Police Officer’s Disability Retirement Claim Denied

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.’”

Career Incentive Payments not Regular Compensation

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.

Police Officer Denied Disability Retirement

The Division of Administrative Law Appeals recently upheld the Haverhill Retirement Board’s denial of an application for accidental disability retirement on the grounds that there is no evidence that the applicant’s heart condition disabled him from performing his essential duties on the last day that he worked. The applicant, John Rogers, retired because the police chief agreed to end an internal affairs investigation into an on-duty extramarital affair that he was conducting if Rogers agreed to retire.

Rogers cited a hazard undergone and noted “heart attack, coronary heart disease, hypertension, hyperlipidemia, stent” as the basis for his claim. He cited incidents that occurred on January 9, 2011 (“heart attack”) and February 26, 2011 (“hospitalized due [to] chest pain and stress related”). He also claimed that he was exposed to the “hazard” from “October 2010 to present.” (Stipulation; Ex. 4.) Under description of the hazard, he listed “heart attack, panic attack, anxiety attack, sharpness of breath, chest pain, dizziness.”

Rather than face a disciplinary proceeding that could result in his termination, Rogers agreed to retire. He filed an application for accidental disability retirement under G.L. c. 32, §§ 6, 7, and 94, the so-called “Heart Law.” He claimed that he suffered a “heart attack, coronary heart disease, hypertension, hyperlipidemia, and stent” as the basis for his ADR claim. He further alleged that he suffered, “heart attack, panic attack, anxiety attack, sharpness of breath, chest pain, and dizziness.”

After completing an internal affairs investigation, Haverhill Deputy Police Chief Thompson wrote a report wherein he concluded that Rogers violated ten different Haverhill Police department rules and regulations, including ones having to do with immoral conduct, neglect of duty, unsatisfactory performance, vehicle operations, truthfulness, and confidentiality. Deputy Thompson recommended that Rogers be terminated, but he noted: “Due to the fact that Lieutenant Rogers retired effective June 23, 2011 no further action will be taken on this investigation.”

Rogers wrote that Rogers “has a history of acute myocarditis complicated by acute myocardial infarction requiring stent placement. Due to the residual effects of his myocardial infarction, he continues to have symptoms which limit his physical activity. Specifically, he was no longer able to perform physical excursion duties prior to his retirement date of June 23, 2011.”

The Chief of Police wrote, “Prior to this retirement submittal Rogers had been on full non restricted duty dating back to 2/9/11. During this time frame he worked 65 regular work shifts, 143 hours of overtime and 98 hours of traffic direction/private detail assignments…. I believe that as a result of his early departure from city employment Rogers is attempting to obtain a medical disability pension. Rogers never advised the city of any potentially serious medical issues or health concerns after his return to unrestricted duty. This disability claim only surfaced after being faced with the possibility of a termination hearing. Rogers continued to aggressively work shifts, overtime, details as well as maintain a law practice from his return to duty up until his departure from city employment. I strongly oppose this request for a disability pension. It is my belief that this claim is completely and unequivocally without merit and would unjustly provide a significant benefit to Rogers. Should this request be approved it would be a huge disservice to the entire Haverhill Retirement System.”

The Division of Administrative Law Appeals ruled that Rogers did not made out a prima facie case for accidental disability retirement, and thus he was not entitled to examination by a medical panel. The decision of the Haverhill Retirement Board denying his claim is affirmed. There is no reliable evidence in the record that Rogers was disabled as of the last day that he performed his duties.

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.

Getting a Disability Retirement in Massachusetts

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.

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.