Suffolk, ss, Division of Administrative Law Appeals
v. Docket No. CR-08-663
Barnstable County Retirement Board,
Appearance for Petitioner:
3837 Minitree Glen Drive
Providence Forge, VA 23140
Appearance for Respondent:
James H. Quirk, Jr., Esquire
P.O. Box 268
Yarmouthport, MA 02675
SUMMARY OF DECISION
The Petitioner, who had minimal training for the position of municipal Treasurer/Collector, and, who was under varying degrees of stress throughout her tenure in office, did not meet her burden of proving that she sustained a personal injury with the purview of G..L. c. 32, § 7(1) or G.L. c. 152.
Pursuant to G.L. c. 32 s. 16(4), the Petitioner, Wendy Cahoon, is appealing from two actions of the Respondent, Barnstable County Retirement Board, (BCRB): the September, 24, 2008 decision denying her application for accidental disability retirement benefits (Exhibits 1A and 2A); and, the November 5, 2008 decision denying her request to change the effective date of her ordinary disability retirement. (Exhibits 1B and 2B). A hearing was held on January 5, 2009 at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, Boston, MA.
At the hearing, fourteen (14) exhibits were marked. The Petitioner testified and argued in her own behalf. The Petitioner also presented the testimony of: Donna Ingrassia, former Treasurer Collector in the Town of Brewster; and, Mark Cahoon, the Petitioner's husband. The Respondent stated its argument for the record. One (1) tape was made of the proceedings.
On September 14, 2007, DALA issued a decision ordering that a medical panel be convened to evaluate the Petitioner. Wendy Cahoon v. Barnstable County Retirement Board,CR-07-345 (Cahoon I). The BCRB did not appeal from the DALA Decision and a medical panel was convened. The Decision in CR-07-345 is incorporated into the present case record. The Findings of Fact (FF) set forth in that Decision which have ongoing evidentiary support in the entire case record, including the evidence offered in Cahoon II, will be reiterated here. The FF from the 2007 appeal will be identified as "FF # , Cahoon I." Additional findings of fact based upon the evidence submitted in the present case (Cahoon II) will be set forth thereafter. Where an exhibit has appeared in both records, the Exhibit no. for each appeal has been noted in the corresponding FF, e.g. "Exhibit 1, Cahoon I and/or Exhibit 2, Cahoon II".
Findings of Fact-Cahoon I
1. The Petitioner, Wendy Cahoon, d.o.b. 05/01/56, first began employment in the Town of Brewster Office of the Treasurer Collector in the late 1970's. She returned on November 20, 1989 after taking several years off to raise her daughter. (Testimony, Cahoon I).
2. The Petitioner is a member of the Barnstable County Retirement System. (Stipulation, FF 2, Cahoon I).
3. The Petitioner served in the role of Assistant Collector/Office Supervisor at the time of her rehiring in 1989. In this capacity, she was involved in the computer conversion to what was called "Arlington Data Systems". She did the conversion of all of the payroll records. She taught the hearing-impaired payroll clerk how to operate the system. (FF 3, Cahoon I, Exhibits 3 and 8 and Testimony, Cahoon I).
4. Sometime in late 1991, the Petitioner served as Acting Treasurer Collector after a staff change. She was offered the position on a permanent basis, but declined. She trained Nancy Thyng, the new Treasurer Collector, in the use of the computer systems, and, she was the back-up payroll person. (FF 4, Cahoon I and Exhibit 3 and Testimony, Cahoon I).
5. The Petitioner left employment with the Town of Brewster in 1996, and then moved back to the Cape approximately a year later. She was rehired by the Town of Brewster. At this time, her position was that of Assistant Collector/Office Supervisor. Nancy Thyng informed the Petitioner that the former would teach the latter the "Treasurer's side" of the office, but the Petitioner never received any training in how to perform the duties of Town Treasurer. (FF 5, Cahoon I).
6. The position of Town Treasurer in the Town of Brewster involves approximately 99% banking. The Petitioner has never acquired any experience in this component of the Treasurer/Collector's duties. (FF 6, Cahoon I and Testimony, Cahoon I).
7. In October 2003, Nancy Thyng gave her notice. The last day of Ms. Thyng's employment was the day that the tax bills were due. Therefore, due to the large volume of tax payments coming into the Treasurer/Collector's Office, the Petitioner did not have time to pursue training in the Treasurer's duties. She did receive instruction in the health insurance billing process. (Exhibit 3 and Testimony, Cahoon I).
8. On November 1, 2003, the Petitioner became the Acting Treasurer/ Collector in Brewster. The Petitioner was very involved in the payroll side of the position and not very involved with the banking side. The Petitioner worked closely with Lisa Souve, the Town Finance Director/Accountant, and the Assistant Treasurer, both of whom worked on the banking aspects of the office. During this period of time there were problems in the entire office with a planned computer payroll conversion. Stress levels were high among all staff members. The Petitioner was informed that there was no time for training as Treasurer at that time. She was told that an Assistant Collector with "treasurer skills" would be hired to assist her in the meantime. (FF 8, Cahoon I).
