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D'Amato v. Costine

Superior Court of Massachusetts, Middlesex

August 23, 2016

Shawn D'Amato
v.
Sharon Costine [1] et al. [2] No. 134750

         Filed August 25, 2016

          MEMORANDUM AND ORDER ON CROSS MOTIONS FOR JUDGMENT ON THE PLEADINGS

          Peter B. Krupp, Justice of the Superior Court.

         Plaintiff Shawn D'Amato (" D'Amato"), a Massachusetts State Police officer for more than two decades, seeks review under G.L.c. 249, § 4, of a decision by the Massachusetts Department of State Police Rating Board (the " Board"), which denied him disability retirement under the so-called " Heart Bill, " G.L.c. 32, § 94.

          Under G.L.c. 32, § 26, a State Police officer is entitled to disability benefits if the officer is likely permanently disabled due to either an " illness incurred through no fault of his own in the actual performance of duty, " or " an injury . . . during the performance and within the scope of his duty and without contributory negligence on his part." (Emphasis added.) The Heart Bill, G.L.c. 32, § 94, creates a gloss on this statute when the disability is " caused by hypertension or heart disease." Specifically, the Heart Bill creates a rebuttable presumption that the officer's cardiac condition was " suffered in the line of duty, unless the contrary be shown by competent evidence, " provided that the officer " successfully passed a physical examination on entry into such service, or subsequently successfully passed a physical examination, which examination failed to reveal any evidence of such condition." Id. In this case, the Board found the Heart Bill's presumption rebutted because " competent evidence . . . shows that [D'Amato's] cardiac condition is, by a preponderance of the evidence, due to excessive use or abuse of alcohol" based on a finding that D'Amato had " a history of long-term alcohol use/abuse."

         The case is before me on cross motions for judgment on the pleadings. D'Amato seeks review of the Board's finding that the Heart Bill's presumption was rebutted, challenging both the factual finding that he had a " history of long-term alcohol use/abuse" and the conclusion that his cardiomyopathy was " due to" his alcohol use.

         For the reasons that follow, plaintiff's motion is ALLOWED, defendants' motion is DENIED, and the court reverses the Board's decision.

         BACKGROUND

         Because the Board found D'Amato's alcohol use to be the cause of his cardiac condition, I set out the facts from the administrative record bearing on the Board's finding, with a particular focus on alcohol use.

         When D'Amato entered the Massachusetts State Police Training Academy in 1994, he had no history of cardiovascular disease. On February 2, 2001, while attempting to arrest a suspect, the suspect fired " a Tazer-type stun gun" against the left side of D'Amato's chest. After reporting that his heart was racing, D'Amato was brought to Emerson Hospital. He was admitted with an elevated heart rate and an electrocardiogram (" ECG") that showed sinus tachycardia and nonspecific T-wave changes. D'Amato was discharged the next day. A medical provider at Emerson Hospital noted " no evidence for arrhythmia presently or cardiac damage." [3]

         On February 6, 2001, D'Amato was seen by Massachusetts General Hospital (" MGH") cardiologist Richard Liberthson, M.D., who ordered a 24-hour Holter monitor and an echocardiogram. The Holter monitor results were normal and an echocardiogram on February 26, 2001 showed a slightly dilated left atrium and hypokinesis (diminished heart motion) of the inferior heart including the inferior septum. D'Amato's left ventricular ejection fraction (" LVEF") was normal at 59%. In March 2001, D'Amato underwent another echocardiogram, which was normal and showed no wall motion abnormalities as had been previously seen. Another 24-hour Holter monitor in April 2001 was normal and a nuclear exercise stress test in May 2001 was negative for ischemia, infarction, or any other abnormalities. State Police Surgeon Brian Morris, M.D., MPH, examined D'Amato on May 15, 2001. At that time, an ECG was normal, D'Amato was asymptomatic, and Dr. Morris cleared D'Amato to return to full duty.

         Every other year from 2003 to 2013, D'Amato was seen for a Retention Examination. These exams were unremarkable other than for borderline hypertension, elevated cholesterol, and elevated triglycerides.

         On November 25, 2013, while off-duty, D'Amato crashed his personal vehicle into a parked Massachusetts State Police cruiser at approximately 50-60 miles per hour while intoxicated. D'Amato was found sitting outside the car when EMS arrived. EMS reported that D'Amato endorsed the use of cocaine, but D'Amato denied this at MGH and a subsequent urine screen for cocaine was negative. D'Amato admitted to the use of alcohol. At MGH, D'Amato's blood alcohol level was measured at 0.34, more than four times the legal limit of 0.08. According to the social history documented at MGH, D'Amato " endorse[d] social drinking, moderate intake R 5 days/week with occasional binge drinking." The MGH records indicate that D'Amato was " unable to be discharged due to persistent tachycardia thought to be related to ETOH w/d [alcohol withdrawal]" and was admitted to the hospital for treatment of alcohol withdrawal. During his admission, D'Amato's LVEF was 46%. The MGH records explain that the " [l]ikely etiology" of this LVEF result " is a prior cardiac event, no evidence of Qwaves on EKG, could have been an undiagnosed MI [heart attack] v. from previous stun gun injury in 2001. Also, Mr. Damato did endorse over-the-counter use of ephedra which could be driving cardiac injury. Unlikely alcoholic cardiomyopathy given localized injury ." (Emphasis added.)

