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.