9. Training for both municipal Treasurers and Collectors takes place at UMass Amherst every August for one (1) week. The classes are taught by certified Treasurers or Collectors. After three (3) years of required classes, the student may sit for an examination in order to become certified. (FF 9, Cahoon I and Testimony, Cahoon I).
10. In March 2004, the Petitioner was offered, and accepted, the position of Treasurer Collector on a permanent basis. The Petitioner was appointed for a three (3) year term to expire on March 1, 2007. Prior to her appointment, Charles Sumner, the Town Administrator, acknowledged that she was very strong in her "Collector" skills and not strong in the "Treasurer" skills. Both Mr. Sumner and Lisa Souve advised her to finish her classes in the "Collector" aspect of the position and take her test on that subject before she took any more "Treasurer" classes. She was informed that her priority was to get the new payroll system up and running. (Exhibits 3 and 5, Cahoon I).
11. The written job description for the position "Town Treasurer/Collector" in Brewster includes: Definition:
Responsible and complex professional, administrative and supervisory work planning, coordination and directing the financial and administrative activities of the Town Treasury; managing the Town's investment program;borrowing of money and the preparation of periodic and annual financial reports; collecting Town receivables and all related work as required.
Works under the administrative direction of the Town Administrator, with duties and responsibilities as defined by the Board of Selectmen, the General laws, and Town bylaws.
Performs a variety of complex and highly responsible duties in the Administration of the Town's financial management, including disbursements and investments and methods which are related to municipal collections.
Supervises assigned employees.
Errors could severely hamper municipal operations and require extensive costs to correct and could seriously affect the public image of the department and the Town.
Examples of Work:
Discharges the statutory duties of Town Treasurer for the Town of Brewster with responsibility for distributing all municipal and local school funds, after approval by established authorities.
Is accountable for all monies of the Town of Brewster, both receivables and expenditures, as well as the investment of idle funds to cover payables. Deals with Massachusetts Bureau of Accounts regarding borrowing. Coordinates closely with the Town Accountant on the validation of reconciliations.
Knowledge, Ability and Skill:
Excellent verbal and written communication skills; familiarity with Massachusetts Municipal Finance Law. Working knowledge of the bond market and the collection of taxes. Skill in money management, including investments and borrowing funds. Working knowledge of data processing and its applications.
(FF 11, Cahoon I and Exhibit 5, Cahoon I).
12. The Petitioner was advised to hire an Assistant Collector/Office Supervisor as soon as possible, but that she could not choose a candidate who had already worked in the office and was known to the Petitioner. Instead, a Lisa Vitale was hired as the new Assistant Collector/ Office Supervisor in May 2004. She had prior experience and was well-versed in the Treasurer's functions. (FF 12, Cahoon I, Testimony and Exhibit 3, Cahoon I).
13. In or about May 2004, Lisa Souve became the Town Finance Director and was given direct supervisory authority over the Petitioner and the Treasurer/Collector's Office by Mr. Sumner. The Petitioner had reported directly to Mr. Sumner during the first two months of her appointment. (FF 13, Cahoon I).
14. Between May and July 2004, the Petitioner was closely involved with the program installation for converting the payroll system. She spent many hours working with the company representative in order to have the system in effect for July 1, 2004. Lisa Vitale handled the Treasurer, "banking" functions of the office. When July 1, 2004 rolled around, the system failed again. The payroll had to be re-entered into the old system in order for pay checks to issue. This task took many extra hours of work to accomplish. The stress levels among the staff were high again. (FF 14, Cahoon I).
15. Several months went by without an answer from the payroll conversion company about the successful implementation of its system and working out of any bugs. In March 2005, a new vendor was chosen. The conversion was not attempted for a third time until October 2005. Because of this, the October 2005 tax bills were issued two weeks late. (FF 15, Cahoon I).
16. In August 2005, the Petitioner attended the Massachusetts Treasurer Collector School at UMass Amherst, took the remaining two classes necessary for her certification as a Collector, and passed the test. She became a certified Collector. (FF 16, Cahoon I, Exhibit 5, Cahoon I and Exhibits 7, 10 and 14, Cahoon II).
17. In December 2005, the Petitioner was informed by Lisa Souve that the office staff in the Treasurer/Collector's Office was too involved in the work on balancing the bank statements. Ms. Souve admonished the Petitioner for this. The Petitioner was also told that she needed to work on becoming a certified Treasurer and to educate herself on those aspects of her position. Ms. Souve also criticized the way that the Petitioner and another staff member did the health insurance billing together. (FF 17, Cahoon I, Testimony and Exhibit 3, Cahoon I).
18. In early January 2006, the new payroll system finally went live. While the Petitioner was working on the bank statements, she asked Lisa Vitale to review some of the work. Ms. Vitale informed the Petitioner that Lisa Souve had stated that she was not to help with the banking any longer. (FF 18, Cahoon I,Testimony and Exhibit 3, Cahoon I).
19. The Petitioner and Lisa Souve had a conversation about the latter's instruction to Ms. Vitale. Ms. Souve apologized for not going to the Petitioner first, but then told the Petitioner that if she was "in the real world she would have been fired by now". Ms. Souve also told the Petitioner that she needed to perform much better if the latter wanted to be reappointed to the position the following March (2007). The Petitioner was told that if she had any questions, she needed to run them by Ms. Souve in the future. (Testimony and Exhibit 3, Cahoon I).
