability retirement under the Michigan Public School Employees Retirement System is found in MCL ; MSA (197). retirement allowance. The issue in this case is whether Petitioner qualifies for a duty disability

3 Page 3 FINDINGS OF FACT The undersigned Administrative Law Judge finds the following facts: Application and Denial 1. On August 2, 1999, Petitioner applied for a duty disability retirement allowance. Petitioner submitted the required forms and documentation, and on September 29, 1999, attended a medical examination by Independent Medical Examiner Twaide Willis, D.O. 2. Dr. Willis, in her September 29, 1999, report determined Petitioner was able to return to work with temporary work restrictions. On October 25, 1999, Respondent wrote Petitioner and requested he contact his employer and request those work restrictions. 3. Petitioner did contact his employer, and he was given work with some restrictions. However, after attempts, Petitioner indicated he was unable to perform the work. 4. On January 4, 2000, Respondent wrote Petitioner and indicated that because he did not return to work his application was denied, but offered to review additional documentation. 5. On January 14, 2000, Petitioner wrote Respondent providing an explanation of his attempts to work and enclosing additional medical evidence. 6. Respondent referred the additional medical evidence to Dr. Willis. On February 9, 2000, Dr. Willis recommended an independent medical examination by a specialist in orthopedic surgery or sports medicine. 7. At Respondent s request, Petitioner attended a medical examination by William Gonte, M.D., Diplomat American Board of Internal Medicine. 8. Dr. Gonte, in his March 22, 2000, report determined that Petitioner was totally and permanently disabled for returning to his usual job duties, but that the disability was

4 Page 4 not related to his employment or a work injury in April On April 13, 2000, Respondent wrote Petitioner and indicated his application was denied, but he could appeal. Petitioner did request a hearing. Age, Education, and Prior Work 10. Petitioner was born May 31, He has a high school education. He is married with adult children. 11. Petitioner worked from 1968 through 1989 for McCord Gasket as a supervisor. He worked from November 1989 through January 1991 for McLouth Steel as a supervisor. School Employment 12. Petitioner began work as a substitute custodian for the Lincoln Park Public School System in He was hired full time in September His job duties were to do general custodial work including moving furniture, mopping, vacuuming, and waxing floors, cleaning classrooms, bathrooms, and hallways, and shoveling snow in the winter. 13. About 1997 Petitioner was made an assistant engineer for the Lincoln Park Public School System. His job duties were the same as a custodian, but also included doing minor repairs, taking care of afternoon activities at the school, and a few other things. Job Injury 14. On April 14, 1999, at approximately 10:00 p.m. Petitioner was working alone in the school gym setting up tables for a breakfast to be held there the next morning. The tables were about 15 feet long, folded, and heavy. Petitioner was unfolding one table, and the table fell down and took him with it. The Petitioner felt pain in his lower back and right leg. Most of his duties were already done for the day, and he finished his

5 Page 5 shift which ended at 11:00 p.m. The next day, April 15, 1999, Petitioner filed a written report of the injury with the school system. Attempts to Work 15. Petitioner continued working from April 15, 1999, through July 21, He was placed on restricted duty. However, his condition deteriorated, and the last week he did very little work. September 21, Petitioner did not work from about July 21, 1999, through about 17. Between September 21, 1999, and January 25, 2000, Petitioner several times attempted to work. The school offered him positions with restricted duties, he worked in the positions after some initial reluctance, but was unable to perform them, and he obtained statements from Dr. Athens that he was unable to do the work. 18. In October 2000 Petitioner met with school officials about another position with restricted duties, but as of hearing he was waiting for the school to call back. August 2, Worker s Compensation 19. Petitioner began receiving weekly worker s compensation benefits on 20. Petitioner continued to receive worker s compensation benefits until late September 1999 when they were terminated because of a claim that Petitioner had refused work he was able to do. The subsequent status of his worker s compensation benefits is unclear on record. Medical Evidence on Back Condition 21. Prior to April 14, 1999, Petitioner had no traumatic injury to his back, suffered no discomfort in his back, and was not diagnosed with any back impairment. 22. On April 15, 1999, and subsequent dates in April 1999 Petitioner

