COMMONWEALTH OF MASSACHUSETTS


Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS


Appeal of:

Anthony Bonanno,

Docket No. CR-05-1304[1]
Petitioner

v.

Massachusetts Port Authority Employees' Retirement Board (MPAERB),

Respondent


Appearance for Petitioner:

William T. Salisbury, Esq.,

21 McGrath Highway, Suite 304
Quincy, Ma. 02169


Appearance for Respondent:

Scott Merrill, Esq.

Foley Hoag LLP
155 Seaport Blvd.
Boston, Ma. 02210


Administrative Magistrate:

Joan Freiman Fink, Esq.

DECISION

Pursuant to G.L. c. 32 §16(4), the Petitioner, Anthony Bonanno, is appealing the October 27, 2005 decision of the Respondent, the MPAERB, denying his application for accidental disability retirement benefits (Exhibit 18). The appeal was timely filed in accordance with the provisions of G.L. c. 32 §16(4).

A hearing pursuant to G.L. c. 7 §4H was held on January 8, 2008 at the offices of the Division of Administrative Law Appeals, 98 N. Washington Street Boston, Ma. Various documents were entered into evidence at the hearing (Exhibits 1 -19). One cassette tape recording was made of the hearing. The Petitioner's Pre-hearing Memorandum was marked as "A" for identification and the Respondent's Pre-hearing Memorandum was marked as "B" for identification. The Petitioner testified in his own behalf. The record in this case was left open until February 8, 2008 for the submission of written closing memoranda.

FINDINGS OF FACT

Based on the testimony and evidence presented, I make the following findings of fact:

1. The Petitioner, Anthony Bonanno, d.o.b. 4/9/45, commenced employment at Massachusetts Port Authority (Massport) in or about Ocotober of 1983. He became a member of the Massachusetts Port Authority Employees' Retirement System at that time (testimony of the Petitioner).

2. In 1991, he was appointed to the position of Supervisor, Mechanical HVAC Maintenance for the Building Maintenance Unit of the Aviation Department at Logan Airport (testimony of the Petitioner).

3. His duties as Supervisor of Maintenance included supervising the operation of the mechanical and HVAC departments, coordinating preventive maintenance and snow melting activities, and controlling inventory (Exhibit 4, testimony of the Petitioner).

4. When he commenced employment at Massport, the Petitioner's immediate supervisor was Tony Mayolari. The Petitioner had a good working relationship with Mr. Mayolari and learned different maintenance techniques from him (testimony of the Petitioner)

5. In 1992, Mr. Mayolari retired. The Petitioner was assigned Mr. Mayolari's duties on a temporary, interim basis. In late 1993, Mr. Frederick Russell was appointed to take Mr. Mayolari's position (testimony of the Petitioner).

6. Mr. Bonanno was upset when Mr. Russell was hired as he felt that he (Russell) was not as qualified and was twenty years younger than himself (Bonanno) (testimony of the Petitioner).

7. The Petitioner experienced difficulty reaching Mr. Russell by cell phone and on occasion was unable to contact him (Russell) concerning specific work orders (testimony of the Petitioner).

8. The Petitioner also experienced a problem with Mr. Russell concerning work assignments. On occasion, if there were many ongoing projects, Mr. Russell would remove employees that the Petitioner had assigned to one specific project in order that they could work on another project (testimony of the Petitioner).

9. On another occasion, the Petitioner observed that one employee was especially accident prone and extremely problematic. Although the Petitioner reported that information to Mr. Russell and recommended that the employee in question be disciplined, Mr. Russell failed to take any action with respect to that employee (testimony of the Petitioner).

10. In 1998, the Petitioner attended a meeting with Mr. Russell and Mr. Tobin. At that meeting, Mr. Russell mentioned that an employee had complained that Mr. Bonanno had picked on him on a certain day. Although Mr. Bonanno protested that he (Bonanno) had not been present at work on the day in question, Mr. Russell strongly recommended that the Petitioner apologize as it would make that particular employee feel better (testimony of the Petitioner).

