«COMMONWEALTH OF MASSACHUSETTS CIVIL SERVICE COMMISSION SUFFOLK, ss. One Ashburton Place - Room 503 Boston, MA 02108 (617) 727-2293 WILLIAM DUNN ...»
COMMONWEALTH OF MASSACHUSETTS
CIVIL SERVICE COMMISSION
SUFFOLK, ss. One Ashburton Place - Room 503
Boston, MA 02108
v. CASE NO: D1-09-218
CITY OF ATTLEBORO,
Appellant’s Attorney: Leah Marie Barrault, Esq.
Pyle Rome Ehrenberg PC 18 Tremont Street, Suite 500 Boston, MA 02108 Appointing Authority Attorney: Scott E. Bettencourt, Esq.
Bettencourt Law Group, PC 455 Washington Street Duxbury, MA 02332 Commissioner: Paul M. Stein DECISION The Appellant, William Dunn, acting pursuant to G.L.c.31, § 43, duly appealed to the Civil Service Commission (Commission) from a decision of the City of Attleboro (Attleboro), the Appointing Authority, to suspend and subsequently discharge him from his position of Firefighter/EMT in the Attleboro Fire Department (AFD). A full hearing was held by the Commission on September 29, 2009 (at the Commission’s offices and at the offices of Dr. Timothy Foster), on September 30, 2009 (at the University of Massachusetts School of Law at Dartmouth) and on November 16, 2009 (at the offices of Dr. Michael Feldman and at the Attleboro City Hall). The hearing was declared private as no party requested a public hearing. Attleboro called four witnesses and the Appellant called three witnesses and testified on his own behalf. The hearings were digitally recorded, save for the Appellant’s expert, whose testimony was stenographically recorded. Thirty-four (34) exhibits were marked. Post hearing submissions were received by the Commission from each of the parties on February 10, 2010.
FINDINGS OF FACTGiving appropriate weight to the exhibits, to the testimony of the witnesses (the Appellant, Attleboro Fire Chief Ronald Churchill, Attleboro Firefighter Ken Blais, Attleboro Personnel Consultant Janice Silverman, Dr. Timothy Foster, MD, Dr. Michael Feldman, MD, Corey Atwood of Access Investigations, Inc., and Richard Young of Delta Projects) and inferences reasonably drawn from the evidence that I find credible, I make the findings of fact set forth below.
1. The Appellant, William Dunn, held the tenured civil service position of Firefighter/EMT with the AFD for approximately 16 years. At the time of his termination in April 2009 he was 50 years of age. He was a certified EMT Basic, one of 32 AFD personnel qualified to work the “rescue” (ambulance) and provide Emergency Medical Services (EMS). (Exh. 2; Testimony of Appellant & Churchill)
2. AFD Fire Chief Churchill considered Dunn to be a good and dependable employee. His prior disciplinary history consisted of one written reprimand. (Testimony of Appellant & Churchill) The Essential Duties of an AFD Firefighter/EMT
3. AFD firefighters typically work one continuous 24-hour shift, followed by two days off, a second 24-hour shift, followed by 5 days off. (Exhs. 1, 1A; Testimony of Blais)
4. An AFD Firefighter’s duties include responding to emergency medical calls, as well as to “room and contents” and structural fires. Most of the calls (about 90% of the 16 to 17 calls received each day) are for EMS services. Fire calls arise about once or twice a month and usually involve “room and contents” fires (mainly kitchen or bedroom), although there have been major structural fires, including one major commercial building fire recently. (Testimony of Churchill & Blais)
5. According to Chief Churchill, an AFD Firefighter/EMT must be able to perform all of the essential functions of the job, including ability to respond to EMS calls as well as fires. A firefighter will not be sent to an EMS or fire scene to perform in a limited duty capacity, even as part of a team. (Testimony of Churchill)
6. EMS calls involve physical demands for lifting and moving patients weighing 100 pounds and more. In order to perform CPR most effectively, a Firefighter/EMT will kneel on both knees for an extended period of time. A large part of Attleboro’s housing stock is three-decker residential property which requires climbing and descending stairs, and carrying victims, when responding to an EMS call. Dunn estimated he would do this an average of 5 to 6 times per week. EMS responders also are required to be able to crawl through automobile wreckage. (Testimony of Appellant, Churchill & Blais)
7. The physical demands at a fire scene include: moving and lifting of heavy items over 100 pounds (furniture, equipment and/or carrying a “hurt, lost or overcome” firefighter), crawling on both knees through attics, basements or entire buildings for minutes at a time with a 35-40 pound air pack on their backs, “venting” roofs (which requires kneeling on a roof for an extended period while wielding an axe), frequent climbing of stairs (elevators may not be operable when a fire is reported) and dragging a “charged” line (fire hose), which is so heavy it cannot be carried, and climbing on scaffolding (Exh. 19; Testimony of Appellant, Churchill & Blais)
