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.

The Notice Requirement for Mass. Accidental Disability Retirements

Massachusetts Accidental Disability Retirement law requires that that the injury sustained or hazard undergone which forms the basis of the disability retirement claim must have occurred within two years prior to the filing of the application. There are a few exceptions to this requirement. If for example, written notice of the injury was filed with the Retirement Board within 90 days of its occurrence, the notice requirement will be satisfied. Also, the receipt of workers’ compensation payments or G.L. c. 41 § 111F “IOD” payments for police officers and firefighters will satisfy the notice requirement.

Because of this “2 year lookback limitation,” unless there’s an official injury report on file for employees classified in Groups 2, 3, or 4 of the Massachusetts retirement system, within 15 days of knowledge of a personal injury sustained in the line of duty, the employee’s department head is required to notify the Retirement Board, in writing, of the time, location, cause, and nature of the injury along with any additional related information.

Unless one of the exceptions apply, the failure to provide notice to the Retirement Board within the required ninety (90) day notice period may be grounds for the denial of an Accidental Disability Retirement Application in cases where the employee had not received Workers’ Compensation or 111F benefits.

If you are Massachusetts police officer or firefighter who is preparing for the filing of an accidental disability retirement application, you should request a complete copy of your personnel file to see what injury reports are on file. You are entitled to a copy of your file pursuant to G.L. c. 149 § 152C. With a signed release, an attorney can also obtain a copy of the file.

Post-Retirement Earnings Limitations

Many police officers are interested in seeking public employment when they retire. Post retirement earnings paid by the Commonwealth of Massachusetts or any City and Town in Massachusetts are limited by G.L. c. 32 § 91. This post-retirement earnings cap applies whether the employee receives a regular or accidental disability retirement.

If you are receiving a public employee retirement, subject to a few rarely applicable exceptions, G.L. c. 32 § 91 limits your post retirement public employment earnings to the salary currently being paid for the position from which you retired plus $15,000.00. However, the $15,000.0 buffer does not apply to your first year of employment after retirement.

There is also a cap on the maximum number of hours which you can work after retiring from public employment in Massachusetts. Specifically, you cannot work more than 960 hours per calendar year for a public employer in Massachusetts.

If you are a retired public employee, such as a police officer or firefighter, you should be aware of the limitations on post-retirement earnings. If you have exceeded the limitations set forth above, your Retirement Board may garnish your future retirement payments to recoup excess benefits previously paid.

Retirees providing services to public entities in Massachusetts are subject to G.L c. § 91 earning limitations, regardless of whether they provide services as vendors, consultants, or independent contractors. Also, you cannot avoid the cap by forming a company or corporation if the arrangement is intended to circumvent post-retirement earnings limitations.

Notice Requirements for Accidental Disability Retirements

G. L. c. 32 § 7 (1) imposes strict reporting requirements which must be satisfied when applying for an accidental disability retirement in Massachusetts. Specifically, the law requires that your ADR application must be filed within two (2) years of the personal injury or hazardous exposure which you sustained, unless a notice of injury was filed with your local retirement board within ninety (90) days of the injury date.

There are a few exceptions to the reporting requirements. For example, if you are a public employee who is classified in Group 2, 3, or 4, you are excused from the reporting requirement if you were placed on Injured on Duty (IOD) leave pursuant to G.L. c. 41 § 111F or if the official records of your department contain injury reports. Likewise, if you received workers’ compensation payments for the injury upon which your Accidental Disability Retirement claim is based, you are excused from the 2 year filing limitation.

Limiting filings in cases where the injury was sustained more than 2 years prior to the filing may appear severe and the Division of Administrative Law Appeals has recognized the application of this rule sometimes has harsh impacts. However, DALA has noted that it is up to the Legislature to change the law if that is what is warranted. Otherwise, the law must be applied as written and if no recognized exception applies, only injuries and hazardous exposures which have occurred during the 2 year period immediately preceding the ADR application date can be relied upon as justification for the retirement.

Given the above-mentioned reporting requirements, public employees should file injury reports whenever they sustain an injury in the workplace and they should adequately document exposure to occupational hazards. Unless injury reports are placed on file in the official records of the injured employee’s department for those classified in Groups 2, 3, or 4, it is the injured employee’s department head’s legal obligation to notify the Retirement Board within 15 days of learning of the occupational injury.


