Fall River Police Officer Wayne Rosario was recently denied accidental disability retirement benefits because he failed to satisfy the two-year notice requirement established by G.L. c. 32, § 7(1). The Fall River Retirement Board denied Rosario’s Accidental Disability Retirement claim based on its determination that his claimed psychological injury did not occur within two years prior to his application, and he did not file any injury reports or incident reports about a psychological injury prior to the two-year notice period. The incidents relied on in Mr. Rosario’s application occurred well before the two-year period and only physical injuries were reported.
A hearing was held before the Division of Administrative Law Appeals in Boston, Massachusetts and that hearing resulted in a decision upholding the denial of benefits.
Rosario may have been able satisfy the two-year notice requirement if there is a record of a mental injury he sustained or a hazard undergone on file in the official records of his department. Such records are often injured-on-duty records for which G. L. c. 41, § 111F benefits are received, an employee-filed injury report or an employer-filed injury report sent to the local retirement board.
There were records of physical injuries sustained but not evidence of any mental injuries. Therefore, Rosario could only rely on psychological injuries arising within the 2-year period immediately preceding the filing of his ADR Application.
In rejecting his claim for an accidental disability retirement, the Magistrate hearing Rosario’s case ruled as follows: “his focus on past events and his animosity toward his fellow officers and supervisors as shown in his testimony and Mr. Rog’s records lead me to conclude that Mr. Rosario was dissatisfied with being a police officer and wanted to leave the FRPD. He did not want to accept a regular retirement pension, however, because it was ‘a joke. Failure to get along with coworkers and superiors is not so uncommon as to constitute an ‘identifiable condition.’”
Upon retiring from public service, a member of the Massachusetts Public Employee Retirement System is entitled to a superannuation retirement allowance that is based on the member’s average annual rate of regular compensation for his last three years of employment or for his three highest paid consecutive years of service. Regular compensation is generally considered to be an employee’s base salary.
Because of the above-described retirement formula, disputes sometimes arise regarding what is considered “regular compensation” for retirement purposes. A series of decisions have progressively narrowed the definition of regular compensation. For example, in the recent case of Burke v. Teachers Retirement Board, certain payments that Ms. Burke received were determined to be “career incentive payments” and, therefore, not regular compensation.
Ms. Burke was a member of the Massachusetts Teachers’ Retirement System Pursuant to her contact with the Mystic Valley Regional Charter School, she was to receive payments for remaining in her position and the total amount of these payments was based on her staying employed with the Charter School. Ms. Burke claimed that the payments were longevity payments and, therefore, countable towards her regular compensation calculation for retirement purposes.
Certain bonuses are considered regular compensation and not countable towards retirement. Likewise, 807 CMR 6.02 (2)(e) explicitly excludes “amounts paid as a career incentive which do not become part of the member’s base salary” from calculations of regular compensation.
It was determined that the payments made to Ms. Burke for fulfilling her yearly contracts with MVRCS were paid as career incentives and are not part of her base salary. For payments to be included as longevity payments for purposes of regular compensation calculation, they must be paid on a non-contingent basis.
These payments do not meet the “non-contingent” requirement of a longevity payment because they are contingent upon the teacher’s fulfillment of the yearly school contract. Ms. Burke received these payments on the condition that she continued working beyond certain dates that were specified in her contracts. These payments would have to be returned to MVRCS along with payment of liquidated damages if Ms. Burke did not work past the required dates. The payments themselves were not based solely on Ms. Burke’s number of years of service. Rather, the payments were made if Ms. Burke remained employed with MVRCS throughout each of her yearly contracts. These payments were intended as an incentive to retain Ms. Burke’s employment throughout the school year and are not part of her base salary.
In order to get an accidental disability retirement in Massachusetts you must prove that you are permanently disabled from performing the essential duties of your position. Also, the cause of your permanent disability must be job-related. If you are a civil service police officer, sergeant, lieutenant, captain or firefighter, the major duties are set forth in the essential task list for your position, which is promulgated by the Human Resources Division of the Massachusetts Executive Office of Administration and Finance. Otherwise, your major duties will be set forth in the job description for your position.
The first step in any public employee disability retirement case is to have your treating doctor complete a Physician’s Statement in support of your Application. Your treating physician must state that you are permanently incapable of performing your essential functions and that disability is job-related. In other words, the doctor must answer “yes” to the questions of disability, permanency, and causation.
In order to be awarded a disability retirement pursuant to M.G.L. c. 32, § 7, you will have to prove that you are permanently incapable of performing the essential duties of your position. Your retirement board must decide the case on all the evidence. To obtain an accidental, as opposed to an ordinary, disability retirement you must further demonstrate you are permanently unable to perform the essential duties of your job due to a personal injury sustained or hazard undergone as a result of, and while in the performance of, your duties at some definite time and at some definite place. This requires you to prove a causal connection between your disability and your employment duties. You must demonstrate that you satisfy all of the above-listed requirements by a preponderance of the evidence.
In order to satisfy the “strict causation standard” you must prove either that (1) your disability arose from a single work-related event or series of events at work or (2) if the disability was the product of gradual deterioration, that the employment exposed you to an identifiable condition that is not common and necessary to all or a great many occupations.
A Disability Retirement Lawyer may be able to help you prove your case to your local, regional, or state retirement board.