         D'Amato was discharged from MGH on November 27, 2013. The MGH discharge instructions explain his hospital course and recommend follow up as follows:

You were hospitalized for evaluation of tachycardia (elevated heart rate). There was concern for possible alcohol withdrawal so you were treated with benzodiazepines to prevent complications related to withdrawal. We do not feel that you ever had evidence of withdrawal . It is possible that stress is adding to the cause of the high heart rate. We treated you with IV fluids to treat your dehydration, but the heart rate did not improve dramatically. The ultrasound of your heart showed some dysfunction of your left ventricle, which could be related to a prior event (like a prior unidentified heart attack), your supplement use, or related to your alcohol use (less likely) . . . We strongly encourage you to stop using the oxyElite Pro and the ephedra. Ephedra has been related with cardiac death, especially in a heart that is not functioning to it's [sic] full capacity. Please STOP using these pills . . . We also strongly encourage you to stop drinking alcohol. Alcohol effects the whole system and your health. We would recommend that you consider attending AA meetings if you feel that you need assistance stopping. (Emphasis added.)

         D'Amato was suspended without pay following the November 2013 incident. On July 16, 2014, Russell Vasile, M.D., a psychiatrist, evaluated D'Amato to determine his fitness for duty. D'Amato reported to Dr. Vasile that on the evening of the incident, he had been watching a Patriots football game at home, decided to join friends at a local bar to celebrate the game's outcome, and " [h]is judgment was markedly impaired as he had been drinking heavily that night including at least 5-6 glasses of wine along with several shots of Vodka." D'Amato said " he had been drinking heavily for at least one week leading up to the accident. He stated this was unusual for him. He had been stressed by plans for an impending sale of his home and a purchase of another new home" and related family issues. In his discussion with Dr. Vasile, D'Amato " denied a chronic pattern of alcohol abuse and asserted that the drinking pattern in the week prior to the accident was an aberration for him." Instead, D'Amato " reported that his typical drinking pattern over the years was to drink wine socially, generally 2-3 glasses of wine twice weekly." D'Amato reported that in December 2013 he had attended a 10-day program at the Brattleboro Retreat focused on recovery from alcohol abuse, and was participating in a 16-week court-required 24D program, [4] which required drug and alcohol testing, and was scheduled to complete the program in two months. D'Amato reported " that his last drink was in March 2014 and that he is now committed to full abstinence from alcohol."

         In January 2014, D'Amato underwent additional medical testing at the order of his cardiologist, Alena Goldman, M.D. The testing revealed an enlarged left ventricular chamber with mild hypokinesis and a below normal LVEF of 43%. A cardiac catheterization in February 2014 showed no significant coronary artery disease.

         In the spring of 2014, D'Amato inquired about retirement under the Heart Bill due to his cardiac condition. On July 14, 2014, Dr. Morris examined D'Amato. At that exam, D'Amato provided Dr. Morris with two letters from James Brown, M.D., his primary care physician. The first letter dated April 24, 2014 concluded that D'Amato's cardiac condition began after the stun gun incident and before the November 2013 car crash. The second letter dated June 10, 2014 expressed concern that D'Amato's cardiac condition could lead to congestive heart failure or a dangerous cardiac rhythm and opined that D'Amato was no longer fit for duty.

         On September 9, 2014, D'Amato began a cardiac rehabilitation program at MGH.

         On September 22, 2014, Dr. Morris examined D'Amato again. At that exam, D'Amato provided Dr. Morris with a note from MGH cardiologist Malissa Wood, M.D., in which she opined that D'Amato had " evidence of a cardiomyopathy which has improved but is still greatly affecting [his] exercise tolerance."

         In connection with his request to retire under the Heart Bill, on August 12, 2014, D'Amato was also examined by cardiologist Jerold Weiner, M.D. Dr. Weiner's original report, dated August 12, 2014, contained several significant factual errors (e.g., misstating that D'Amato had excess exposure to cocaine and describing the November 2013 accident as work-related), which he corrected in a revised report on or about November 7, 2014. Dr. Weiner's revised report includes mention of D'Amato's history of " excess exposure to alcohol" but does not link alcohol exposure to D'Amato's heart condition. In his revised report, Dr. Weiner concludes:

My clinical impression is that the claimant may have suffered a stress cardiomyopathy syndrome, possibly from his prior exposure to dietary supplements, which would not be work-related, and thus ...

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