6 Page 6 received treatment for his back injury from Concentra, a medical clinic associated with Petitioner s employer. Concentra s medical reports for this time period are not on record. Concentra recommended physical therapy and use of a back brace. Petitioner complied with these recommendations, but did not find them helpful. 23. On April 20, 1999, Petitioner was first treated by William A. Athens, Jr., D.O., an orthopedic specialist. Dr. Athens diagnosed low back strain and degenerative disk disease at L4-5, L5-S1. Petitioner s symptoms were pain in the lower back radiating to the right leg. Physical examination showed decreased range of motion in the back. Dr. Athens prescribed anti-inflammatory medications and his prognosis was improvement with conservative treatment. 24. Petitioner was again treated by Dr. Athens on May 11, The diagnosis was unchanged. The symptoms were slightly improved, and the physical examination showed slight improvement in range of motion. However, to rule out radicular or nerve root impingement, Dr. Athens ordered a CT scan. 25. A CT scan was performed on Petitioner on May 17, There was evidence of degenerative spurring. There was equivocal bulging in the intervertebral disks at L3-4 and L4-5, with no evidence of nerve root impingement. There was bulging and protrusion of the intervertebral disk at L5-S1, with possible nerve root impingement. An MRI was recommended. 26. Petitioner was treated by Dr. Athens on July 13, The diagnosis was degenerative disk disease at L4-5 and L5-S1. Petitioner had received three epidural steroid injections which only temporarily reduced the pain. Dr. Athens prescribed Motrin 800 for Petitioner and discussed the possibility of surgery. 27. On August 17, 1999, Dr. Athens prepared a Personal Physician s

7 Page 7 Statement. Again he diagnosed degenerative disk disease at L4-5 and L5-S1. He determined Petitioner s condition was permanent. He listed a number of restrictions on Petitioner s activities during an eight-hour work day including the following: a. lifting and carrying up to 10 pounds frequently, up to 20 pounds occasionally, and over 20 pounds never; b. total sitting during a day, three hours; total standing during a day one hour; and total walking during a day one hour. 28. Petitioner was treated by Dr. Athens again on September 21, They discussed Petitioner s work assignment, and Dr. Athens determined Petitioner could only tolerate light work. 29. On or about September 29, 1999, Petitioner was examined by the Department s medical advisor, Twaide Willis, D.O., General Practitioner. Dr. Willis examined several medical records, but did not have the CT scan report available. Dr. Willis diagnosed degenerative joint disease at L4-5 and L5-S1 and low back pain. On physical examination Dr. Willis found some limitations in range of motion, palpated no tenderness (although Petitioner complained of pain), and found no symptoms of spinal nerve involvement. Dr. Willis determined that the disease was chronic and irreversible. However, Dr. Willis recommended Petitioner return to work with a work hardening program and four-week temporary restrictions. The temporary restrictions were to avoid sustained and repetitive lifting, pushing, pulling, and twisting and not to lift greater than 30 pounds. Petitioner unsuccessfully attempted to return to work. On November 16, 1999, he could not stand at work and was taken by ambulance to the hospital where he was treated with two shots of Demerol and a muscle relaxer and released. 31. Petitioner was treated by Dr. Athens on October 25, The diagnosis was unchanged from September 21, His condition was unchanged, and Dr. Athens made no further recommendation for treatment.