20. The Petitioner was very upset following the January 2006 conversation with Lisa Souve. She felt that she was being set up to fail; as, she had not taken the Treasurer courses and had little time to try and complete such the program for certification prior to March 2007. (Testimony and Exhibit 3, Cahoon I).
21. In or about January 2006, the Petitioner began to stress surrounding her job and the added pressure to get up to speed on the Treasurer's aspects same. She also had trouble focusing. (Testimony and Exhibit 3, Cahoon I).
22. In February 2006, the Petitioner remained determined to show Ms. Souve and Mr. Sumner that she could handle the stress and do an efficient job. She began to do more tasks on her own without relying on her staff. The bank statements were completed and handed over to the accounting office. There was a variance with one of the banks, and, per Ms. Souve, she waited to talk to the auditors. (FF 22, Cahoon I,Testimony and Exhibit 3, Cahoon I).
23. The Petitioner had always been of the belief that she, as an individual could not know everything, and, that the best way to get any task completed and working smoothly was to work together with office staff as a team. That way, she believed, each member of the team could do what he/she did best. She was distressed that Ms. Souve felt that she should be able to carry out all of the duties of her appointed position by herself, and, that she relied on her staff too much. As a result, the Petitioner felt that she was working in a "hostile workplace" where the person to whom she was required to report problems was the person who didn't seem to want her in the position. She was stressed and unhappy. (Testimony and Exhibit 3, Cahoon I).
24. In March 2006, the tax bills were mailed early, making the office work smooth and efficient. The Petitioner awaited word from the auditors regarding the February 2006 variance with the one bank. The tension between the Petitioner and Ms. Souve increased. The Petitioner found herself making errors, having trouble focusing on tasks at work and thinking that she was "losing it". She was frequently unable to remember how to do simple tasks. She lost files in her computer. (Testimony and Exhibit 3, Cahoon I).
25. In April 2006, the tax payments were coming in on a regular basis. These were posted to the computer and at the bank each day. The town continued to earn interest on the deposits. The auditors suggested that the Treasurer write a letter to the Town Accountant and write off the February 2006 variance. Ms. Souve could not decide what she wanted to do in her office concerning the variance, and, instructed the Petitioner to leave the variance until the following month. (FF 25, Cahoon I,Testimony and Exhibit 3, Cahoon I).
26. The Petitioner worked extra hours in early May 2006 and again in late May 2006. She took a two week vacation in the middle of that month. There was another variance following the issuance of a voided payroll check after the check had been issued to the wrong employee. The February 2006 variance was still held in abeyance by Ms. Souve. The Petitioner did not feel a less stressed after her vacation. (Testimony and Exhibit 3, Cahoon I).
27. June 2006 was a busy month in the Petitioner's office. Payroll rate changes were worked on in conjunction with the Selectmen's Office. The staff was also involved with the tax title and tax litigation processes. The new payroll system still had not worked as expected. The Petitioner was concerned that the payroll rates may not be changed in time, as the rates had not yet been received from the Selectmen, and, she informed Ms. Souve of same. (FF 27, Cahoon I, Testimony and Exhibit 3, Cahoon I).
28. In the spring and summer of 2006, the Town of Brewster had many temporary loans along with new debt issued. The Treasurer/Collector's Office was also involved in a bank conversion which did not go smoothly. (FF 28, Cahoon I, Testimony and Exhibit 3, Cahoon I).
29. As she had during the weeks that she was at work in May 2006, the Petitioner worked extra hours in early and late June 2006 and took a one week vacation in the middle of the month. Again, when she returned from her vacation, she was still stressed and having trouble focusing. She was unable to remember simple tasks, she made errors, and she felt that she was "losing it." She became concerned that some larger health issue was going on. (Testimony and Exhibit 3, Cahoon I).
30. On July 3, 2006, the Petitioner found her stress levels unbearable and was experiencing great pressure to succeed in her job. She went to her physician's office where she saw Janice Harrison, RN-C, MSN, ANP. She indicated to Ms. Harrison that she was overwhelmed with stress from her job and had developed diarrhea and sleeping difficulties. She was unable to control her emotions and could not stop shaking and babbling at that time. She reported that she was unable to retain any memory of how to work effectively and was making many errors on the job. Ms. Harrison provided her with a note that indicated she must take the remainder of the week off. The Petitioner was also given a prescription for a muscle relaxant in order to help her sleep at night. (FF 30, Cahoon I and Exhibit 8D, Cahoon II).
31. After she left the doctor's office on July 3, 2006, the Petitioner went directly to Mr. Sumner's office. She was shaking and crying as she informed him that she could no longer handle the stress and needed to step down as Treasurer/Collector due to the continued stress and pressure and hostile workplace. Mr. Sumner told her that they all knew she had been under stress. The Petitioner asked if she could step into the role of Assistant Treasurer/Collector. Mr. Sumner told her to take the next week, and, that they would "work things out". He also told her that he would talk to Lisa Souve about her absence. (FF 31, Cahoon I, Testimony and Exhibit 3, Cahoon I).
