Hire a Lawyer for your Mass. Disability Retirement Case

DISABILITY_RETIREMENTIn order to receive Accidental Disability Retirement (ADR) benefits in Massachusetts, an applicant must prove that he or she is permanently incapacitated from performing the essential duties of his or her position because of an injury sustained or hazard undergone while in the performance of his or her duties.

Every Massachusetts Accidental Disability Retirement case requires a certificate from a medical panel comprised of three physicians who must answer “yes” to the questions of disability, permanency, and causation. However, a medical panel certificate which unanimously states that an applicant was permanently disabled in the performance of his or her duties does not guarantee the award of a disability retirement. While the applicant’s retirement board may not generally ignore the medical panel’s findings, the retirement board is entitled to consider both the medical and non-medical evidence when ruling on a disability retirement application.

Having a lawyer represent you in a Massachusetts Accidental Disability Retirement case is important because you must convince the retirement board that you are permanently unable to perform the essential duties of your job by reason of a personal injury sustained or hazard undergone, as a result of, and while in the performance of your duties. This can sometimes be difficult to prove, depending on the facts and circumstances of the individual case.

There is no minimum age or years of service requirement to be eligible to apply for an Accidental Disability Retirement in Massachusetts. Please contact me if you believe that you can no longer perform your duties and you need to file for an accidental disability retirement in Massachusetts.

Reimbursement & Indemnification for Medical Expenses

A Massachusetts police officer or firefighter who receives an accidental disability retirement can be reimbursed for his or her post-retirement reasonable hospital, medical and surgical expenses if the municipality from which the firefighter or police officer retired has accepted G.L. c. 41 § 100B.

In order for a retiree to receive reimbursements pursuant to G.L. c. 41 § 100B, a three member panel must certify that the expenses involved were the natural and proximate result of the disability for which the employee was retired, that the expenses were incurred after acceptance of G.L. c. 41 § 100B by the retiree’s city or town, that the services to which the expenses relate were rendered within six months before the filing of the application, that the expenses were in no way attributable to the use of intoxicating liquor or drug or to his being gainfully employed after his retirement or to any willful act or conduct on his part, and that the expenses are reasonable under all the circumstances.

This benefit is only available to retired police officers and firefighters who satisfy the above-listed five requirements in Massachusetts communities which have voted to accept the provisions of G.L. c. 41 § 100B. Additionally, to receive indemnification for post-retirement medical and related expenses, the retiree seeking reimbursement or indemnification must have received an accidental disability retirement (ADR) and the expenses must be related to the injury or medical condition for which the ADR was granted. This benefit is not available to those receiving only ordinary or superannuation retirements.

The purpose of this law is to provide protection against medical and related expenses which were incurred as a result of an injury sustained in the official performance of a firefighter or police officer’s duty. When covered, these public safety retirees will not have to resort to health insurance coverage or pay out of pocket for reasonable medical and related expenses stained while in service to the public, so long as the above-listed five requirements are met.

In order to determine if an expense qualifies for reimbursement, cities and towns which have accepted G.L. c. 41 § 100B must establish a three-person indemnification panel to determine whether or not a particular expense qualifies. This panel is comprised of the City Solicitor or Town Counsel of the municipality from which the claimant retired, a physician designated by the City or Town, and the Chairperson of the municipal retirement board. Anyone aggrieved by a decision of the panel has the legal right to seek redress in the appropriate Superior Court or the Supreme Judicial Court, as an action in the nature of certiorari, filed pursuant to G.L. c. 249 § 4.

Pre-Existing Conditions

Under the aggravation doctrine, which applies to Accidental Disability Retirement Appeals, in certain circumstances, the aggravation of a pre-existing medical condition into a disability can be compensable under G.L. c. 32 § 7(1) and ADR benefits can rightfully be awarded. Specifically, if the aggravation of a pre-existing condition was caused by a work-related injury and that job-related aggravation was a significant contributing cause to the applicant’s disability, the fact that the applicant had a pre-existing condition will not disqualify him or her from the receipt of an Accidental Disability Retirement.

The question of whether or not an applicant’s pre-existing condition disqualifies him or her from being granted accidental disability retirement benefits is not a legal question. It is a medical question which is to be answered by the PERAC medical panel. The physicians comprising the medical panel should apply their specialized expertise to determine if the applicant was disabled due to the natural progression of the pre-existing condition, which does not satisfy the causation requirement. If the medical panel determines that the work-related injury, accident, or incident was “a significant contributing cause” to the worsening of the pre-existing condition to the point of total disability, the causation element is satisfied.