11. In June of 1998, the Petitioner sought treatment from a psychiatrist, Dr. Alexandra Accardi, for stress-related ailments including chest pains. The Petitioner complained of both work-related stress as well as stress resulting from family relationship issues (Exhibit 6).

12. He was subsequent prescribed the anti-depressant medication Prozac to assist him in dealing with his stress-related anxieties (testimony of the Petitioner, Exhibit 6).

13. At a labor relations seminar held in 2000 and attended by the Petitioner, Mr. Russell, as well as numerous other MassPort employees, Mr. Russell posed a question for general discussion concerning whether or not a supervisor could ask an employee if he/she was taking Prozac. The Petitioner became embarrassed and felt humiliated by Mr. Russell's inquiry (testimony of the Petitioner).

14. On December 5, 2000, the Petitioner experienced chest pains while at work checking toilets in Terminal B at Logan Airport. He was taken by ambulance to the Beth Israel Hospital where he was diagnosed with stress-related anxiety (Exs. 2, 3, & 7).

15. The Petitioner filed a Notice of Injury Report concerning the incident of December 5, 2000 (Exhibit 2).

16. The Petitioner also filed a workers' compensation claim concerning the incident of December 5, 2000. He eventually entered into a Lump Sum Settlement of his workers' compensation claim for $5,000 (Exhibit 17).

17. The Petitioner did not return to work after December 5, 2000 (testimony of the Petitioner).

18. In February of 2004, the Petitioner filed an application for accidental disability retirement benefits claiming that he is unable to perform his job "because of major depression and stress disorder which is due to events which occurred during and in the course of my employment with MassPort" (Exhibit 1).

19. In this application, the Petitioner specifically referenced the incident of December 5, 2000 in which he suffered chest pains at work as the injury or hazard undergone on account of which retirement is claimed (Exhibit 1).

20. Dr. Accardi filed a Physician's Statement in Support of the Application in which she responded to all three certificate questions in the affirmative. Dr. Accardi diagnosed the Petitioner as suffering from major depression and Post-Traumatic Stress disorder. Dr. Accardi opined that the Petitioner "was exposed during his tenure at MassPort to a long series of traumatic events that he perceived as serving to threaten his physical integrity. These included humiliating condemnations by his supervisors, a perceived lack of administrative support, a lack of acceptance of responsibility by his supervisor… and an overall atmosphere of hostility" (Exhibit 1A).

21. On October 27, 2005, the Respondent denied the Petitioner's application for accidental disability retirement without convening a medical panel (Exhibit 18).

22. On October 28, 2005, the Petitioner filed a timely appeal of this decision with the Contributory Retirement Appeal Board (Exhibit 19).

CONCLUSION

In order to qualify for an award of accidental disability retirement benefits, the Petitioner must demonstrate that she is permanently unable to perform the essential duties of his position as the proximate result of a personal injury sustained while in the performance of her duties in accordance with the provisions of G.L. c. 32 §7.

In this case, the Respondent denied the Petitioner's claim for accidental disability retirement benefits without having convened a Medical Panel as it claimed that Mr. Bonanno did not incur a personal injury as defined in the statute, but rather that his mental condition arose principally from bona fide personnel actions.

After reviewing the testimony and evidence presented in this appeal, I conclude that the Petitioner has not established a threshold showing of entitlement to section 7 benefits. In accordance with the provisions of 840 CMR 10.09 (2), "at any stage of a proceeding on an ordinary or accidental disability retirement application, the retirement board may terminate the proceeding and deny the application if it determines that the member cannot be retired as a matter of law."

In order to meet his burden, a Petitioner must prove one of two hypotheses: that his disability was caused by a single or series of work-related events, or that his employment exposed him to "an 'identifiable condition' that is not common and necessary to all or a great many occupations" that resulted in disability through gradual deterioration Blanchette v. CRAB, 481 N.E. 2d 216 (1985).