32. On July 5, 2006, the Petitioner called into her office and told Lisa Vitale what needed to be done on the payroll and CDs that were coming due. (FF 32, Cahoon I, Testimony and Exhibit 3, Cahoon I).
33. On July 6, 2006, the Petitioner went into her office to help the Assistant Treasurer with the health bill because the latter was unfamiliar with the computer program. The Petitioner was not able to function effectively and left without accomplishing much of anything. (FF 33, Cahoon I).
34. On July 10, 2006, the Petitioner saw Vincent Birbiglia, M.D. of Cape Cod Neurology, PC. She complained of cognitive problems for approximately a year and a half. Dr. Birbiglia noted that the Petitioner had been in a very stressful situation and that the question had arisen as to whether this was the cause of her memory problem. The doctor noted that the MRI and the mental status exams showed no abnormalities. Dr. Birbiglia prescribed Aricept and scheduled a spinal tap. (FF 34, Cahoon I and Exhibit 7, Cahoon I).
35. The Petitioner was seen by her physician, Peter M. McKay, M.D. on July 12, 2006. She was found to be in good physical health after a complete physical examination. An EKG on that date revealed a right bundle branch block. This was a change from her EKG two (2) years prior. Subsequent testing revealed no cardiac abnormalities. (FF 35, Cahoon I, Exhibits 3 and 4, Cahoon I).
36. On July 24, 2006, the day of her return to work, the Petitioner experienced diarrhea. She learned at that time that Lisa Souve was upset with her for not informing her of the leave of absence due to stress. The Petitioner had difficulty focusing at work and returned to her doctor's office. Janice Harrison told her that she should remain out of work until the stress level was eliminated. (Exhibit 8D, Cahoon II).
37. The Petitioner reported to work on July 25, 2006 in order to meet with Charles Sumner, Lisa Souve and a Jillian Douglas. At that time, the Petitioner was informed that she would not be put into the Assistant Treasurer/Collector's position, as her stress levels were detrimental to the entire office staff. She was informed that her options were: to resign and receive a letter of recommendation; or, be terminated. She was also advised to return to her physician to see how long she would need to be out of work.
During the same meeting, Lisa Souve informed the Petitioner that she had gone into the Petitioner's office while she was away and had been surprised to learn that the Petitioner had called in to her staff and given directions on what needed to be done. Ms. Souve then asked the Petitioner what her plan was for her office while she was out on leave. The Petitioner had no answer at that time. Ms. Souve was displeased. The Petitioner was confused and further stressed that, on the one hand, she was admonished for directing her staff while she was out, and, on the other hand, she was admonished for not having a plan to direct them. Both Mr. Sumner and Ms. Souve suggested that the Petitioner use sick time and apply to the sick bank for additional sick days. The Petitioner went out on medical leave and stayed out of work through December 2006. (Testimony and Exhibit 3, Cahoon I).
39. The Petitioner began seeing LICSW Heidi Zimmerli in August 2006 for her anxiety symptoms. Ms. Zimmerli reported that the Petitioner's symptoms of insomnia, obsessive thinking, inability to concentrate, frequent headaches, loss of appetite, and chronic fatigue had all resulted from the chronic stress she experienced during the past three years with the Town of Brewster. Dr. Zimmerli noted that the Petitioner had been contracted to do a job that she was not entirely qualified to handle, and she had made that clear at the outset. Ms. Zimmerli added that, due to a series of acts and decisions made by others, the Petitioner wound up trying to do a job without the support promised to her by her supervisors. As a result, she became increasingly stressed to the point that she was no longer able to tolerate the stress and was now on medical leave. The Petitioner continued to see Ms. Zimmerli over the next several months. (FF 39, Cahoon I, Exhibit 6, Cahoon I and Exhibit 8E, Cahoon II).
40. On October 2, 2006, the Petitioner went to Dr. McKay's office and was placed on anti-depressant medication. She was not able to tolerate it at that time. (FF 40, Cahoon I and Exhibit 4, Cahoon I).
41. The Petitioner resigned from her position effective January 11, 2007. She has maintained that this was not a voluntary resignation, but rather a constructive termination. Just prior to her resignation, in December 2006, she had seen an advertisement for the position of Treasurer/Collector in Brewster. She knew that she would not be reappointed. (Exhibits 3 and 5 and Testimony, Cahoon I).
42. The Petitioner applied for accidental disability retirement benefits on January 16, 2007. As the medical reason for her application, she stated: After many, many months of stress overload, conflicts at work, resulting in a hostile work environment, unable to work effectively, memory loss, confusion, causing errors, unable to focus, emotional distress and also right bundle branch blockage of heart, unable to sleep with or without medication. (FF 42, Cahoon I , Exhibit 3, Cahoon I and Exhibit 5, Cahoon II).