If the acceleration of a preexisting condition or injury results from an accident or hazard undergone in the performance of the applicant’s duties, causation would be established. However, if the disability is due to the natural progression of the defect or disease, or was not aggravated by the alleged injury sustained or hazard undergone, causation would not be established.

For example, the Contributory Retirement Appeals Board (CRAB) recently ruled that an employee who had a pre-existing back condition was entitled to ADR benefits even though he was able to perform his demanding job with no restrictions prior to September 23, 2009. On that date he engaged in unusually strenuous activity for an unusually long time, in an attempt to carry out his responsibilities to remove flood water from a leak in a housing project basement that had reached a depth of seven inches. For five hours he carried heavy laundry appliances and heavy water buckets up the stairs out of the basement, and carried pumps, hoses, and other equipment back in.

CRAB ruled that the claimant demonstrated that his disability was proximately caused by the above-described work incident, which aggravated his pre-existing degenerative back condition.

The aggravation of his back condition from the intense, heavy labor spanning five hours on the night of September 23 to 24, 2009 qualified as a “personal injury” within the meaning of the retirement law. His back injury was sustained “as a result of, and while in the performance of, his duties at some definite place and at some definite time.” The required causation element was, therefore, satisfied and his pre-existing degenerative back condition did not disqualify him from being awarded an Accidental Disability Retirement.

50% Retirement at 20 years for Correction Officers

The Massachusetts Public Employee Retirement Law provides for a special retirement benefit for certain correctional officers. Specifically, G.L. c. 32 § 28M allows those correctional employees who are in Group 4 and whose primary job duties include the care and custody of prisoners, and any transportation officer working within the Massachusetts Department of Correction (DOC) may retire once the employee has at least 20 years of correctional service. Correction officers who retire under this provision are awarded at least 50% of the employee’s average rate of regular compensation for the 1 year period immediately preceding the effective date of the employee’s retirement.

There is a similar statute which grants qualified employees of Massachusetts Sheriff’s Offices similar benefits. G.L. c. 32 § 28N applies to “any correctional or jail officer” employed by a county sheriff’s office.

To retire under these statutes, the correctional employee must have a minimum of 20 years of credible service as a state or county correction officer. It has been determined that G.L. c. 32M and G.L. c. 32 § 28N are special provisions allowing certain public employees to retire early and, therefore, they should be strictly construed and applied.

Time spent “off the payroll” for unpaid leaves of absences and/or maternity leaves does not count towards the 20 years of credible service requirement. Correction officers who purchase time for other than correctional service, such as “military time” cannot use the purchased time to satisfy the 20 year requirement. Likewise, a correction officer who was terminated and off the payroll for 2 years while his termination was being adjudicated was not allowed to count that 2 year time period toward the 20 year requirement, even when it was eventually determined that he was wrongfully terminated. In order to qualify, the employee must have actually performed “credible service” for the entire 20 year period and even periods for which the employee was out of work due to an injury sustained in the workplace will not count.

A Massachusetts Superior Court Judge has ruled that service as a county correction officer could not be added to creditable service as a state correction officer to satisfy the twenty-year requirement in either G.L. c. 32M and G.L. c. 32 § 28N. In making this ruling, the Superior Court deferred to the Contributory Retirement Appeal Board’s reasoning that the necessary 20 years of service must be performed in either the county or state correctional systems, but not a combination of both. This ruling was based on the clear statutory language of both statutes, which do not allow for the combination of service periods.

In summary, because these statutes provide an “enhanced benefit” to qualified correctional officers, they will be narrowly construed and strictly applied by the State Retirement Board, the Division of Administrative Law Appeals, CRAB, and a reviewing Superior Court.

 

Accidental Disability Retirement Denial Reversed

The State Board of Retirement’s denial of an accidental disability retirement of a state employee was recently reversed on appeal when it was demonstrated that the injured employee was in in the performance of her duties when she was injured. She was in a motor vehicle accident while she was operating a state-owned official vehicle. When the accident occurred, she was traveling from a state-sponsored work to her office where she was going to resume working.

