COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

City of Holyoke,

Petitioner

v. Docket No. CR-07-949

Holyoke Retirement Board,

Respondent

Appearance for Petitioner:

Albert R. Mason, Esq.

Law Office of Albert R. Mason
145 Springfield Street
Chicopee, MA 01013

Appearance for Respondent:

Thomas F. Gibson, Esq.

Law Offices of Thomas F. Gibson
2400 Massachusetts Ave.
Cambridge, MA 02140-1854

Administrative Magistrate:

Kenneth J. Forton, Esq.

DECISION ON RESPONDENT'S MOTION TO DISMISS AND ORDER OF DISMISSAL

The Petitioner, City of Holyoke, timely appeals, pursuant to G.L. c. 32, § 16(4), the Holyoke Retirement Board's failure to appoint a medical panel pursuant to an application for involuntary accidental disability retirement that Fire Chief David LaFond filed on behalf of Lt. Camille Theriaque. The Respondent, Holyoke Retirement Board, has moved to dismiss the appeal as moot.

The City elected to waive a hearing on both the motion to dismiss and a hearing on the merits, and has elected instead to proceed on written submissions pursuant to 801 CMR 1.01(10)(c). On October 26, 2007, the City submitted proposed exhibits. (Petitioner's Exs. A-H) On April 30, 2008, the Board filed its motion to dismiss along with nine exhibits. (Respondent's Exs. 1-9) On June 25, 2008, the City filed a written opposition to the motion. The City also filed a very brief motion for summary decision, requesting what is essentially a declaratory judgment that the Board acted improperly by tabling Chief LaFond's involuntary retirement application without first convening a medical panel.

FINDINGS OF FACT

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

1. Camille Theriaque worked for the City of Holyoke Fire Department from April 17, 1990 to April 23, 2008. Lt. Theriaque was appointed a Lieutenant in November 2003.

2. In 2003, Lt. Theriaque was diagnosed with chronic myelogenous leukemia (CML). Lt. Theriaque continued to work until early 2006, when she stopped working and began to receive the benefits provided under G.L. c. 41, § 111F.

3. On June 14, 2007, the Board received an involuntary retirement application filed by Fire Chief David LaFond on behalf of Lt. Theriaque.

4. On July 6, 2007, the Board received an application for disability retirement from Lt. Theriaque.

5. On July 23, 2007, the Board voted to petition the Public Employee Retirement Administration Commission (PERAC) to convene a medical panel for Lt. Theriaque.

6. On two occasions, August 16, 2007 and October 11, 2007, the Board voted to table the involuntary retirement application filed by Chief La Fond until the Board acted upon the application filed by Lt. Theriaque.

7. On October 26, 2007, Chief LaFond timely appealed the Board's decision to table the involuntary retirement application.

8. On November 8, 2007, PERAC informed the Board that it had selected a medical panel and scheduled an examination of Lt. Theriaque for December 19, 2007.

9. On February 14, 2008, the Board voted to grant Lt. Theriaque's application for accidental disability retirement.

10. PERAC approved the Board's vote, and Lt. Theriaque was subsequently retired for accidental disability effective April 23, 2008.

CONCLUSION AND ORDER

The Respondent's Motion to Dismiss is granted. A medical panel was convened for Lt. Theriaque on November 8, 2007, and she was subsequently retired from the City of Holyoke Fire Department on April 23, 2008. As there is nothing of substance left to litigate, the appeal is moot and is, therefore, dismissed.

G.L. c. 32, § 16(1) provides department heads with the power to request involuntary retirement of any of their employees for superannuation, ordinary disability or accidental disability. G.L. c. 32, § 7 allows members of the retirement system to request accidental disability retirement if they are injured while in the performance of their duties, they are subsequently unable to perform the essential duties of their jobs as a result of the injury, and such disability is likely to remain permanent before reaching retirement age.

The instant case presents an anomalous set of circumstances. The Board was presented with two applications for the accidental disability retirement of the same member, a voluntary accidental disability application from Lt. Theriaque herself and an involuntary accidental disability application from Chief LaFond.

The Board argues that the appeal is now moot because a medical panel was convened for Lt. Theriaque, and her retirement application was subsequently approved. The City of Holyoke opposes the motion, arguing that the Board has not fulfilled its obligation to petition PERAC, pursuant to 840 CMR 10.08, for a medical panel examination of Lt. Theriaque pursuant to Chief LaFond's involuntary application. The City admits that convening a medical panel, now that Lt. Theriaque is retired, would be perfunctory and redundant; the City insists, nonetheless, that this tribunal issue an order stating "The City of Holyoke Retirement Board acted improperly by denying Chief LaFond's application for an involuntary accidental disability retirement for Lt. Camille Theriaque without first convening a medical panel. The member involved has been granted a retirement so, [sic] no remedy is needed or appropriate."

It is well settled law that Massachusetts courts and other judicial tribunals do not decide questions which have become moot. Vigoda v. Superintendent of Boston State Hosp., 336 Mass. 724, 725 (1958) ("That this court does not decide questions which have become moot is so well settled that a citation or two will suffice."); Henderson v. Mayor of Medford, 321 Mass. 732, 734 (1947); Hubrite Informal Frocks, Inc. v. Kramer, 297 Mass. 530, 534 (1937) ("The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it."). This principle has been followed in this forum and, as well, by the Contributory Retirement Appeal Board. See, e.g., Myrick v. Teachers' Retirement Bd., CR-96-013 (DALA dec. 3/11/97; CRAB dec. 8/1/97) ("[I]t is the opinion of this Board that the threshold question of whether or not an applicant's physician's statement is adequate to support the impaneling of a medical panel in the first instance becomes moot upon the subsequent impaneling of a medical panel."); Town of Wilmington v. Middlesex Retirement Bd., CR-99-821 (DALA dec. 8/28/00; no CRAB dec.) (appeal of retirement board's decision to table involuntary retirement application dismissed as moot where member retired prior to issuance of decision).

The parties agree that Lt. Theriaque is currently retired and has been so since April 23, 2008. Chief LaFond filed his involuntary application on behalf of Lt. Theriaque, hoping that her accidental disability retirement would be approved. That goal has been achieved. Therefore, just as in Town of Wilmington, cited above, this appeal is moot. Any decision on the merits of this case, or on the propriety or impropriety of the Board's actions or inactions, would be purely academic.

For the above-stated reasons, the Respondent's Motion to Dismiss is granted pursuant to 801 CMR 1.01(7)(g)(3), and Petitioner's Motion for Summary Decision is denied pursuant to 801 CMR 1.01(7)(h). This appeal is, therefore, dismissed with prejudice.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Kenneth J. Forton
Administrative Magistrate

DATED: 7/31/08


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