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.