COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS

Appeal of:

Debra Chaisson,

Petitioner,

v. Docket No. CR-07-52

Waltham Retirement Board,

Respondent.

Appearance for Petitioner:

Debra Chaisson, pro se

8 Norumbega Terrace
Waltham, Massachusetts 02453

Appearance for Respondent:

Lane Herman, Esq.

Law Offices of Michael Sacco
285 College Highway
P.O. Box 479
Southampton, Massachusetts 01073-0479

Administrative Magistrate:

Natalie S. Monroe, Esq.

DECISION

On December 26, 2006, the Waltham Retirement Board (the "Board") denied petitioner Debra Chaisson's application for disability retirement benefits under G.L. c. 32, §§ 6, 7. Ms. Chaisson appealed the Board's decision pursuant to the provisions of G.L. c. 32, § 16(4).

I held a hearing on January 15, 2008, at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston. The Board submitted a pre-hearing memorandum, which was marked as Exhibit A for identification. Eight exhibits (Exhibits 1-8) were entered into evidence and Ms. Chaisson testified on her own behalf. The Board did not present any witnesses. There is one tape of the hearing.

FINDINGS OF FACT

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

1. Debra Chaisson was born on April 25, 1956. She began working in the Waltham School Department as a Cafeteria Worker in October 1999. She became a member of the Waltham Retirement System on May 26, 2000. (Testimony; Exhibits 3, 8).

2. Ms. Chaisson's job duties included preparing food, setting up food lines, taking food out of the walk-in freezer, carrying trays of food, operating the cash register and washing pots and pans. (Testimony; Exhibit 6).

3. On February 26, 2004, Ms. Chaisson drove to work and parked in the Waltham High School parking lot. As she was walking in the parking lot on her way into work, she slipped and fell backwards onto her back. She hit the back of her head on the pavement. Immediately after her fall, Ms. Chaisson's head and right side hurt, and she felt "different." (Testimony; Exhibit 7).

4. Ms. Chaisson initially went to the school nurse for treatment. She knew, however, that they were short-staffed in the cafeteria so she worked the rest of the school day. The longer she worked, the worse she felt; her head and right side hurt the most. (Testimony).

5. At the end of the work day, Liz Hart, Ms. Chaisson's supervisor, told Ms. Chaisson that she did not look well and instructed her to go back to the school nurse. The school nurse sent Ms. Chaisson to HealthPoint Medical Group, which in turn sent her to the Newton-Wellesley Hospital. (Testimony).

6. At the Newton-Wellesley Hospital, Ms. Chaisson was diagnosed with a mild concussion. She also injured her right shoulder and right leg, and had numbness in her face and right hand. (Testimony).

7. Ms. Chaisson has not been able to return to work since her accident. She has nerve damage and weakness in her right arm. She cannot fully close her right hand and cannot lift heavy items, such as trays of food. Ms. Chaisson also has weakness in her left leg, which sometimes "drags" when she walks. She also gets nauseous and has dry heaves when she performs routine tasks, such as driving and light housework. (Testimony; Exhibits 4, 5).

8. Ms. Chaisson was an independent person before her accident and she would like to return to work. (Testimony).

9. In the summer of 2007, Ms. Chaisson had an evaluation in the Waltham High School cafeteria to determine whether she could return to work. She did not pass the evaluation and therefore could not return to work. (Testimony).

10. Ms. Chaisson has received worker's compensation benefits since the date of the accident. (Testimony; Exhibit 6).

11. On October 24, 2006, Ms. Chaisson applied for disability retirement benefits. In her application, she requested to receive either ordinary disability or accidental disability benefits. (Exhibit 3).

12. On December 26, 2006, the Board denied Ms. Chaisson's application. (Exhibits 1, 2).

13. Ms. Chaisson appealed the Board's decision. (Testimony).

CONCLUSION

The Waltham Retirement Board's decision denying Ms. Chaisson's application for ordinary disability or accidental disability retirement benefits is affirmed.

To be eligible for ordinary disability retirement benefits, a member of a retirement system must have at least ten years of creditable service. G.L. c. 32 § 6(1). In this case, Ms. Chaisson became a member of the Waltham Retirement System on May 26, 2000, and she applied for retirement benefits on October 24, 2006. Consequently, when she applied for ordinary disability retirement benefits, Ms. Chaisson had less than ten years' of creditable service. Because Ms. Chaisson did not have ten years of creditable service when she filed her application, she cannot receive ordinary disability retirement benefits. G.L. c. 32 § 6(1).

Nor is Ms. Chaisson eligible for accidental disability retirement benefits under G.L. c. 32, § 7. As a threshold requirement to receiving accidental disability benefits, an applicant must show that she was injured "while in the performance of [her] duties." G.L. c. 32, § 7(1). It is well-settled that a person who is injured on her way to work is not "in the performance of her duties" within the meaning of G.L. c. 32, § 7(1). See, e.g., Namvar v. CRAB, 422 Mass. 1004 (1996); Richard v. Worcester Ret. Bd., 431 Mass. 163 (2000). In Richard, for example, a public health nurse was driving to her first appointment of the workday when she got in a car accident. The Court found that because she was traveling to work, she was not in the performance of her duties when the accident occurred. 431 Mass. at 164-65.

Ms. Chaisson correctly points out that she was on school property when she fell. This does not change the result, however, because she was not carrying out one of her work duties when she fell. Nor was she walking from one job duty (e.g., setting up food lines) to another job duty (e.g., taking out the trash). See Namvar, 422 Mass. at 1004-05 (if applicant had been performing a duty in the cafeteria and was on her way to perform another duty, then she would have been found in the performance of her duties when she fell). Instead, Ms. Chaisson was walking to the school building to begin her workday.

In Namvar, for instance, a professor was returning to her office from her lunch break in the school cafeteria when she fell and was injured. The Court found that because the professor was walking from her lunch break back to her office to work, she was not injured while she was "in the performance of her duties." 422 Mass. at 1004-05. The fact that she fell on campus property did not render her "in the performance of her duties," and therefore she was not entitled to accidental disability retirement benefits. Id.

Ms. Chaisson was a very credible witness and the evidence shows that she also was a hardworking and conscientious employee. Under the prevailing case law, however, Ms. Chaisson is not eligible for either ordinary or accidental disability retirement benefits.

Based on the foregoing, the Board's decision is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Natalie S. Monroe
Administrative Magistrate

Dated: March 21, 2008


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