8 Page Petitioner was treated by Dr. Athens on November 23, The diagnosis was unchanged. Physical examination showed decreased lumbar range of motion with pain. Dr. Athens recommended an MRI test. 33. On December 14, 1999, an MRI was performed on Petitioner. There was a central disk protrusion at L5-S1, without spinal canal or neural foraminal stenosis. The rest of the interdiscal spaces were unremarkable. 34. Petitioner was treated by Dr. Athens on December 28, The diagnosis was degenerative disk disease at L5-S1 and osteoarthritis. Petitioner indicated he had good and bad days and was unable to tolerate his work. Physical examination showed no evidence of neurologic involvement. Dr. Athens recommended Petitioner continue his conservative treatment. 35. Petitioner was treated by Dr. Athens on February 8, 2000, the last examination by Dr. Athens prior to this hearing. Dr. Athens diagnosed degenerative disk disease at L5-S1. The physical examination was unchanged, although Dr. Athens noticed some tenderness in Petitioner s mid-back. 36. On or about March 22, 2000, Petitioner was examined by William S. Gonte, M.D., Orthopedic Specialist and Independent Medical Examiner. Dr. Gonte diagnosed disk protrusion at L5-S1 and degenerative joint disease. In the physical examination Dr. Gonte found complaints of pain with certain back motions, but noted no spasms and concluded there was no lumbar radiculopathy. Dr. Gonte concluded Petitioner was totally and permanently disabled for his usual job, but that his disability was not related to the April 1999 incident at work. 37. As of hearing Petitioner was also using a cane to assist in walking, taking various pain medications (Darvocet, Tylenol #3, and Vicodin), using an ice pack and a heating pad, and doing back exercises occasionally. None of these provided much

9 Page 9 relief. He only contacted Dr. Athens for prescription refills since Dr. Athens had no further recommendations on treatment. 38. As of hearing Petitioner s back hurt most of the time, and was easily aggravated by activities or prolonged sitting when pain shot down his right leg. He slept poorly at night. He had given up his hobbies of golfing, fishing, and playing baseball and was unable to drive a car more than a few miles. However, he was able to basically care for himself. employment. Disability 39. Petitioner is totally and permanently disabled from any gainful 40. Petitioner s disability is by reason of personal injury or physical illness while serving as an employee of the Lincoln Park Public School System. Surgery 41. On July 13, 1999, Dr. Athens offered Petitioner the option to undergo anterior interbody fusion of L4-L5 and L5-S1 surgery. Dr. Athens did not guarantee that Petitioner would be able to go back to work even after the surgery, but thought the surgery would allow Petitioner to get along without pain in terms of his activities of daily living. Petitioner declined the surgery. 42. On October 25, 1999, and November 23, 1999, Dr. Athens also discussed the surgery with Petitioner, and Petitioner declined. 43. As of hearing Petitioner also declined to have the surgery. He predicted that some day he would consent to the surgery because his pain would be so great he would have no choice. 44. Petitioner has great apprehension about the surgery because of

10 Page 10 perceived risks involved. After speaking with Dr. Athens, he believes the surgery involves making an incision through his stomach, moving his stomach and intestines aside, replacing two vertebrae with plastic, and fusing other vertebrae. He has heard adverse stories from acquaintances. CONCLUSIONS OF LAW A. Eligibility for Duty Disability Retirement Allowance The elements of eligibility for a duty disability retirement allowance under the Michigan Public School Employees Retirement System are found at MCL ; MSA (197). They may be summarized as follows: 1. The applicant must be a member as defined in MCL which means a public school employee subject to exceptions (a-k) 2. The applicant is totally and permanently disabled from any gainful employment. The phrase any gainful employment means the performance of duties for the member s position for which the member is qualified by reason of training and/or experience (for duty disability the qualified by reason of training and/or experience language refers only to the member s position and not to similar positions). 3. The disability is by reason of personal injury or mental or physical illness while serving as an employee of a reporting unit. 4. The member is not eligible for a regular retirement under Section 81 (a) or (b). 5. The member is receiving worker s compensation due to employment by a reporting unit. 6. A written application is made within 12 months after terminating. 7. The member submits to a medical examination by one or more

