The Division of Administrative Law Appeals recently upheld the Haverhill Retirement Board’s denial of an application for accidental disability retirement on the grounds that there is no evidence that the applicant’s heart condition disabled him from performing his essential duties on the last day that he worked. The applicant, John Rogers, retired because the police chief agreed to end an internal affairs investigation into an on-duty extramarital affair that he was conducting if Rogers agreed to retire.
Rogers cited a hazard undergone and noted “heart attack, coronary heart disease, hypertension, hyperlipidemia, stent” as the basis for his claim. He cited incidents that occurred on January 9, 2011 (“heart attack”) and February 26, 2011 (“hospitalized due [to] chest pain and stress related”). He also claimed that he was exposed to the “hazard” from “October 2010 to present.” (Stipulation; Ex. 4.) Under description of the hazard, he listed “heart attack, panic attack, anxiety attack, sharpness of breath, chest pain, dizziness.”
Rather than face a disciplinary proceeding that could result in his termination, Rogers agreed to retire. He filed an application for accidental disability retirement under G.L. c. 32, §§ 6, 7, and 94, the so-called “Heart Law.” He claimed that he suffered a “heart attack, coronary heart disease, hypertension, hyperlipidemia, and stent” as the basis for his ADR claim. He further alleged that he suffered, “heart attack, panic attack, anxiety attack, sharpness of breath, chest pain, and dizziness.”
After completing an internal affairs investigation, Haverhill Deputy Police Chief Thompson wrote a report wherein he concluded that Rogers violated ten different Haverhill Police department rules and regulations, including ones having to do with immoral conduct, neglect of duty, unsatisfactory performance, vehicle operations, truthfulness, and confidentiality. Deputy Thompson recommended that Rogers be terminated, but he noted: “Due to the fact that Lieutenant Rogers retired effective June 23, 2011 no further action will be taken on this investigation.”
Rogers wrote that Rogers “has a history of acute myocarditis complicated by acute myocardial infarction requiring stent placement. Due to the residual effects of his myocardial infarction, he continues to have symptoms which limit his physical activity. Specifically, he was no longer able to perform physical excursion duties prior to his retirement date of June 23, 2011.”
The Chief of Police wrote, “Prior to this retirement submittal Rogers had been on full non restricted duty dating back to 2/9/11. During this time frame he worked 65 regular work shifts, 143 hours of overtime and 98 hours of traffic direction/private detail assignments…. I believe that as a result of his early departure from city employment Rogers is attempting to obtain a medical disability pension. Rogers never advised the city of any potentially serious medical issues or health concerns after his return to unrestricted duty. This disability claim only surfaced after being faced with the possibility of a termination hearing. Rogers continued to aggressively work shifts, overtime, details as well as maintain a law practice from his return to duty up until his departure from city employment. I strongly oppose this request for a disability pension. It is my belief that this claim is completely and unequivocally without merit and would unjustly provide a significant benefit to Rogers. Should this request be approved it would be a huge disservice to the entire Haverhill Retirement System.”
The Division of Administrative Law Appeals ruled that Rogers did not made out a prima facie case for accidental disability retirement, and thus he was not entitled to examination by a medical panel. The decision of the Haverhill Retirement Board denying his claim is affirmed. There is no reliable evidence in the record that Rogers was disabled as of the last day that he performed his duties.