Police Officer Denied Disability Retirement

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.

Social Worker Denied Group 2 Classification

Pursuant to G.L. c. 32, § 3(2)(g), there are four (4) group classifications in the Massachusetts Retirement System. Group 1 is the general classification for civilian employees who have non-hazardous jobs. Those classified in this group must work until age sixty-five (65) to receive the maximum retirement benefit.

Employees classified in Group 2 have potentially hazardous jobs and receive more lucrative benefits compared to those in Group 1.

Uniformed Members of the Massachusetts State Police are classified in Group 3.

Those classified in Group 4 receive maximum retirement benefits at 55 years of age with 33 years of service.

A Magistrate of the  Division of Administrative Law Appeals (DALA), recently determined that an employee of the Department of Public Health, who worked as a Social Worker was not entitled to a Group 2 classification. He was assigned to the medical units at Tewksbury State Hospital (Tewksbury). The top two floors of Tewksbury houses psychiatric units which are operated by the Department of Mental Health. The Social Worker, Frank Asimakopoulos, spent 85% of his day in constant contact with his patients. Twenty percent of the patients in the D3 and E3 units wore ankle bracelets that alarmed if they attempted to leave the hospital. There was a small percentage of patients with criminal histories, five percent of the patient population was on probation and wore court-ordered ankle bracelets.

Mr. Asimakopoulos argues that because he had constant contact with a population with high psychiatric medication dependence, high dangerous behavioral tendencies or criminal backgrounds, he should be classified in Group 2. He claims that he spent 85% of his working day in constant contact with these kinds of patients. However, the evidence shows that he interacted mostly with non-violent people, and rarely with patients who were subject to court-ordered monitoring via ankle bracelets. While it is true that he performed the valuable services of a social worker, his regular and major duties did not require him to spend more than 50% of his time providing care, custody, instruction and other supervision to patients who were mentally ill or mentally defective. It is unclear whether his patients meet the criteria of “mentally ill” or “mentally defective,” since DPH housed them at Tewkbury for medical care. It is undisputed that DMH operated psychiatric units at the same facility for the “mentally ill” or “mentally defective.”

Even if the DPH population served by Mr. Asimkapolous at Tewksbury could be found to be “mentally ill” or “mentally defective,” constant contact with those patients does not entitle Mr. Asimakopoulos to Group 2 status.

According to his job duties from the November 25, 2008, July 9, 2010 and July 1, 2011 Form 30s, Mr. Asimakopoulos was responsible for monitoring the Mass Health status and eligibility of all patients on assigned units, providing assistance and positive encouragement to patients to apply for the most appropriate category of Mass Health benefits, managing PNA funds of Rep Payee cases, promoting the psychosocial wellbeing of patients at high risk of social isolation, apathy and institutional dependency/regression, and completing all Mass Health benefits in preparation for discharge. In order to perform his social work and get pertinent information in order to procure their Mass Health and other social benefits, Mr. Asimakopoulos had to meet with his patients.

However, constant contact does not indicate care, custody, instruction or supervision of the mentally ill or mentally defective more than 50% of the time, which is required for a Group 2 retirement. For example, it was determined that drawing blood from inmates as a regular and major duty was not giving care, custody, instruction, and other supervision, and no Group 2 job classification was justified. Likewise, no Group 2 classification was justified for a Social Worker at a mental health facility investigating resident complaints while alone with the residents who could sometimes be combative. Because Frank Asimakopoulos’ regular and major duties did not require him to have the care, custody, instruction or other supervision of “mentally ill” or the “mentally defective,” his request for Group 2 classification was denied.