Retirement – Accidental disability – Pre-existing condition

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Where the petitioner, a school cafeteria worker, aggravated her pre-existing back condition to the point of permanent disability while using a large table-mounted can opener, the petitioner has proven by a preponderance of the evidence that she is entitled to accidental disability retirement.

Accordingly, the Fall River Retirement Board denial of her application is reversed.

“Pursuant to G.L.c. 32, §16(4), Petitioner Missy Lima appealed the decision of Respondent Fall River Retirement Board to deny her application for accidental disability retirement. …

“In the instant case, a medical panel consisting of a neurologist and two orthopedists unanimously determined that Ms. Lima met all the requirements for accidental disability retirement. The Retirement Board does not dispute that Ms. Lima is permanently disabled. But, it attributes her disability to her pre-existing back condition and not the workplace incident that occurred while she was opening the industrial-sized can of fruit. Ms. Lima admits that she had a pre-existing back condition but argues that it was aggravated by the November 6 incident to the point of permanent disability. …

“… All of the panelists not only concluded that it is a medical possibility (1%) that the November 6 incident aggravated Ms. Lima’s disability, but they go further by finding a medical probably (51%) that it did. The doctors point out the ‘substantial multilevel degenerative disease’ seen in the imaging that revealed multiple disc protrusions and other degenerative changes. Additionally, the failure of treatment to respond, prolonged limitations, and inability to return to work are all pieces of evidence that the doctors considered in making their determinations. Ms. Lima performed all aspects of her job before the November 6 incident, including opening similar large cans regularly and lifting 50 pounds, and now she is unable to do these tasks. Considering all these factors, the three panelists concluded that the November 6 incident aggravated her pre-existing condition to the point of permanent disability. Even Ms. Lima’s primary care doctor, who has been seeing her for years, concluded that ‘the patient has reached the status of disability’ and that ‘she has really exhausted all conservative measures.’

“The Board is reluctant to credit Ms. Lima’s testimony regarding her pain. …

“Contrary to the Board’s conclusion, the evidence reveals that Ms. Lima was in real pain and that she did everything she could to alleviate the pain so that she could return to work: she attended 3 rounds of physical therapy, went to a chiropractor, went to an acupuncturist, purchased her own [transcutaneous electrical nerve stimulation (TENS)] unit, took medication, did two rounds of steroid injections and inquired about more, and met with a surgeon. Her work history has been consistent since she was 16 years old — she’s hardly a person trying to avoid work. I conclude that Ms. Lima’s inability to remember the details of her medical history and post-incident treatment were more likely influenced by the vast amount of treatment she received. It was not a purposeful misrepresentation. …

“Taking all the medical opinions and other evidence into account, it is my conclusion that Ms. Lima’s pre-existing condition was permanently aggravated by the act of opening and twisting the heavy can on November 6. Her pain and inability to perform as she did before the incident are key factors in the panel’s decision making and support its reasonable and understandable conclusions.

“For the foregoing reasons, the Petitioner has proven by a preponderance of the evidence that she is entitled to accidental disability retirement. The Board’s decision denying her application is therefore reversed.”

Lima v. Fall River Retirement Board (Lawyers Weekly No. 27-149-25) (21 pages) (Forton, Administrative Magistrate) (Division of Administrative Law Appeals) Nicole M. McDonald for the petitioner; Joseph R. Kenyon for the respondent (Docket No. CR-23-0499) (Nov. 28, 2025).

Click here to read the full text of the opinion.