43. Dr. McKay completed the Statement of Applicant's Physician. He reported that the Petitioner was disabled from her position due to anxiety and stress related to the job. In his narrative, Dr. McKay stated:
… She felt that she was given responsibilities that she was not properly trained for and her assistant was reassigned to another position. This then resulted in a large amount of pressure placed on Mrs. Cahoon. She felt that she was not helped in understanding her responsibilities and was denied the help to accomplish her duties. Because of her responsible nature, this created an overwhelming situation for this patient…
Considering her prolonged anxious state, she will not be able to perform her work, nor return to her previous situation…
(FF 43, Cahoon I, Exhibit 4, Cahoon I and Exhibit 6, Cahoon II).
44. On March 8, 2007, the BCRB denied the Petitioner's application on the basis that the actions of her employers constituted bona fide personnel actions and would not be considered the basis of a personal injury. No medical panel was convened. (FF 44, Cahoon I, and Exhibit 1, Cahoon I).
45. The Petitioner filed a timely appeal. (Exhibit 2, Cahoon I).
Additional Findings of Fact
Based upon the evidence submitted at the January 5, 2009 hearing, I hereby render the following additional findings of fact (Cahoon II):
46. Between 1999 and 2004, the Petitioner took several courses required for the certification as Town Treasurer. (Exhibits 10 and 14, Cahoon II).
47. In November 2003 at the time she applied for the position of Treasurer/Collector in the Town of Brewster, the Petitioner notified Charles Sumner that she planned to take the test for certification as a Collector in August 2004 and the test for certification as a Treasurer in August 2005. She also informed him that she had already taken some courses related to the Treasurer position. (Exhibits 9 and 14, Cahoon II).
48. During a visit to Dr. Peter McKay's office on July 12, 2004, the Petitioner complained of stress related diarrhea. The doctor prescribed Xanax. (Exhibit 8D, Cahoon II).
49. The Petitioner reported to Dr. McKay's office on July 3, 2006 complaining of stress at work. She explained that she found herself "angry and melting down". She indicated that the job was too stressful and that she was thinking of making a change. She also indicated that she developed diarrhea when her stress levels were high. She was prescribed Xanax and the muscle relaxant Flexeril. Mental health counseling was also suggested at that time. Janice Harrison, RN and ANP, wrote a note stating that it was recommended that the Petitioner stay out of work until her symptoms resolved. (Id.).
50. The Petitioner returned to Dr. McKay's office on July 10, 2006. She complained again of stress at work and added that she may try to stay in the system, but that she had decided to move on to a less stressful job. She stated that the Flexeril had helped her to sleep at night, but that she had not tried the Xanax. The Petitioner requested another note from the doctor's office stating that she was unable to work until her stress symptoms subsided. Ms. Harrison wrote a second note stating that it was recommended that the Petitioner stay out of work until her symptoms resolved. (Id.).
51. Janice Harrison's office noted from July 12, 2006 indicated that the Petitioner had developed a right bundle branch block in her heart. A Thallium stress test was set up. (Id.).
52. On July 24, 2006, the Petitioner reported to Janice Harrison that she had experienced a recurrence of diarrhea after her vacation. She reported that she was still experiencing tension at work, and that her boss was ignoring her. She was very upset and crying during the visit. She reported that she would think about mental health counseling. (Id.).
53. On July 25, 2006, the Petitioner told Ms. Harrison that, although she was under stress she thought it might be time to move forward. She indicated that she had been at her job for years and that she felt undervalued. She was afforded mental health counseling and again stated that she would think about it. (Id.).
54. The Petitioner and her husband saw Janice Harrison again on July 27, 2006. The Petitioner reported that she had diarrhea and was unable to sleep. She indicated that she had tried several times to meet with her boss to discuss issues and that he would not meet with her until July 25, 2006. She also stated that she had visited the BCRB and acquired accidental disability retirement forms. On this occasion, the Petitioner agreed to consult with a mental health professional. She was prescribed Melatonin and Flexeril. (Id).
55. The Petitioner saw Heidi Zimmerli, LICSW, for the first time on August 9, 2006. Ms. Zimmerli reported:
She is suffering from anxiety and depression due to a series of job-related stressors that have gone on for the past three years. She was contracted to do a job that she was not entirely qualified to handle, and she made that clear at the outset. Due to a series of acts and decisions made by others, Ms. Cahoon wound up trying to do the job without the support from her supervisors. As a result, she became increasingly stressed and is now on medical leave. Her symptoms include insomnia, obsessive thinking, inability to concentrate, frequent headaches, inability to make decisions, loss of appetite, and chronic fatigue. She feels betrayed by colleagues she has worked with for years. She also, paradoxically, feels that she should have been able to do the job, even though she made it clear from the beginning that she didn't have all the required skills and knowledge.
At the time of this appointment, the Petitioner was taking the medications Alprazolom for anxiety and the antidepressant Cyclobenzaprine for sleep. (Exhibit 8E, Cahoon II).
56. On October 2, 2006, the Petitioner saw Janice Harrison. Ms. Harrison reported that the Petitioner's therapist believed her to be experiencing anxiety and depression. The Petitioner indicated that she felt more anxious than depressed. The Petitioner was started on the medication Wellbutrin. (Exhibit 8D, Cahoon II).