Mr. Bonanno does not prevail under either hypothesis. The Petitioner claims that the cumulative stress of his employment situation caused him severe emotional anxiety and trauma resulting in his experiencing chest pains and disabling anxiety attacks. Notwithstanding that fact, the Petitioner failed to demonstrate that his position as a Supervisor of Mechanical Maintenance was any more stressful than a great many other positions in the field of maintenance and repair work. An applicant for section 7 benefits cannot meet his burden of proof merely by stating that his work is stressful. After considering all the evidence, I conclude that Mr. Bonanno's work stress was not "an 'identifiable condition' not common and necessary to all or a great many occupations" within the meaning of Blanchette, supra.

Moreover, Mr. Bonanno's complaints stem from his perception that he was not treated fairly by his supervisor, Fred Russell. The Petitioner claims that as a result of the hostile actions of Mr. Russell, he suffered a personal injury within the meaning of G.L. c. 32 §7.

The term "personal injury" has the same meaning under G.L. c. 32 as it does under G.L. c. 152, the Workers' Compensation statute. Zavaglia v. CRAB, 345 Mass. 483, 188 N.E. 2d 147 (1963).

General Laws, c. 152, §1(7A) provides in pertinent part:

Personal injuries shall include mental or emotional disabilities only where the predominant contributing cause of such disability is an event or series of events occurring within any employment. If a compensable injury or disease combines with a pre-existing condition, which resulted from an injury or disease not compensable under this chapter, to cause or prolong disability or a need for treatment, the resultant condition shall be compensable only to the extent such compensable injury or disease remains a major but not necessarily predominant cause of disability or need for treatment. No mental or emotional disability arising principally out of a bona fide, personnel action including a transfer, promotion, demotion, or termination except such action which is the intentional infliction of emotional harm shall be deemed to be a personal injury within the meaning of this chapter.

Specifically excluded from the definition of personal injury under G.L. c. 152 §1 (7A) are mental or emotional disabilities "arising principally out of a bona fide, personnel action except such action which is the intentional infliction of emotional harm" (emphasis supplied).

After reviewing the incidents related by the Petitioner in his testimony, I conclude that those incidents constituted bona fide personnel actions on behalf of his supervisor. I further conclude that the Petitioner, perhaps due to acknowledged belief that he, not Mr. Russell, should have been appointed to the permanent position as department head, placed a different perspective on the events that occurred and perhaps took offense at comments made by Mr. Russell when no offense was intended.

In order to demonstrate an intentional infliction of emotional harm, the Petitioner must demonstrate that his employer's conduct was beyond the possible bounds of decency and was utterly intolerable. Agis v. Howard Johnson Co., 371 Mass. 140, 355 N.E. 2d 315, 318-319 (1976). Based on my review of the record, I conclude that the Petitioner failed to demonstrate that his supervisor, Mr. Russell, engaged in any conduct designed to intentionally inflict emotional harm on him. The fact that on some occasions, the Petitioner experienced difficulty reaching Mr. Russell by cell phone and that on another occasion, Mr. Russell did not impose disciplinary action on an employee in accordance with Mr. Bonanno's recommendation, does not substantiate the claim that Mr. Russell was acting in a deliberately hostile manner towards him.

Notwithstanding the Petitioner's assertion that Mr. Russell's intention was to humiliate him, I conclude that Mr. Bonanno failed to present any evidence to establish that premise. Mr. Russell's question at a labor relations seminar concerning what information can be elicited from employees was directed at the entire group. No evidence was presented that Mr. Russell singled out the Petitioner with the specific intent to embarrass him.

In conclusion, the Petitioner has failed to demonstrate that his disability is the proximate result of a personal injury sustained or hazard undergone as a result of, and while in the performance of his duties as required by G.L. c. 32 §7(1) as a threshold requirement in order to have a medical panel convened.

Accordingly, the decision of the MPAERB Retirement Board denying the Petitioner's application for accidental disability retirement benefits is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Joan Freiman Fink
Administrative Magistrate

Dated: March 13, 2008

[1] At the outset of the hearing, the Petitioner withdrew another appeal that he had filed, Bonanno v. MPAERB, CR-04-345.


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