COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Jacqueline Ouelette,

Petitioner

v. Docket No. CR-08-219

Haverhill Retirement Board
and
Public Employee Retirement
Administration Commission
("PERAC"),

Respondents


Appearance for Petitioner:

Joseph G. Sandulli, Esq.

Sandulli Grace
One State Street
Boston, MA 02109

Appearance for PERAC:

Derek Moitoso, Esq.

PERAC
5 Middlesex Avenue, 3rd floor
Somerville, MA 92145

Appearance for Haverhill RB:

Michael Sacco, Esq.

285 College Highway
PO Box 479
Southampton, MA 01073

Administrative Magistrate:

Maria A. Imparato, Esq.

SUMMARY OF DECISION

PERAC was correct to employ the 75% limitation in G. L. c. 32, s. 7(2)(a)(ii) because the Petitioner was not continuously a member in service from January 1, 1998 to the date her accidental disability retirement allowance became effective on February 14, 2005.


DECISION

Jacqueline Ouelette filed a timely appeal under G. L. c. 32, s. 16 (4) of the March 24, 2008 decision of the Public Employee Retirement Administration Commission ("PERAC"), to apply the 75% limitation contained in G. L. c. 32, s. 7(2)(a)(ii) to her accidental disability retirement allowance. (Exs. 1, 2)
I held a hearing on September 30, 2008 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston.
I admitted documents into evidence. (Exs. 1 - 16) I marked the joint pre-hearing memorandum "A" for identification, and Attorney Sacco's letter of September 19, 2008 "B" for identification. The Petitioner testified on her own behalf. John Boorack, a Senior Actuarial Analyst, testified on behalf of PERAC. There is one tape cassette of the hearing.

The record remained open to October 30, 2008 for the filing of briefs.

FINDINGS OF FACT

1. Jacqueline Ouellette, d.o.b. 3/17/1957, worked as a police officer for the City of Haverhill from January 1981 until December 5, 2003. She retired for superannuation effective December 31, 2003. (Exs. 3, 4, 5)

2. Starting in 2000, Ms. Ouellette worked with sexual assault cases, domestic abuse cases and cases involving sex offenders. In October 2002 she transferred to the information technology department where she worked until her retirement. (Ex. 6)

3. On or about August 14, 2005, Ms. Ouellette filed an application for accidental disability retirement benefits citing post traumatic stress disorder (PTSD) as the result of two incidents that occurred in or about November 2003: she learned that a sexual assault victim had committed suicide; and she learned that there would be a retrial of a case involving a girl who was sexually abused by a priest. (Ex. 5)
4. Ms. Ouellette was evaluated by a single-physician regional medical panel in October and November 2005. The panel majority certified in the affirmative to the existence of a disability and the likelihood of its permanence, and in the negative with respect to causation. One panel member answered in the affirmative to all three certificate questions. (Exs. 6)

5. One member of the medical panel majority, Michael Rater, M.D., diagnosed psychotic disorder not otherwise specified; mood disorder not otherwise specified; and rule out Factitious Disorder. (Ex. 6)

6. The Haverhill Retirement Board ("Board") asked Dr. Rater to clarify his opinion with respect to Factitious Disorder, and to state whether it was medically possible that Ms. Ouellette's permanent incapacity could be the result of her claimed personal injury or hazard undergone. (Ex. 9)

7. Dr. Rater opined in September 2006, "Despite my skepticism of Mrs. Ouellette's story and my belief that there is a high likelihood that she is Malingering, it is medically possible that she has a pre-existing psychiatric condition, such as trauma from sexual abuse, that she refuses to disclose for personal reasons, that was exacerbated by her workplace exposure to traumatic material. … I believe it is more likely that she is malingering, but it is medically possible that she is not." (Ex. 7)

8. Based on Dr. Rater's response, the Board believed it had a panel majority answering in the affirmative to all certificate questions, and voted to award accidental disability retirement benefits to Ms. Ouellette, contingent on PERAC approval. PERAC remanded the matter to the Board for further proceedings. (Ex. 9)