Pension Forfeiture in Massachusetts

There are certain circumstances which might cause a Massachusetts public employee to lose his or her pension, whether the person is currently employed or has already retired. For example, G.L. c. 32, § 15(1) provides that a Massachusetts public employee who has stolen or misappropriated funds from his or her employer will forfeit his or her pension. In pension forfeiture cases, the term “misappropriation” is broadly construed and it extends beyond salary payments improperly made.

G.L. c. 32, § 15(1) does not require a conviction for the loss of a public pension due to misappropriation from a public employer. All that is required is a hearing held by the employee’s local retirement board. When a pension is forfeited due to a misappropriation of public funds, the employee is entitled to a return of his or her accumulated retirement deductions less any amounts which were misappropriated.

An employee who has been convicted of public corruption or extortion by a police officer or licensing official will lose all rights to his or her retirement as well as a return of his or her accumulated retirement deductions.

Any Massachusetts public employee who has been convicted of a violation of a statute applicable to his official position will forfeit his right to receive a Massachusetts retirement. In cases such as this, the employee or retiree is generally allowed to receive his or her accumulated retirement contributions, unless there was misappropriation or some other reason for the loss of deductions. Convictions of state or federal crimes can result in pension forfeiture. In cases such as this arguments sometimes arise as to whether the conviction was for a violation of laws applicable to the person’s position or office. In order to make this determination, the unique facts and circumstances of each individual case must be analyzed. Except in cases involving teachers and police officers, a public employee’s off-duty conduct is generally not considered official misconduct which results in the loss of a retirement.

Some individuals facing pension forfeiture have made claims that the loss of a pension constitutes an excessive fine in violation of the Eighth Amendment to the United States Constitution.

Massachusetts public employees who are terminated for moral turpitude lose their retirements, but they are entitled to a return of their accumulated deductions.

Electrician Injures Back while Bending to retrieve Pen

penRobert Stevens worked as a Mass Highway Department as an electrician in Lenox, Massachusetts.  After an appeal hearing he was awarded accidental disability retirement benefits, due to a personal injury he sustained on January 9, 2006, when he bent over and twisted to retrieve a pen he had dropped.

In some cases, accidental disability retirements are denied when the injury suffered is a result of a common movement of everyday life. However, the DALA Administrative Magistrate ruled that when a disabling injury is caused by one event, the applicant need not prove that the event was one not common to a great many jobs.

In this case, Stevens demonstrated that his disability is likely to be permanent and he has been unable to perform the essential duties as a Mass Highway Department electrician since 2006.

He was diagnosed with disabling L5 radiculopathy which the medical panel ruled might be the natural and proximate result of the injury sustained on January 9, 2006.

Prior to January 9, 2006, Mr. Stevens was able to perform the essential duties of his job. Within weeks after that date, he was unable to perform the essential functions. His back and left leg became immediately painful after the pen event. He promptly filed a notice of injury and sought medical attention the next day. Despite physical therapy and medication, both Mr. Stevens’ primary care physician and his treating neurologist determined that he was not able to perform the essential functions of his position and both physicians concluded that the injury of January 9, 2006 was, in fact, the natural and proximate cause of his disabling L5 radiculopathy.

Mr. Stevens is, therefore, entitled to a 72% accidental disability retirement.


Mental Disabilities & Stress

You are entitled to receive accidental disability retirement benefits in Massachusetts if your are permanently unable to perform the essential duties of your job if you sustained either a physical or mental disability. The mental disability must have been sustained while in the performance of your duties. It is possible to receive an accidental disability retirement due to stress or other mental or emotional disabilities. However, you must demonstrate that the source of the disability is “an identifiable condition … that is not common and necessary to all or a great many occupations.” Thus, it is not enough to show that the disabling stress is work related. You must also prove that “an identifiable condition … that is not common and necessary to all or a great many occupations” is the source of your disability.

Many jobs are mentally taxing and “stressful.” Thus, you must show that your mental or emotional disability was the result of something peculiar in your work that would distinguish your occupation from a wide variety of others, where employees face similar pressures and stressors in the workplace.

Post-traumatic stress disorder can form the basis for an accidental disability retirement award where an employee is exposed to traumatic events or experiences in connection with his or her employment.

