COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS


Appeal of:

Donald Rogers, CR-07-15


Petitioner

v.

Northampton Retirement Board,

Respondent


Appearance for Petitioner:

John Connor, Esq.


Moriarty and Connor, LLC
101 State Street, Suite 501
Springfield, MA 01103

Appearance for Respondent:

James H. Quirk, Jr., Esq.


P.O. Box 268
Yarmouthport, MA 02675


Administrative Magistrate:

Joan Freiman Fink, Esq.


DECISION


Pursuant to G.L. c. 32 §16(4), the Petitioner, Donald Rogers, is appealing the December 21, 2006, decision of the Respondent, Northampton Retirement Board, establishing the effective date of his retirement as May 26, 2006 (Exhibit 10). 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 May 19, 2008 at the offices of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA. Various documents were entered into evidence at the hearing (Exhibits 1 -14). 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 Parties offered oral argument in lieu of testimonial evidence. One cassette tape recording was made of the hearing. The record in this case was left open until June 19, 2008 for the filing of written closing memoranda.


FINDINGS OF FACT

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


1. The Petitioner, Donald Rogers, commenced employment as a heavy motor equipment operator with the City of Northampton Department of Public Works on March 17, 2000 (Exhibit 12).


2. The Petitioner was injured at work on February 15, 2005 and has not worked since that date (Exhibit 7).


3. The Petitioner received sick leave benefits until the end of November of 2005 when he exhausted his accumulated sick leave reserve (Exhibit 7).


4. On March 10, 2005, the Petitioner commenced receiving workers' compensation benefits. He was paid workers' compensation benefits through May 26, 2006, at which time he received a lump sum settlement (Exhibit 1).


5. For the period of December 1, 2005 through May of 2006, the Petitioner used the money that he received from workers' compensation to purchase sick time. The Petitioner signed over to his employer a workers' compensation check in the amount of approximately $700.00. He was then credited with an amount of sick leave equal in value to the workers' compensation payment or approximately 50 hours of sick leave benefits which he received on a one day basis for each two week pay period (Exhibit 7).
6. By receiving one day of sick pay for each two week pay period until May of 2006, the Petitioner remained on the active payroll during the period of December of 2005 through May 25, 2006 (Exhibit 7).


7. During that six month period while on the active payroll, the Petitioner continued to accrue vacation and sick time. By using the combination of the accrued vacation and sick time as well as the fifty hours of sick time he purchased, the Petitioner was able to cover the cost of his health insurance premiums (Exhibit 7).


8. The Petitioner filed an application for accidental disability retirement on September 16, 2005. This application was approved by the Northampton Retirement Board on April 15, 2006 with an effective retirement date of May 26, 2006 (Exhibit 1).


9. On October 3, 2006, the Northampton Retirement Board wrote to the Public Employee Retirement Administration Commission seeking a request for an opinion as to the effective date of the Petitioner's retirement (Exhibit 7).


10. On October 11, 2006, the Petitioner's counsel, John Connor, Esq., wrote to the Northampton Retirement Board requesting that Mr. Rogers's retirement date be changed to the fall of 2005 (Exhibit 6).


11. On December 13, 2006, PERAC responded to the Board's request stating that the Petitioner's effective date of retirement was May 26, 2006 as he continued to receive regular compensation until May 25, 2006 (Exhibit 9).


12. On December 10, 2006, the Northampton Retirement Board sent the Petitioner formal notification that the effective date of his retirement was May 26, 2006 (Exhibit 10).


13. On December 27, 2006, the Petitioner filed a timely appeal of this decision with the Contributory Retirement Appeal Board (Exhibit 11).


CONCLUSION


After reviewing the evidence presented in this matter, I conclude that the Petitioner is entitled to prevail in his appeal. His effective retirement date should be November 30, 2005.


G.L. c. 32 § 7(1), Conditions for Allowance, provides as follows:
Any member in service…shall be retired for accidental disability as of a date which shall be specified in such application and which shall be not less than fifteen days nor more than four months after the filing of such application but in no event later than the maximum age for his group.

Section 7(1) must be read in conjunction with G.L. c. 32 §7(2), which provides as follows:
Upon retirement under the provisions of this section a member shall receive an accidental disability retirement allowance to become effective on the date the injury was sustained or the hazard on account of which he is being retired was undergone, or on the date six months prior to the filing of the written application for such retirement with the board and his respective employer, or on the date for which he last received regular compensation for his employment in the public service, whichever date last occurs (emphasis supplied).

In this case, the Petitioner last received regular compensation at the end of November of 2005, the date his accrued vacation and sick leave benefits were exhausted.
The payments made to the Petitioner after November 2005 and before May 26, 2005 were not true sick leave benefits but rather a return of the Petitioner's own money in the form of health insurance premiums. As such, these payments do not qualify as regular compensation. They were not related to Mr. Rogers' services rendered or work performed for his employer. Regular compensation is defined in G.L. c. 32 §1 as:
Salary, wages or other compensation in whatever form, lawfully determined for the individual service of the employee by the employing authority, not including bonus, overtime, severance pay for any and all unused sick leave, early retirement incentives, or any other payments made as a result of giving notice of retirement…

In this case, no sick leave payments were made to the Petitioner for the "individual service of the individual." Rather, the sick leave benefits in question here were actually purchased by the Petitioner. Mr. Rogers's sole purpose in purchasing these sick leave benefits was to provide a mechanism for his employer to pay his monthly health insurance premiums while his application for accidental disability retirement benefits was pending. The payments in question did not constitute a remuneration for services actually rendered or payment of accrued sick leave.


Similarly workers' compensation benefits are excluded from the definition of regular compensation. In Boston Association of School Administrators & Supervisor v. Boston Retirement Board, 383 Mass. 336, 341 (1981), the Supreme Judicial Court held that workers' compensation is not paid for the individual service of the employee but instead is paid only where the employee cannot perform any service due to injury. It is neither a salary nor a wage and is therefore not "remuneration geared to work or services performed." Zelesky v. Commission of Division of Public Employee Retirement Administration, 30 Mass. App. Ct. 106, 110 (1991).


The decision of the Northampton Retirement Board is hereby reversed. In accordance with the provisions of G.L. c. 32 §7 (2), the Petitioner's effective retirement date is November 30, 2005, the last date that he received regular compensation.


SO ORDERED.


DIVISION OF ADMINISTRATIVE LAW APPEALS


Joan Freiman Fink
Administrative Magistrate

Dated: 7/31/08


This information is provided by the Division of Administrative Law Appeals.