In the case of Burgess v. State Retirement Board, the claimant worked for the Massachusetts Executive Office of Public Safety and Security as the Director of the Office of Grants and Research of the Highway Safety Division. She swerved to avoid an accident, drove off the road, and crashed into a boulder. She suffered a traumatic brain injury in the crash and tore her right rotator cuff. She has had two surgeries since then to repair her rotator cuff. She received workers’ compensation.

The Massachusetts State Retirement Board refused to grant a regional medical panel because it determined that the claimant failed to establish that she was injured “as a result of and while in the performance of her duties,” as the retirement law requires. This case illustrates the difficulties often encounter by those seeking disability retirement benefits. Public employees who are injured at their place of employment, but not while performing any work obligation at the time of the injury, or those who are injured while traveling to work or leaving their place of employment after completing their work for the day, are not eligible for accidental disability retirement. Employees hurt while at lunch or while traveling home have been routinely denied benefits.

In this case, in reversing the denial, the Massachusetts Division of Administrative Law Appeals correctly noted that “An employee permanently injured while transitioning from one task to another may be eligible for accidental disability retirement so long as the task the employee is leaving and the task the employee is about to undertake are both employment obligations.” The Administrative Magistrate determined that the Claimant was driving between a work obligation at Fort Devens and a work obligation at her office. Therefore, she was in the performance of her duties when she sustained disabling injuries in the automobile accident.

The Smoking Prohibition

In Town of Plymouth v. Civil Service Commission, 426 Mass. 1 (1997), the Massachusetts Supreme Judicial Court held that a police officer hired after January 1, 1988 who smokes tobacco products shall be subject to mandatory termination. For positions subject to G.L. c. 31 the smoking prohibition includes any appointment whether provisional, temporary or permanent, full-time, part-time, intermittent or reserve, to a covered position from an eligible list established as the result of a civil service examination administered after January 1, 1988.

The Supreme Judicial Court ruled that based on the language used in G.L. c. 41, § 101A and the promulgated rules of the Personnel Administrator, termination was mandatory.

The purpose of the smoking prohibition is to prevent Massachusetts police officers and fire fighters from increasing their risk of hypertension and heart disease by smoking and, therefore, their eligibility for disability retirement benefits under G.L. C. 32, § 94. The prohibition does not apply to all civil service employees, but only to police officers and fire fighters who, because of the nature of their jobs, are already at high risk for developing hypertension and heart disease.

The Legislature appears to have made a policy decision, based on financial interests, that employment in these positions should no longer be open, after January 1, 1988, to persons who smoke tobacco products so that, over a period of time, police and fire departments will have a workforce free of a serious disease-causing addiction. It is common knowledge that tobacco smoking has been identified as a contributing risk factor in both of these conditions, and heart disease is a leading cause of disability retirement among public safety personnel. The Legislature apparently enacted C. 41 § 101A in an effort to reduce the number of police officers and fire fighters who obtain substantial disability benefits from public funds under G.L. c. 32, § 94, also known as the “Heart Law,” as a result of heart disease due to smoking.

Regional Medical Panel Examinations

In order to receive accidental disability benefits in Massachusetts, an applicant must establish by substantial  evidence, including an affirmative medical panel certificate, that he or she is totally and permanently incapacitated from performing all of his duties as a result of an injury sustained or hazard undergone while in the performance of his duties. The regional medical panel’s function is to answer medical questions which are beyond the common knowledge and experience of retirement board members. The medical panel plays two important roles in the accidental disability retirement application screening process. First, it acts as a gatekeeper. Second, it provides medical expertise.

Unless the panel applies an erroneous standard or fails to follow proper procedures, or unless the certificate is “plainly wrong”, the local board may not ignore the panel’s medical findings.

A medical panel consists of three (3) physicians who examine the applicant either jointly or separately. The members of the medical panel will also review medical records and information including imaging studies such as MRIs and X-rays.  It is impossible to get an accidental disability retirement in Massachusetts unless a majority of a three-member regional medical panel examines the pertinent medical facts and certifies that all of the conditions and requirements for accidental disability retirement are met.

In order to overturn an adverse decision made by a regional medical panel , the applicant must prove that the three-physician medical panel lacked pertinent medical facts or applied an erroneous standard in its conclusion. The panel doctors are not obligated to agree with opinions of other physicians and a conflict between the opinion of a regional medical panel and other physicians does not mean that the panel applied an erroneous standard.