57. In a letter dated October 10, 2006, Heidi Zimmerli informed Mr. Sumner that she was continuing to treat the Petitioner for anxiety and depression "resulting from the continuing stress caused by her employment with your organization and the additional stress caused by the uncertainty of her current status". (Exhibit 8E, Cahoon II).
58. On December 5, 2006, Heidi Zimmerli reported that the Petitioner continued in cognitive therapy. Ms. Zimmerli noted that the Petitioner's symptoms included insomnia, obsessive thinking, inability to concentrate, frequent headaches (three to four days a week), loss of appetite, and chronic fatigue. (Id.).
59. At the time she filed her application for Section 7 benefits in January 2007, the Petitioner had nine (9) years and ten (10) months of creditable service. When she inquired as to whether she should purchase eight (8) months of service in order to also apply for ordinary disability, she was told that it was unnecessary at that time because if her section 7 application were allowed, she would not need to be vested. The Petitioner did not purchase any service in January 2007.
60. On page 8 of the February 8, 2007 Statement of Employer, Linda Souve indicated in the section entitled "Occurrence of an Incident or Hazard NOT Related to the Applicant's Job Duties" that the "applicant previously sought marriage counseling. Spousal pressure regarding work hours/use of vacation time." Ms. Souve noted on page 4 that the employer was unaware of any incident or hazard related to the applicant's job duties. (Exhibit 7, Cahoon II).
61. The Petitioner and her husband were never in marriage counseling. (Testimony, Cahoon II).
62. On March 23, 2007, Dr. McKay reported:
…has been a patient of this practice since 2001. She exhibited extreme stress when she presented to our office on 7/3/2006. She was under unusual stress at work. She was forced to resign from her duties and has only recently responded to medication for her problem of high anxiety.
In the time I've known Ms. Cahoon, she has always been a confident person. Her experience over the months prior to 7/06 has been life- changing for her. She will be soon undergoing (sic) neuropsychological evaluation to see if she suffered damage other than depression and anxiety.
(Exhibit 8D, Cahoon II).
63. The Petitioner was evaluated by psychologist David M. Presnall, Ph.D. on April 7, 2007. He had been asked to evaluate her cognitive and emotional functioning and to assess any particular evidence of memory impairment or other difficulty in cognitive processing. To these ends, he administered a battery of tests. He also conducted a clinical interview.
During the interview, the Petitioner reported that she "has struggled with functions involving number use and accounting, a problem which haunted her at her previous job." The Petitioner informed Dr. Presnall that, under renewed stress, she continued to have periodic headaches, diarrhea and stomach cramping. She added that she could become quite emotional and fall apart.
Dr. Presnall did not find any indication that the Petitioner has Attention Deficit Disorder. Her intelligence tests were all in the average range. The tests of short term memory function revealed deficits, particularly on tasks that required auditory retention over time. Dr. Presnall believed that this weakness indicated a problem with auditory memory and data retention. Dr. Presnall also found the Petitioner to be weak in visual motor planning and figure-part integration. The tests also indicated a weakness in math functions involving fractions, percentages and value conversions.
The Petitioner admitted to increased irritability, difficulty making decisions and a general lack of self confidence. She acknowledged that she was often self critical. She stated that she sometimes thought of herself as insecure and that it was scary to fail at something.
Dr. Presnall concluded that the Petitioner was experiencing emotional stress from past traumatic events and tended to be easily overwhelmed, prone to excessive worry and anxiety and vulnerable to significant mood swings. He thought that her emotional state was partially responsible for her cognitive problems. He advised that she continue in outpatient mental health counseling in an effort to process and work through various thoughts and attitudes which created stress for her and consider a change of venue, avoid sources of continued stress, and involve herself in activities which she finds meaningful and rewarding. (Exhibit 8C, Cahoon II).
64. The Petitioner and her husband moved to Virginia in late 2007. (Testimony, Cahoon II).
65. The Petitioner was examined by Neurologist Vincent P. Birbiglia, M.D. on June 11, 2007. The neurological examination was normal. The doctor found no evidence of dementia. He reported that stress was the reason for "pseudo dementia" in the patient. (Exhibit 8B, Cahoon II).
66. A regional medical panel comprised of three psychiatrists evaluated the Petitioner on February 19, 2008. Drs. James Greenblatt, Irine Guryanova and Suzanne Stoterau answered the certificate ""yes, yes, yes". (Exhibit 12, Cahoon II).
67. In the panel narrative, the doctors indicated that the Petitioner believed that the stress-related problems began around the time of her promotion to Treasurer/ Collector as she had a protracted gynecological infection and a D&C procedure at that time. The Petitioner also reported that she had no psychiatric history before the onset of her stress symptoms in 11/03. She informed the medical panel that she a taken a job as a cafeteria worker a month before the exam, and that she felt she could handle this work because "it doesn't have to do with numbers." (Id.).
68. The panel's mental status exam showed anxiety, difficulty with concentration, attention and the ability to do simple math. The primary diagnoses were: Major Depressive Disorder, Generalized Anxiety Disorder and Attention Deficit Disorder. The panel doctors reported that there was no clear evidence that she would recover the level of functioning that she enjoyed before 2003.