8. Under Article X of the collective bargaining agreement between Attleboro and the Attleboro Firefighters, Local 848, I.A.F.F., effective from July 1, 2005 through June 30, 2008 Firefighter/EMT there was no provision for an injured firefighter to be returned to work in a “light duty” capacity. In the collective bargaining agreement effective July 1, 2008, Article X was revised to provide for “return to duty if capable of performing limited fire fighter duties on either a full time or less than full time basis” which are defined to include; “dispatch, inspections, general clerical work, schooling (non-physical) and such other tasks as may be agreed on by the Chief and the Union”. The evidence does not establish that, at the relevant times involved in this appeal, there were “limited duty” positions Chief Churchill found suitable to be offered to and filled by Dunn, either on a part-time or full-time basis. (Exhs. 1 & 1A; Testimony of Appellant & Churchill) Appellant’s Outside Employment
9. As is typical for AFD personnel, Dunn works a second job. For approximately twenty years, he has owned a company, called “Consider It Dunn”, which provides general maintenance services, including landscaping, plowing, sweeping and carpentry.
Consider It Dunn has provided free maintenance services on occasion for AFD fire stations. (Testimony of Appellant, Blais & Churchill)
10. Consider It Dunn employs approximately 10 personnel. Ken Blais, another Attleboro Firefighter, works as an on-site supervisor for the company. As the company grew in size, Dunn assumed a management and administrative role. By 2007, he had substantially stopped performing any of the manual labor work associated with the business. His physical activities were limited mainly to driving to work sites, and procuring & delivering tools, equipment and materials. A significant part of his businessrelated work was conducted over the telephone. (Testimony of Appellant, Blais & Young) Appellant’s Line of Duty Injuries
11. On May 7, 2007, Dunn responded to an EMS call at a residence in Attleboro.
After performing CPR, Dunn and his partner were in the process of transporting the injured party (an obese man weighing over 300 pounds), when Dunn tripped on an obstacle at the bottom of the stairwell. As a result, he suffered a disabling injury to his left knee. He was seen by Dr. Christopher Quinn of Occupational Health at Sturdy Memorial Hospital in Attleboro, who is also Attleboro’s Commissioner of Public Health.
Dr. Quinn ordered an MRI. Dunn was placed on Line of Duty (LOD) leave. (Exhs. 2 & 7;
Testimony of Appellant)
12. Dunn previously had injured his right knee at work in 2003, for which he was treated surgically by Dr. Timothy Foster, a Board Certified orthopaedic surgeon who specializes in knee and shoulder surgery. Dr. Foster is an active member of the medical staff of four Boston area hospitals. His other professional credentials include appointment as assistant professor of surgery at Boston University School of Medicine, associate editor of the American Journal of Sports Medicine, the medical director of the Boston University Sargent School of Physical Therapy, the Varsity Team Physician for Boston University, and Oral Board Examiner for the American Board of Orthopaedic Surgery.
He has been an author of 18 published journal articles and 74 professional presentations.
I found him particularly deft at translating the complex medical information involved into terms that a non-expert could understand. (Exh. 11; Testimony of Appellant & Dr. Foster)
13. During Dunn’s rehabilitation from right knee surgery, Dunn suffered a meniscus tear to his left knee which required additional surgery, also performed by Dr. Foster.
Dunn eventually recovered from both injuries and, after being cleared by Attleboro’s physician, returned to full duty with the AFD. (Testimony of Appellant & Dr. Foster)
14. On June 14, 2007, Dunn went to see Dr. Foster for evaluation of his re-injured left knee. Dr. Foster’s review of the MRI and physical examination of Dunn suggested a “microscopic fracture of the tibial plateau, which is going to heal.” He also noted “a possible medial meniscal tear” and “if this is a new meniscal tear, he may not get relief of his discomfort.” After consulting Dunn, Dr. Foster chose to “try conservative measures” of treatment. Largely at Dunn’s insistence, Dr. Foster cleared Dunn to return to work, with a brace on his left knee, and to pursue a course of physical therapy. Dunn returned to full duty on June 16, 2007. (Exhs 7 &. 11; Testimony of Appellant & Dr. Foster)
15. At his next visit on September 9, 2007, Dunn “had not had substantial improvement” and “is... close to the point where he may require arthroscopic surgery”.