In some cases, if the information provided by the medical panel does not provide sufficient information to the retirement board, the board has the option to submit a request for clarification to the panel. In such a situation the panel physicians will have an opportunity to further explain their opinions and conclusions by answering the board’s questions.

In situations where a two out of the three members of a properly constituted regional medical panel issue a negative certification, the application for accidental disability retirement benefits must be denied. Unless it can be shown that the panel lacked significant information or applied an incorrect standard, a retirement board cannot grant an accidental disability retirement. If the medical certification is proper, a board may not substitute its judgment for the opinion of the majority members of the panel, even if other doctors have issued contrary opinions.

ADR applicants in Massachusetts who are represented by lawyers have the legal right to have the applicant’s attorney attend the medical panel examination.

ADR Denied due to Distracted Driving

The Massachusetts Contributory Retirement Appeals Board recently upheld the denial of an Accidental Disability Retirement Application filed by a mechanic and heavy equipment operator for the Spencer Highway Department because the applicant distracted by his use of a cell phone while driving. The Worcester Regional Retirement Board (WRRB) determined that the applicant’s injuries resulted from a motor vehicle accident which was caused by his improper cell phone use. He was operating a Chevrolet Silverado pickup truck southbound on Route 31 in Spencer, Massachusetts when he rear-ended a school bus which was stopped with its red lights flashing.

The Retirement Board denied the Accidental Disability Retirement because it found that the employee’s injuries were the result of “serious and willful misconduct,” as set forth in G.L. c. 32, § 7(1). The misconduct consisted of him spending more than ten seconds attending to his cell phone while driving a heavy pickup truck and rear-ending a school bus, which was stopped in front of him and was displaying its flashing red lights.

According to the accident reconstruction report, during a period of 10.45 seconds, the employee did nothing to avoid hitting the school bus. He did not use his brakes or attempt to swerve out of the way. The pickup truck simply continued to travel at 44 miles per hour until it crashed into the rear of the school bus at that speed, pushing the bus forward 16.1 feet.

The disability retirement claimant appealed the Retirement Board’s decision to the Division of Administrative Law Appeals (DALA) and that agency upheld the Worcester Regional Retirement Board’s denial. The DALA Magistrate ruled that the claimant engaged in “serious and willful misconduct” when, while driving a three-ton truck at over 40 miles per hour, he spent at least ten seconds focusing his attention on his cell phone, to the point where he did not notice a full-sized yellow school bus stopped directly in front of him, with its blinking red lights activated, and simply drove at full speed into the rear of the bus.

The claimant appealed further to the Massachusetts Contributory Retirement Appeals Board and the Board agreed that he committed “serious and willful misconduct” such that denial of his ADR application was proper. The CRAB ruled that the claimant he has not established that his injuries resulted from his work duties. Instead, the injuries resulted from distracted driving which constituted “serious and willful misconduct” and the denial of his application was lawful.

No Accidental Disability Retirement for Horseplay

Joseph Indrisano was an operations and maintenance supervisor in the Worcester Trial Courthouse. While engaged in horseplay with his friends, he sustained a disabling injury. It was determined that the injury was not sustained in the performance of his duties, so his Accidental Disability Retirement claim was denied.

Specifically, one of Mr. Indrisano’s co-workers stood aggressively like a bear. He hunched his shoulders as if to stand his ground or to attack. He held his arms in front of him, as a weight-lifter showing off his muscles would. This caused another co-worker to back away from him.  This employee who was in this bear-like posture walked playfully towards Mr. Indrisano, who lost his balance and fell. The next day he reported the injuries which he sustained in the fall when he landed hard on his back.

In the case of Damiano v. Contributory Retirement Appeal Board, 72 Mass. App. Ct. 259 (2008), the Massachusetts Appeals Court has ruled that an employee who is injured by a fellow employee’s goofing off at work is not entitled to accidental disability retirement benefits. The goofing off can include horseplay, behavior that might turn into horseplay, as here, and other behavior.

The Magistrate ruled that physical contact between two employees is not required to uphold a denial. If hypothetically in Damiano, Police Dispatcher Teresa Damiano had successfully fled the police officer’s attempt to put her into a headlock, and the police officer never touched her, but Ms. Damiano tripped while fleeing and injured her wrist and elbow, the Appeals Court’s decision would almost certainly have been the same.