The panel's CONCLUSION included the following:
Mrs. Cahoon suffers from GAD, ADD and has the above medical complaints (irritable bowel syndrome, tension headaches, migraines, psoriasis…) which are exacerbated by her psychiatric status. There is a suggestion in the record that she was anxious and had ADD symptoms as a child. However, she functioned well without treatment for these conditions until a series of events occurred in her workplace that led to a major depressive episode and exacerbation of her mild baseline symptoms. Her major depressive episode has resolved with therapy and her current medications but concentration and memory remain problematic. The etiology of her cognitive complaints is unclear, but it is clear that her memory and concentration have declined subsequent to a series of stressful events in her workplace. Her incapacity is related to the personal injury in the workplace on account of which retirement is claimed. As above, Mrs. Cahoon functioned well until 12/05 when work stress increased and she became more symptomatic…With ongoing work stress, her mood and cognitive symptoms continued to decline until she was incapacitated and sought medical treatment in 7/06. (Id.).
69. The BCRB denied the Petitioner's Section 7 application on September 24, 2008. (Exhibit 1A, Cahoon II).
70. The Petitioner filed a timely appeal. (Exhibit 2A, Cahoon II)
71. The BCRB granted the Petitioner a Section 6 (ordinary disability) retirement in September 2008. At that time, the Petitioner purchased two month of service. She was informed that she would lose twenty five thousand ($25,000) dollars if she were to purchase all of her member service and that it was in her interests to purchase the two months. She did so on October 11, 2008. (Testimony, Cahoon II).
72. On November 5, 2008, in response to an inquiry from the Petitioner, the BCRB denied her request to change her ordinary disability retirement date to the date that she applied for accidental disability retirement. (Exhibit 1A, Cahoon II).
73. The Petitioner appealed the BCRB decision regarding her Section 6 retirement date. (Exhibit 2B, Cahoon II).
In order to receive accidental disability retirement benefits under G.L. c. 32, § 7, an applicant must establish by a preponderance of the evidence, including an affirmative medical panel certificate, that she is totally and permanently incapacitated from performing the essential duties of her position as a result of a personal injury sustained or hazard undergone while in the performance of her duties. The medical panel's function is to "determine medical questions which are beyond the common knowledge and experience of the local board (or Appeal Board)." Malden Retirement Board v. CRAB, 298 N.E. 2d 902, 1 Mass. App. 420 (1973). Unless the panel employs an erroneous standard or fails to follow proper procedures, or unless the certificate is "plainly wrong," the local board may not ignore the panel's medical findings. Kelley v. CRAB, 341 Mass. 611, 171 N.E. 2d 277 (1961).
In this case, the certificate of the medical panel is "plainly wrong." While I concluded in Cahoon I that the Petitioner had made out a threshold case that she had sustained a personal injury and was entitled to a medical panel examination, after a careful review of all of the testimony and medical records in this case which were not in the record in the first appeal, I have concluded that the Petitioner is not entitled to prevail in this appeal. She has not met her burden of proving either: that she sustained a compensable personal injury within the meaning of G.L. c. 32, § 7(1); or, that her disability is such as might be the natural and proximate result of an accident or hazard undergone on account of which retirement is claimed.
It is a well-established principal in retirement law that G. L.c. 32 s. 7(1) shares with the Workers' Compensation statute the definition of a "personal injury" which excludes any "mental or emotional disability arising principally out of a bona fide personnel action…except such action which is the intentional infliction of emotional distress." (Emphasis added). See Zavaglia v. CRAB, 345 Mass. 483 (1963) and Sugrue v. CRAB, 45 Mass. App. Ct. 1 (1998) for this proposition. The Sugrue Court was aware of the legislative change in 1986 wherein the Chapter 152 s. 1(7A) definition of "personal injury" was amended to include the words "within the meaning of this chapter" when said Court stated "[w]e observe, however, that it has been long recognized both well before and after 1986 that the language of Chapter 32 s. 7(1) should be interpreted in harmony with Chapter 152." Sugrue, supra at page 4. CRAB has followed this line of reasoning in recent years, as well. See Barnstable County Retirement Board and Richard Morrison v. CRAB, Mass. App. Ct. No. 00-P-0816 (2002).
The Petitioner has averred that she was set up to fail in her role as Treasurer/ Collector. In effect, she has contended that she was the victim of a subtle campaign of harassment during at least two of the three years that she held the position before she left work for the last time. She has contended that the May 2004 appointment of Ms. Souve as Finance Director and her de facto supervisor served in establishing a hostile work environment wherein the Petitioner was unable to perform her duties as she saw fit, including her relying on staff members who had more skills than she herself in certain areas. However, the appointment of Lisa Souve to the position of Finance Director was a bona fide personnel action by the Town of Brewster. It occurred a mere three months after the Petitioner's appointment to her position. While Ms. Souve's appointment and the subsequent change in the chain of command took the Petitioner out of her comfort zone, there is no evidence that this appointment or the reorganization of the Treasurer's office and her accountability was made with any intention of inflicting emotional distress upon the Petitioner. The Petitioner has not demonstrated any intentional infliction of emotional distress by Ms. Souve or Mr. Sumner.