9. On February 7, 2007, Ms. Ouellette's counsel wrote to the Board indicating that new evidence had come to light during Ms. Ouellette's treatment sessions with a psychiatrist, Greg. R. Thompson, M.D., indicating that Ms. Ouellette had suffered childhood sexual abuse. Ms. Ouellette's counsel requested that the Board petition PERAC for a new medical panel to evaluate Ms. Ouellette for her accidental disability retirement claim. (Exs. 8, 9,10,11)

10. Ms. Ouellette was evaluated by a new regional medical panel on September 28, 2007. The panel answered unanimously in the affirmative to all certificate questions. Ms. Ouellette was retired for accidental disability effective February 14, 2005. (Exs. 12, 15)

11. PERAC determined that Ms. Ouellette's accidental disability retirement allowance should be subject to the 75% cap provided for in G. L. c. 32, s. 7 (2) (a) (ii). (Exs. 1, 13, 14)

12. Ms. Ouellette appealed PERAC's ruling. (Ex. 2)

13. By letter of March 3, 2008, the Board requested that PERAC reconsider its decision to implement the 75% cap provided for in G. L. c. 32, s. 7 (2) (a) (ii). (Ex. 16, "B")

14. When Ms. Ouellette began receiving a superannuation retirement allowance on December 31, 2003, she became a member inactive under the provisions of G. L. c. 32, s. 3 (1) (ii).

CONCLUSION AND ORDER

Ms. Ouellette's accidental disability retirement allowance is subject to the 75% cap provided for in G. L. c. 32, s. 7 (2) (a) (ii) because Ms. Ouellette was not continuously a member in service from January 1, 1988 until her accidental disability retirement allowance became effective on February 14, 2005.

G. L. c. 32, s. 7 (2) (a) (ii) provides that the amount of an accidental disability retirement allowance shall be equal to a "yearly amount of annuity equal to the yearly amount of the regular life annuity specified in clause (i) of Option (a) of subdivision (2) of section twelve," and "a yearly amount of pension equal to seventy-two per cent of the annual rate of his regular compensation on the date such injury was sustained or such hazard was undergone, or equal to seventy-two per cent of the average annual rate of his regular compensation for the twelve-month period for which he last received regular compensation immediately preceding the date his retirement allowance becomes effective, whichever is greater."

The section further provides that "for any employee who was not a member in service on or before [January 1, 1988] or has not been continuously a member in service since that date, the total yearly amount of the sum of such pension and the annuity …shall not exceed seventy-five per cent of the annual rate of regular compensation as determined in this paragraph." (emphasis supplied)

Under the provisions of G. L. c. 32, s. 3 (1) (i), a member in service is a member who is regularly employed in the performance of his duties.
Under G. L. c. 32, s. 3 (1) (ii), a member inactive is any "member in service who has been retired and who is receiving a retirement allowance."

When the Petitioner retired for superannuation on December 31, 2003, she became a member inactive. She therefore has not been continuously a member in service from January 1, 1988 to February 14, 2005 and is subject to the 75% cap cited above.

The Petitioner argues in her brief that the 75% limitation should not apply to her, citing the cases of State Retirement Board v. Contributory Retirement Appeal Bd., 12 Mass. App. Ct. 306 (1981) (the "Olson case"), and Leal v. Contributory Retirement Appeal Bd., 42 Mass. App. Ct. 330 (1996).

These cases are inapposite. The cases hold that a government employee who is a member in service at the time of an on-the-job injury may apply for accidental disability benefits, notwithstanding that the employee had previously applied for and had received superannuation retirement benefits.

In accordance with these cases, the Petitioner was permitted to apply for and receive accidental disability retirement benefits after she had retired for superannuation because it is "the employee's status at the time of [the] accident that determines eligibility under G. L. c. 32, s. 7 (1)." 42 Mass. App. Ct. at 332, citing the Olson case.

The instant case presents an entirely different issue. In accordance with the plain language of section 7 (2) (a) (ii), the Petitioner is subject to the 75% limitation because she was not continuously a member in service from January 1, 1988 to the effective date of her accidental disability retirement.
The decision of PERAC is affirmed.


SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

____________________________________________
Maria A. Imparato
Administrative Magistrate

DATED:8/11/09