To qualify for accidental disability retirement, an applicant must prove total and permanent disability by reason of a personal injury sustained or a hazard undergone as a result of, and while in the performance of, his duties at some definite place and at some definite time. G.L. c. 32, § 7. Accidental disability retirement can be awarded only when a regional medical panel majority concludes that the applicant is incapable of performing the essential duties of the job, that the incapacity is permanent, and that the incapacity might be the natural and proximate result of the personal injury sustained or hazard undergone in the course of employment. See Malden Retirement Bd. v. Contributory Retirement Appeal Bd., 1 Mass. App. Ct. 420, 423 (1973).

It has been judicially determined that on-duty injuries sustained due to goofing off or horseplay in the workplace, which render a person unable to perform his or her essential job functions, are not sufficient grounds for accidental disability retirement benefits because the injuries were not sustained while in the performance of an employee’s duties.

 

Firefighter Awarded Accidental Disability Retirement for PTSD

Mr. Travers, a former firefighter and emergency medical technician for the Town of Winchester, was ultimately awarded an accidental disability retirement based on his claim that he suffered disabling post-traumatic stress disorder after responding to the scene of a quadruple murder.

On June 16, 2010, Mr. Travers responded to a well-being call on Windsong Lane, a quiet street in a wealthy section of the community. This call exposed him to an extremely bloody and gory scene. Two days after exposure to this horrific crime scene, Boston Fire Department Critical Incident Team leader singled him out from others who had been at the scene and referred him to the Massachusetts General Hospital Critical and Emergency Psychiatric team. Mr. Travers experienced a litany of psychiatric symptoms and underwent hospital admissions for Post-Traumatic Stress Disorder. He was prescribed psychiatric medication.

He underwent in-patient and out-patient therapy and reported experiencing nightmares, agitation, an inability to remember or focus on tasks, and a lack of appetite. He was examined on March 8, 2013 by a regional medical panel composed of three psychiatrists, who unanimously determined that he was disabled, the disability was likely to be permanent, and it might have been the natural and proximate result of a personal injury he sustained while in the performance of his duties.

The DALA Magistrate overturned the local retirement board’s denial of Travers’ disability retirement application. It ruled that he was permanently disabled by PTSD caused by his reaction to being exposed, while in the performance of his duties, to the bloody remains of two people murdered at a home on Windsong Lane. He has demonstrated that he is eligible for accidental disability retirement. This determination was made notwithstanding his eventual return to work after the trauma exposure and his pre-existing psychiatric history as well as his arrest for a weapons charge.

Light Duty Blocks Disability Retirement

In the case of Cesaitis v. Worcester Retirement Board, which was decided on June 2, 2017, Administrative Magistrate Judithann Burke of the Massachusetts Division of Administrative Law Appeals recently upheld the denial of an Accidental Disability Retirement Claim where a Worcester cafeteria worker, who agreed to a modification of his job duties because of a back problem, performed duties not listed in the agreement.

After agreeing to changes in his job description to relieve him from having to perform strenuous activities, the employee took it upon himself to exceed the limits of the new job description and go beyond the physical restrictions set forth in the agreement with his employer. Rather than performing the only the limited and doctor-sanctioned duties set forth in the agreement, he routinely failed to rest and performed bending and lifting activities in order to place items in coolers. He did so because he felt responsible to make sure all of the activities of the cafeteria were performed. The Administrative Magistrate found this to be commendable. However, she ruled that by bending and lifting he undertook work that was inconsistent with the previously agreed upon accommodations designed to address the employee’s back pain.

The Magistrate determined that “in light of the Petitioner’s refusal, (notwithstanding his thought processes and motivations) to restrict his work activities to those set forth in the accommodated job description… the Petitioner does not qualify for an accidental disability retirement.”

The denial is based on the premise that a medical panel is allowed to consider reasonable accommodations in determining whether, under G.L. c. 32 § 7, a public employee is “unable to perform the essential duties of his job and that such disability is likely to be permanent.” There is a duty imposed on the employee to seek a reasonable accommodation from his or her employer to address any temporary or permanent limitations caused by the injury.

It is important to note that this was a civilian non-public safety position and in the case of a Massachusetts firefighter or police officer, there is likely no light duty or reasonable accommodation which would allow an otherwise disabled employee to continue to perform the essential functions of his or her public safety position.