It should be noted here that the record reflects that the Petitioner was experiencing stress from the onset of her tenure as Treasurer Collector in the year 2004. Many of the medical records indicate that she felt work stress for a three year period. She herself reported to the medical panel that she began her appointment while she had an infection and felt stress as a result of those factors. The computer conversion created stress. Adherence to deadlines created stress. Variances created stress.
Another important factor to consider is that the Petitioner has always had trouble with certain types of math problems. She knew this going into the role of Treasurer/ Collector. In her November 2003 letter to Mr. Sumner prior to her appointment, a document that was not included in the record in Cahoon I, the Petitioner informed Mr. Sumner that that she had taken some courses toward her certification as a Treasurer and that she would pursue that certification. There is no mention of her needing skilled support staff in that aspect of the job in order to perform the function properly effectively. While the Petitioner performed in the role of Collector/Treasurer somewhat effectively with staff assistance during the early part of her term, including the payroll conversion, she began to experience more difficulties when additional expectations were placed on her to exercise a more independent role in the position to which she was appointed. It was not an intentional infliction of emotional distress to expect her to rely less on her staff and others with more Treasurer skills than she. Rather, it was a bona fide personnel decision on the part of her supervisors to hold her, the Treasurer/Collector, accountable to perform the essential, required functions of the position as set forth in the job description. The Petitioner was weak in these areas. Her weaknesses came to light. The supervisors expressed displeasure and she experienced stress which she then categorized as a "hostile work environment."
There is no evidence that, apart from the annual August courses at UMass, the Petitioner ever volunteered to attend any courses or on-line trainings or purchase any books on the Treasurer aspects of the job. She did not attempt to alleviate her own stress levels. Rather, she holds Ms. Souve and Mr. Sumner solely accountable for her not being fully able to perform that side of the job that she willingly undertook. Further evidence of the Treasurer/Collector job being a poor fit for her may be found in her statement to the medical panel that she could handle a recent job she had taken in Virginia because she "did not have to work with numbers."
The Petitioner has attempted to support her assertions with only non-specific testimonial evidence that is more reflective of her own difficulties with self esteem and her skewed perceptions of events going on around her than any objective indication of a campaign to harass her or force her out of her position. It is also noteworthy that, because she was so overwhelmed by the expectations that she herself perform the all of duties of her official position, in July 2006, the Petitioner asked to be placed back in her former position, Assistant Treasurer Collector, a role in which she felt far more comfortable.
The Petitioner's difficulties in performing all of the functions of the Treasurer/ Collector position, a position for which she, standing alone, was not fully qualified, and her tense relationship with Ms. Souve are not "identifiable conditions not common and necessary to all or a great many occupations." Blanchette v. CRAB, 20 Mass. App. Ct. 479 (1985). A certain degree of stress is inherent in a municipal financial office. Ergo, the Petitioner's dealings with staff and administration concerning her work conditions are not personal injuries within the meaning of Section 7(1) for this reason as well. Sugrue, supra.
The Petitioner has not supported her assertion that she had a gradual buildup of stress from and after Ms. Souve's assuming the role of her direct supervisor. The entire body of medical evidence, most of which was not offered during the hearing in Cahoon I, does not support the Petitioner's claim of a compensable work-related personal injury. She did not receive any treatment for headaches, stress or diarrhea through the second half of 2004, the entire year 2005 and the first several months of 2006 until July 3, 2006, the last day she worked. While she has claimed that her doctor's office did not take her problem seriously in July 2006, the record reflects that she was offered, but declined the services of a mental health professional until late July after several medical visits. The medical record does not support the assertion of a gradual buildup and eventual melt down due to stress. There are no references to work-related incidents leading up to or concurrent with the doctor's treatment of her mental health problems until after the Petitioner left work for the last time. There are no pre-August 2006 counselor's or therapy records. The reasonable inference here is that the Petitioner did not make any formal complaints to her superiors or health care providers concerning any identifiable physical or mental stress reaction(s) in herself following any of the incidents or encounters which she described in her testimony until she stopped working in July 2006. It is also noteworthy that it was after she learned that she must resign or be terminated that the Petitioner began the accidental disability application process.
For the foregoing reasons, the Petitioner's experiences as Treasurer/Collector and her dealings with her supervisors in the Town of Brewster are not compensable personal injuries within the meaning of either Section 7(1) of the retirement statute or Section 1(7A) of the workers' compensation statute. Sugrue, supra and Kelly's Case, 394 Mass. 684 (1985).
The decision of the BCRB denying her application for accidental disability retirement benefits is affirmed.
As for the Petitioner's claim that she is entitled to an earlier retirement date, she did not have ten years of service at the time that she filed for Section 7 benefits in January 2007. She chose to wait for the outcome of the Section 7 appeal. Then, in late 2008, based upon the advice of the board's agent, the Petitioner opted not to "lose a full twenty five thousand ($25,000) dollars" by purchasing all of her prior service. This was an informed choice over which she had complete responsibility. There is no dispersion that can be cast upon the board. The BCRB's determination of the Petitioner's ordinary disability retirement date is affirmed.
Division of Administrative Law Appeals,
DATED: July 24, 2009
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