Dr. Foster decided “to try one more round of physical therapy for strengthening”. At the next follow-up visit on November 15, 2007, Dr. Foster recommended surgery. “We have exhausted conservative measures and the patient continues to have significant discomfort”. (Exhs. 9 & 11; Testimony of Appellant and Dr. Foster)
16. On December 21, 2007, Dr. Foster performed arthroscopic surgery on Dunn’s left knee. During the operation, Dr. Foster confirmed the pre-operative diagnosis of a left knee “medial meniscus tear” and “osteochondral lesion of the femur and tibia”. In lay terms, the meniscus is a piece of cartilage that sits between the two bones in a knee and acts as a cushion, while the articular cartilage is a coating over the bone. (Exhs. 8, 9 & 16; Testimony of Dr. Foster)
17. During the surgical procedure, Dr. Foster discovered that the articular cartilage was “down to the bone” meaning that “there was no cartilage there at all. It had been shaved off.” This condition, in Dr. Foster’s opinion, was the critical problem and required him immediately to elect to perform a “subchondral fracture technique” in which he made small puncture holes to draw stem cells from Dunn’s bone marrow to the site and, eventually, re-populate the area of bare bone with a newly grown cartilage coating.
The procedure has only a 60% to 70% success rate, and (due to the time it takes the new cells to grow), generally requires a year of rehabilitation. The traditional alternative, however, was knee replacement, which, in Dr. Foster’s opinion, could have permanently put Dunn out of work as a firefighter. (Exhs. 8 & 9; Testimony of Dr. Foster)
18. After this (his third) knee surgery, Dunn was followed by Dr. Foster and religiously pursued a course of physical therapy at Houghton Physical Therapy and Sports Conditioning, where he made substantial progress through October 2008. X-rays taken in June 2008 and January 2009 indicated that some cartilage had begun to grow back. (Exhs. 10 thru 14 & 20; Testimony of Appellant, Dr. Foster & Dr. Feldman) The October 21, 2008 IME
19. In July 2008, Attleboro Personnel Consultant Janice Silverman took responsibility for managing Attleboro’s LOD claims. Employed by Attleboro since 2005, she came with extensive experience in administering LOD and workers’ compensation claims for over thirty years. She has no medical training. She has a general understanding of the duties of an AFD firefighter but did not know how frequently they are required to respond to various types of emergencies and was unable to describe in detail the physical requirements of the job. (Testimony of Silverman)
20. As part of a review of all pending LOD files, Ms. Silverman discussed Dunn’s case with Chief Churchill. Based on their mutual concern that the time Dunn had been out on LOD was “excessive” and “too long” and “something seemed wrong”, Ms.
Silverman discussed the matter with Dr. Quinn and contacted Attleboro’s outside claims administrator, Cook & Company. As a result, Cook & Company arranged for Dunn to undergo an “impartial independent medical examination” (IME) with Dr. Michael Feldman, a Board Certified orthopaedic surgeon who practices with Orthopedic Group, Inc., Pawtucket, RI. (Exh. 20; Testimony of Appellant, Dr. Feldman, Silverman)
21. Dr. Feldman holds an appointment as Clinical Assistant Professor of Orthopaedics and Clinical Instructor in Orthopaedic Surgery at Brown University. He also serves as Associate Team Physician at Bryant University and Rhode Island College, and as a member of the Editorial Board and a Reviewer for the Journal of Arthroscopic and Related Surgery. He has authored nine published journal articles and 12 professional presentations. (Exh. 27; Testimony of Dr. Feldman).
22. Prior to seeing Dr. Feldman, Dunn met with a medical assistant who took some historical information. She reviewed a list of “Daily Activities Affected by Chief Complaint” and asked him to indicate which caused “any problems”. Dunn answered negatively to some and affirmatively to others on the list. There was no evidence of follow-up questions to elicit any detail about his responses. The checklist and assistant’s notes are not in the record and the assistant did not testify. There was no mention or inquiry about Dunn’s outside employment activities with Consider It Dunn. (Testimony of Appellant & Dr. Feldman)