Palombo v. Employees' Ret. Sys. of R.I., C. A. PC-2021-02807

CourtSuperior Court of Rhode Island
Writing for the CourtMCHUGH, MAGISTRATE J.
Docket NumberC. A. PC-2021-02807
Decision Date18 August 2022



C. A. No. PC-2021-02807

Superior Court of Rhode Island, Providence

August 18, 2022

Providence County Superior Court

For Plaintiff: Harry J. Hoopis, Esq.

For Defendant: Michael P. Robinson, Esq. Larissa B DeLisi, Esq.



Appellant Joseph Palombo (Appellant) appeals from the decision of the Employees' Retirement System of Rhode Island (ERSRI or Board), wherein the Board affirmed the 01/08/2021 reconsideration decision of the Disability Subcommittee (Subcommittee). In that decision, the subcommittee determined that Appellant should be denied Appellant's request for an accidental pension. This was a reconsideration of a July 8, 2020 ERSRI decision to grant Appellant's request for an ordinary pension but deny his request for an accidental pension. This case is now before this Court for a final review of the Board's decision. Jurisdiction is pursuant to G.L. 1956 § 42-35-15.

I Facts and Travel

At the time of Appellant's application to ERSRI, he was a 57-year-old State Building and Grounds Coordinator employed by Rhode Island College. (Recons. Decision at 1.) Appellant filed his initial Disability Retirement Application on April 22, 2019, claiming that on November 6, 2018, he sustained nerve damage to the right hand and "arm-partial loss of use-left hand and right."


Id. Additionally, Appellant submitted a Rhode Island College Incident Injury Form which was dated November 7, 2018, indicating that he was disabled due to carpal tunnel syndrome. Id.

Linked to his application was an Applicant's Physician's Statement for Accidental Disability form which was completed by Appellant's doctor, Eric Walsh, M.D. Id. Dr. Walsh concluded that Appellant had a work-related disability, and that Appellant's work involved repetitive gripping and grasping on vibrating tools. Id. at 1-2.

Appellant obtained an initial consultation from Dr. Gregory Austin after being recommended to him by his primary care physician. (Hr'g Tr. 7, Jan. 8, 2021 (Tr.).) Medical records from Dr. Austin dated June 12, 2018 include complaints of bilateral hand pain. Id. Dr. Austin indicated that the Appellant didn't describe any known injury, but instead had many minor injuries to his hands. (Recons. Decision at 2.) Appellant was examined by Dr. Lee who provided a second opinion after obtaining an initial diagnosis from Dr. Austin. (Tr. at 8.) Appellant booked an appointment with the doctor after finding him online. Id. Medical records from Dr. Lee in September 2018 referenced a sprain to Appellant's left thumb, but there was no further description given. (Recons. Decision at 2.) In Dr. Lee's initial report from June 20, 2018, he indicated that there was no injury to the left thumb, and instead diagnosed the Appellant with unilateral primary osteoarthritis of the first carpometacarpal joint of his left hand. Id. On July 13, 2018, Dr. Lee further concluded that the left thumb injury was likely chronic. Id.

In May 2020, Appellant was evaluated by Thomas F. Morgan, M.D., Carl C. DiRobbio, M.D., and John Golberg, M.D. These three doctors were engaged by ERSRI as independent examiners in Appellant's case pursuant to G.L. 1956 § 36-10-14(c). Dr. Morgan examined Appellant on May 21, 2020 and determined that the Appellant had "bilateral weakness of both hands secondary to osteoarthritis and degenerative changes to the thumb carpal metacarpal joints


with joint replacements." Id. Dr. Morgan concluded that Appellant's disabling condition was caused by his age and genetic predisposition for underlying osteoarthritis to his hands. Id.

Dr. DiRobbio examined the Appellant on May 14, 2020 and determined that Appellant was no longer able to do his job, finding that Appellant had "degenerative arthritis and subluxation of the MCP joints of both thumbs, right carpal tunnel syndrome, right ulnar neuropathy at the elbow, and degenerative arthritis of the CMC joint and 1P joints of both thumbs." Id. Dr. DiRobbio further concluded that Appellant's work over a period of time led to the development of arthritis which caused significant pain when Appellant attempted to use his hands.

Dr. Golberg examined Appellant on May 18, 2020 and found that Appellant was disabled from the duties of his job due to multiple work-related injuries and repetitive strain to his hands in the performance of his work-related duties. Id. at 3.

On July 2, 2020, the Disability Subcommittee recommended denial of Appellant's application for an accidental disability pension, and approval of Appellant's application for an ordinary disability pension. Id. ERSRI accepted the Subcommittee's recommendation to approve Appellant's ordinary disability pension on July 8, 2020. Id. ERSRI accepted the Subcommittee's recommendation to deny Appellant's accidental disability pension on September 16, 2020. Id. On October 27, 2020, Appellant requested a reconsideration hearing on the Subcommittee's decision to recommend denial of an accidental disability pension. Id. This was granted, and a recorded reconsideration hearing was conducted on January 8, 2021. Id.

At the reconsideration hearing, the Subcommittee recommended denial of Appellant's application for an accident disability pension. Id. at 6. At the hearing, Appellant referenced a specific July 2018 injury to his left hand. Id. at 5. In response, the subcommittee found insufficient evidence in the record to corroborate his testimony. Id. at 6. The Subcommittee weighed


Appellant's testimony about the alleged July 2018 incident as well as opinions of the various medical experts and determined that Appellant's condition is "more likely the result of age and length of service, than the natural and proximate result of an accident." Id.

II Standard of Review

Pursuant to § 42-35-15, "[a]ny person . . . who has exhausted all administrative remedies available to him or her within [an] agency, and who is aggrieved by a final order in a contested case is entitled to judicial review" by the Superior Court. Section 42-35-15(a). The Court:

"may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if

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