COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS


Appeal of:

Patrick Scrima,

Petitioner

v. CR-07-413

Somerville Retirement Board,

Respondent

Appearance for Petitioner:

Alan Pierce, Esq.

27 Congress Street - Suite 301
Salem, Ma. 01844

Appearance for Respondent:

Caryn Daum, Esq.

Robinson & Cole LLP
One Boston Place
Boston, Ma. 02108

Administrative Magistrate:

Joan Freiman Fink, Esq.

DECISION

Pursuant to G.L. c. 32 §16(4), the Petitioner, Patrick Scrima, is appealing the May 18, 2007 decision of the Respondent, Somerville Retirement Board, denying his application for accidental disability retirement benefits (Exhibit 30). 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 December 5, 2007 at the offices of the Division of Administrative Law Appeals, 98 N. Washington Street, Boston, Ma. Various documents were entered into evidence at the hearing (Exhibits 1 - 51 ). 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 Petitioner, Patrick Scrima, testified in his own behalf. One cassette tape recording was made of the hearing. The record of this case was left open until January 15, 2008 for the filing of written closing memoranda.

At the outset of the hearing, Administrative Notice was taken of the prior hearing in this matter, Patrick Scrima v. Somerville Retirement Board, CR-04-786 (DALA dec. 7/25/05; CRAB dec. 8/3/06).

FINDINGS OF FACT

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

1. The Petitioner, Patrick Scrima, d.o.b. 4/8/54, commenced employment with the City of Somerville in March of 1990 as an Employment and Safety Training Manager (testimony of the Petitioner).

2. During his early tenure with the City of Somerville, the Petitioner took courses in building inspection and became certified by the Commonwealth of Massachusetts as a state building inspector in or about January of 1995. Shortly thereafter, he transferred to the Assessor's Office (testimony of the Petitioner).

3. In April of 1995, he was appointed to the position of building inspector and in April of 1999, he was appointed to the position of Superintendent of Inspectional Services (testimony of the Petitioner).

4. His duties as Superintendent of Inspectional Services included enforcing building code laws, supervising plumbing and building inspections, and supervising the ten administrative employees of the Inspectional Services Department (testimony of the Petitioner).

5. Prior to 2001, the Petitioner was in good psychological health and had no symptoms of stress-related disorders (testimony of the Petitioner).

6. In March of 2001, the Petitioner was called to a meeting with the City Solicitor, Ms. Callahan. During the course of that meeting, the City Solicitor insinuated that Mr. Scrima could not have written a particular letter concerning the issuance of a building permit. The Petitioner, who wrote the letter in question, felt upset and embarrassed as he thought that the City Solicitor did not credit him with enough intelligence to write that letter (testimony of the Petitioner).

7. In June of 2001, the Petitioner had a meeting with both the Fire Chief and the Deputy Fire Chief regarding whether a sprinkler system was required at a certain dwelling. During the course of that meeting, the Petitioner indicated that he felt that the Fire Department had exceeded its authority by declaring that the property in question needed a sprinkler system (testimony of the Petitioner).

8. As the discussion became more heated, the Petitioner experienced symptoms of a panic attack including heart palpitations and chest pains. The Petitioner went to Winchester Hospital where he was admitted overnight due to chest discomfort and symptomatology related to a panic attack. A cardiac examination was conducted and found to be negative. The Petitioner was released the next morning (testimony of the Petitioner, Exhibit 36).

9. The discharge summary from the Winchester Hospital states that the Petitioner has had "a long history of situational anxiety disorder" (Exhibit 36).

10. The Petitioner remained out of work for a day or two after that incident. Upon returning to work, the Petitioner was summonsed to the Mayor's office for a meeting concerning the issuance of a permit for interior demolition of a Target department store. At that meeting, the Mayor instructed the Petitioner not to issue a permit to the Target store. When the Petitioner questioned her, the Mayor re-iterated her order not to issue Target any type of building permit (testimony of the Petitioner).