A mental disability which arises out of a legitimate personnel action such as a termination, demotion, or transfer cannot be the basis of a mental disability retirement claim.  However, extreme workplace harassment may form the basis of a mental disability claim. In order to qualify, the harassment must rise to the level of intentional infliction of emotional harm and the work atmosphere must have been unbearable and not like working environments that are common to many workers in various occupations. Routine job conflicts and arguments with co-workers and supervisors, do not rise to that level.

Due to the lack of objective physical evidence, disability retirements based on stress or mental issues can be difficult to obtain. Contact a lawyer for more information.

Firefighter Receives Disability Retirement for PTSD

Joseph  Battersby began employment as a Boston Fire Fighter in January 1991. He was dispatched to a multi-family building fire on August 16, 2008 along with a Lieutenant who was not the usual Lieutenant he worked with, and one other Fire Fighter. As he had often done, Mr. Battersby was the first inside the building carrying the hoseline. He thought the Lieutenant was behind him. There was concern a baby might be inside the building. Mr. Battersby looked around and found no one. His radio fell off his gear and he could not locate it due to thick smoke. There was no water through his hoseline. He took off his mask to locate his radio. It was wrapped around the hoseline and inaccessible as he began to succumb to the smoke. He became unable to function. He was inside about twenty minutes. He recalls being dragged out of the building and brought to the Engine truck. From there, he was brought to Massachusetts General Hospital because of heat exhaustion and smoke inhalation. He received oxygen and IV fluids for about seven hours before being released and brought back to his Engine house where he was released to go home. The record of his treatment at the hospital noted treatment by Dr. William Tollefsen for dehydration and smoke inhalation that had exacerbated an asthma condition. The incident was reported to the Fire Department as smoke inhalation with no information about any psychological trauma.

Mr. Battersby stayed out from work. He received G.L. c. 41, § 111F (IOD) benefits until October 20, 2008, when his condition was no longer found to be job related. He continued treatment for anxiety.

He had a psychiatric evaluation conducted by a psychiatrist with the Lahey Clinic. He was diagnosed as having a major depressive disorder with psychosis. He was further diagnosed with “severe symptoms of PTST  [post-traumatic stress disorder] triggered by the events of August 16th, 2008.” His PTSD symptoms included “flashbacks, insomnia, nightmares, hypervigilance, anxiety and intrusive thoughts.” He was determined to be “psychiatrically disabled” from performing his duties as a Boston Firefighter.

He reported receiving telephone calls and a letter from the Boston Fire Department informing him that he would need to start using his sick time and vacation time because he was no longer found to be out from work due to any job connected injury. He expressed his feelings “that there is no one he can trust in the fire department and feels angry and that he needs to retire.” He was further diagnosed with acute stress reaction and anxiety. He stated that he “had been extremely stressed and upset about the idea of going back into the same work environment that triggered his illnesses.

Mr. Battersby filed a written resignation and intent to retire letter with the Boston Fire Department, dated December 4, 2008, to be effective the next day. His employer accepted his resignation as a voluntary separation from service. He sought a superannuation retirement. By letter of February 9, 2009, the Boston Fire Department was informed by the Boston Retirement Board that it approved Mr. Battersby’s superannuation retirement to become effective December 5, 2008.

On December 26, 2008, Battersby’s treatment providers produced a detailed report about his mental health condition and their treatment of him for purposes of an accidental disability retirement application. At that time, he was found to be unable to work at any job.

Mr. Battersby filed an application for accidental disability retirement benefits on February 25, 2009. In the Employer’s Statement, the Boston Fire Department wrote, “the Fire Department does not support Joseph Battersby’s application for accidental disability retiremnet as there is no medical or psychological documentation or incident reports within his departmental medical file to support this claim. Furthermore, Joseph Battersby retired from the Boston Fire Department in December 2008.

On appeal, Mr. Battersby was awarded an accidental disability retirement. The rationale for the award was that he satisfied his burden of proof on causation. There was no other competing life event in the record that explains his disability. The medical opinion evidence gone far enough to prove the psychiatric injury at the August 16, 2008 fire was the most important of all triggers to his current state of disability, and it does. The non-medical facts show something happened to Mr. Battersby during that time he was in the fire consistent with the claim he made, and they do. Mr. Battersby’s testimony and his accounts given to mental health providers within weeks of the fire, show he experienced the fire as a very frightening event in addition to having smoke inhalation difficulties.