11 Page 11 physicians designated by the board who certified the member is totally and permanently disabled. B. Elements 1, 4, 5, 6, and 7 While the evidence is not fully developed on this issues, Respondent does not deny that Petitioner essentially meets elements 1, 4, 5, 6, and 7. C. Element 2 It is undisputed that (except for the question of whether Petitioner should undergo surgery) Petitioner is totally and permanently disabled from any gainful employment, and therefore meets element 2. See the March 22, 2000, report of Dr. Gonte, Respondent s Exhibit A, page 4.5. The issue of surgery is dealt with below. D. Element 3 The weight of evidence in this case indicates that the April 14, 1999, workrelated personal injury or illness aggravated a pre-existing condition which caused the disability. Petitioner had the pre-existing conditions of degenerative disk disease and osteoarthritis. These are related to aging and could not be expected to begin suddenly with an injury as Dr. Willis indicated, Respondent s Exhibit A, page Thus, I agree with Dr. Gonte s conclusion that the disability is not solely related to the April 14, 1999, incident, Respondent s Exhibit A, page 4.5. However, prior to the April 14, 1999, incident, there is no evidence that Petitioner had a central disk protrusion at L5-S1. Before April 14, 1999, Petitioner was asymptomatic and able to perform his work. Thus, the April 14, 1999, incident aggravated a pre-existing condition which caused the disability. Dr. Athens indicated that April 14, 1999, was the date of onset of the illness or injury, Respondent s Exhibit A, page Respondent argues that to be eligible an applicant s disability must stem solely from the work-related personal injury or illness and may not result from a work-

12 Page 12 related personal injury or illness which aggravates or triggers a pre-existing condition. Respondent has cited the case of Buttleman v SERS, 178 Mich App 688; 444 NW 2 nd 538 (1989), lv. den. 433 Mich 912 (1989). However, I hold that an applicant may be eligible if the disability results from a work-related personal injury or illness which aggravates or triggers a pre-existing condition. Buttleman concerns the State Employees Retirement System not the Michigan Public School Employees Retirement System. The relevant statute here, MCL , only requires that the applicant be disabled by reason of a personal injury or illness while serving as an employee. An applicant is just as disabled whether a work-related injury or illness solely causes the disability or aggravates or triggers a pre-existing condition which causes the disability. The Michigan Public School Employees Retirement System statute does not have the natural and proximate result language found in the State Employees Retirement System statute (MCL 38.21; MSA 3.981(21)). I also note that Respondent has the burden of proof on this issue and has not carried that burden, 1985 AACS, R (3). Therefore, Petitioner meets element 3. E. Surgery Respondent claimed that Petitioner had not established permanency because he had not mitigated his damages by accepting surgery offered by his treating physician, Dr. Athens. In support of this position, Respondent cited Kolbas v Boston Mining Company, 275 Mich 616, 267 NW 751 (1936). Kolbas concerned worker s compensation benefits and the court held that an injured employee was under the obligation to submit to proper medical and surgical treatment including operations not

13 Page 13 attended with danger to life or health or extraordinary suffering (specifically amputation of damaged ends of finger bones) if they offered reasonable prospect of relieving the incapacity. I disagree with Respondent for two reasons. First, Kolbas does not involve retirement disability benefits and is not binding in this area. Respondent cited no legal authority for imposing a duty to mitigate by accepting medical treatment. Second, even if I assume such a duty exists, Respondent has not established that Petitioner violated his duty. Respondent has not shown that the surgery offers a reasonable prospect of relieving the incapacity. Petitioner s doctor indicated there was no guarantee that Petitioner would be able to go back to work even after the surgery (Petitioner s Exhibit 1, July 13, 1999, Report), and Respondent has offered no evidence that Petitioner would be able to return to work. Neither medical examiner (Dr. Willis or Dr. Gonte) commented on this issue. Also, Respondent has not established that the surgery is not attended with danger to life or health or extraordinary suffering. Petitioner believes it is after speaking with his doctor and others. The surgery involves considerable work near the spinal cord itself. Respondent has offered no evidence on this issue. Neither medical examiner commented on it. PROPOSED DECISION Based on the above Findings of Fact and Conclusions of Law the undersigned Administrative Law Judge recommends the following decision: Petitioner does qualify for a duty disability retirement allowance under the Michigan Public School Employees Retirement System. EXCEPTIONS

14 Page 14 Either party may file exceptions to this Proposal for Decision within 20 days after the Proposal for Decision is issued and entered. An opposing party may file a response within 10 days after exceptions are filed. Exceptions shall be filed at the following address: Department of Management and Budget, Office of Retirement Services, 7150 Harris Drive, 3 rd Floor, P.O. Box 30171, Lansing, Michigan, 48909, Attention: Janet Darling. C. David Jones Administrative Law Judge