Re-Assignment Blocks Disability Retirement

FIREFIGHTERIn Accidental Disability Retirement cases, the burden is on the applicant to prove that he is permanently unable to perform the essential functions of his or her position due to an injury sustained or a hazard undergone in the line of duty. Sometimes, an employer will attempt to make an accommodation by  transferring the disabled employee to another less strenuous position. When this happens, the question is not whether the employee is able to perform his former duties, but whether he or she is able to perform the duties of the new position.

For example, in the case of Paul Kaitz v. State Board of Retirement, which was recently decided, an Administrative Magistrate of the Massachusetts Division of Administrative Law Appeals recently denied a firefighter accidental disability retirement benefits because he was able to perform the essential functions of his new position of communications dispatcher.

Beginning in 1987, Paul Kaitz was a volunteer firefighter for the Holliston Fire Department. He began working for the Massachusetts Department of Environmental Management (DEM) as a seasonal laborer on or about April 2, 1995. His title was Seasonal Fire Laborer I. On April 8, 1997, Kaitz injured his back while he was working in the Marlboro Sudbury Forest. He was clearing storm damage, cutting felled trees, when he picked up a section of cut tree and felt pain in his back, which radiated to the anterior aspect of the right side down to the knee level. He filed an injury report the same day.

On December 20, 2004, Kaitz reported that he injured his back and leg when he slipped on snow and ice after removing a plow from his vehicle in Hopkinton State Park. He filed an injury report the next day.

On or around June 12, 2005, as the result of a job reclassification, the job title for Laborer (Fire) II was changed to State Firefighter I, as State Firefighter I duties were not distinct from those of a Laborer (Fire) II within the Bureau of Forest Fire Control. Kaitz was unable to perform the duties of a firefighter and on May 3, 2006, DCR informed Kaitz that he was being transferred to the Bureau of Forest Fire Control’s Radio Dispatch Communications Center, as “there is no option for permanent modified duty in the State Firefighter I position.” The title of the job he was performing was Communications Dispatcher I.

On or about November 9, 2009, Kaitz filed with the State Board of Retirement an application for either accidental or ordinary disability retirement. The application was based on back injuries on April 8, 1997 at the Marlboro/Sudbury State Forest in Hudson and on December 20, 2004 in the Hopkinton State Park Building.

When asked to describe his job duties, Kaitz responded: “All phases of dispatching and communications for DCR. See attached job description for Dispatcher I.” Later in the application, he listed his current position as “State Firefighter I.” He described his job duties as climbing ladders and heavy lifting, which is required of a firefighter but not a dispatcher. The medical panel opined that Kaitz was not incapable of performing the essential duties of a Communications Dispatcher and the State Retirement Board notified Kaitz that his claim for an accidental disability retirement was denied.

Although he may not have been able to perform the duties of a firefighter, he was able to perform the less strenuous duties of a dispatcher.  When determining the essential duties of an applicant’s job, it is not enough to rely on the formal job description; the essential duties of an applicant’s job are the duties that he is actually required to perform. Here, because of his re-assignment from the position of firefighter to the position of dispatcher, he was able to perform the relevant job duties of his current and he was, therefore, unable to meet his burden to prove incapacity.  He listed the position of Communications Dispatcher in his disability retirement application and he had been working in that position for the last three years of his employment.