Therefore, the decision of the Boston Retirement Board was reversed, and Mr. Battersby was awarded accidental disability retirement benefits.

Parking Enforcement Officer Denied Accidental Disability Retirement

The Massachusetts Contributory Retirement Appeal Board recently upheld the denial of accidental disability benefits on the grounds that the applicant failed to establish that her employment as a Parking Enforcement Officer in the City of Boston resulted in her disability.

Claire Collins was a parking enforcement officer with the Boston Traffic Department from 1992 to 2005. Prior to working as a parking enforcement officer, she had suffered a back strain or sprain while working at a dry cleaners, and had lost two days of work. During her years as a parking enforcement officer, she had multiple slip and fall injuries causing back strain or sprain. She lost, at most, five weeks work time from any single injury, and returned to work without restrictions, although she worked with back pain following a 1993 injury. She received workers’ compensation for the injuries that caused her to lose work time. Her last reported on-the-job injury was in January 2003.

Ms. Collins’s back problems grew progressively worse, and when she could not walk adequately to perform her job, she retired early on May 31, 2005, more than two and one-half years after her last reported work injury.

She continued to attempt to work, taking two jobs that required driving and another as a housekeeper. These efforts lasted only briefly, with the longest period of employment thereafter of two and one-half weeks. She could not handle the driving jobs because of back spasms; she also had difficulty picking up objects.

On March 20, 2008, Ms. Collins applied for accidental disability retirement.  In her application, she stated that she had lumbar radiculopathy [nerve compression in the lower spine that can cause pain], facet joint arthopathy [arthritis of the facet joints of the spine],  and a bulging disk with narrowing of the left lateral recess. She alleged in her application that these medical problems were caused by seven personal injuries she sustained on the job.

A PERAC medical panel was convened and each physician opined that Collins was physically incapable of performing the essential duties of her job, and that her incapacity was likely permanent. However, only one member of the panel answered the question of causation in Collins’ favor.

One doctor’s assessment was that “these are chronic degenerative changes in her spine, unrelated to any particular work accident, and similarly, although she is disabled from work, that disability does not appear clearly related to any of her. . . work injuries.” Ms. Collins was found to have degenerative arthritis and degenerative disc disease. Another doctor noted, “this is the natural progression of underlying degenerative arthritis and degenerative disc disease, and is not the result of any specific injury at work. Gradual and increasing problems are anticipated. In my opinion said incapacity is not the proximate result of a work injury sustained on account of which retirement is claimed.”

On January 10, 2010, the Boston Retirement Board denied Ms. Collins’s application on the basis of lack of causation. Ms. Collins claimed she was eligible for an accidental disability retirement because the work-related back injuries aggravated her underlying back problems. However, the majority of the medical panel adequately addressed and ultimately rejected this theory.

Because the medical panel found that Ms. Collins’s incapacity was not job-related, and there has been no showing that the panel applied an erroneous standard in reaching this conclusion, the Boston Retirement Board’s decision denying her application for accidental disability retirement was affirmed on appeal.

Risk of Re-Injury in Massachusetts ADR Cases

You may qualify for an accidental disability retirement (ADR) if you are physically able to perform all of your essential duties, you may still be eligible for an ADR if returning to work would constitute an unreasonable risk of substantial harm to yourself or third parties, due to a risk of re-injury.

For example, where a PERAC Medical Panel ruled against an ADR applicant, a new medical panel was convened because the first panel failed to consider the risk of re-injury. The question for the new medical panel to answer is: in light of the applicant’s history of rotator cuff rupture, and in light of his essential job duties that require him to lift adult male clients, and restrain violent adult male clients, is he able to perform the essential duties of his job without a reasonable probability of substantial harm to himself or third parties?

In another case, a police officer who sustained a knee injury was entitled a to a new medical panel  to consider and evaluate a whether there was a risk of re-injury to the officer’s knee and, due to such risk,  whether he would be a danger to others while undertaking strenuous police work.

If there is a risk of re-injury, the applicants will be entitled to an accidental disability retirements.