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.