11. Approximately one week later, the Petitioner called the Mayor and spoke to her aide. When the Petitioner stated that he needed to issue a permit to Target, the aide replied that he should not do anything and that he (the aide) would talk to the Mayor. The aide subsequently told the Petitioner not to issue a building permit to Target (testimony of the Petitioner).

12. In July of 2001, the Petitioner was served with a notice from the Board of Building Regulations and Standards to appear at a hearing to explain why he had not issued a building permit for Target. At that hearing, the Petitioner became very upset and experienced heart palpitations and difficulty breathing (testimony of the Petitioner).

13. In late July of 2001, the Petitioner was called to a meeting with Commissioner Dow and City Solicitor Callahan concerning the issuance of a certificate of occupancy for Hayden Terrace. During that meeting, the City Solicitor used profane language in her discussion of the occupancy permit and expressed her displeasure with the Petitioner's job performance (testimony of the Petitioner).

14. The Petitioner was subsequently ordered by a judge to issue an occupancy permit for Hayden Terrace. At the court hearing, the Petitioner again suffered a panic attack (testimony of the Petitioner).

15. During the fall of 2001, the Petitioner was subpoenaed to give a deposition concerning the Hayden Terrace issue. At the deposition, the Petitioner testified that he felt that the Mayor and City Solicitor were exerting improper influence with respect to the award of building certificates (testimony of the Petitioner).

16. The Petitioner sought treatment from Dr. Jonathan Adler, an internist, for job-related stress (Exhibit 4 - CR-04-786).

17. On November 9, 2001, the Petitioner, who was at home on a vacation day, was visited by two police officers who hand-delivered a letter indicating that he was being placed on administrative leave with pay. The Petitioner became physically ill as he felt that he was being retaliated against for his testimony at the deposition (testimony of the Petitioner).

18. The Petitioner remained on the payroll until April 16, 2002. He filed a workers' compensation claim and subsequently received a lump sum settlement of that claim (testimony of the Petitioner).

19. On or about May 8, 2003, the Petitioner submitted an application for accidental disability based on major depressive order. He claimed to be unable to perform all of the essential duties of his position as of November 9, 2001 (Exhibit 1).

20. The Petitioner claimed to be disabled due to a hazard from the summer of 2001 to November 9, 2001. "During this period I was a victim of unusual and extraordinary stress, harassment due to trying to lawfully perform my job." He gave the following description of the hazard: "public ridicule, fired for no legally valid reason as City of Somerville and its Mayor or City Solicitor ordered me to revoke permits illegally" (Exhibit 1).

21. Dr. Adler submitted a Physician's Statement in Support of the Application, responding to all three certificate questions in the affirmative. He diagnosed the Petitioner as suffering from panic attacks and depression (Exhibit 9).

22. The Petitioner's attorney submitted a nine page statement in support of the application accompanied by a request for a medical panel to be convened. The Somerville Retirement Board denied the application without convening a medical panel (Exhibits 11 & 14).

23. The Petitioner appealed this denial and after a hearing, CRAB rendered a decision ordering the Somerville Retirement Board to convene a medical panel (Patrick Scrima v. Somerville Retirement Board, CR-04-786 (DALA dec. 7/25/05; CRAB dec. 8/3/06).

24. On November 3, 2006, the Petitioner was examined by a Regional Medical Panel comprised of Dr. Thomas Sciascia, chairman, specializing in neurology, Dr. Joseph Albeck, specializing in psychiatry, and Dr. Melvyn Lurie, specializing in psychiatry (Exhibit 27).

25. The Medical Panel responded to all three questions in the affirmative indicating that the Petitioner is permanently disabled from performing the essential duties of his position as Superintendent of Inspectional Services and that his incapacity is such as might be the natural and proximate result of the personal injury sustained or hazard undergone on account of which retirement is claimed (Exhibit 27).

26. The Panel diagnosed the Petitioner as suffering from depression. With respect to the issue of causation, the panel based its "conclusion on the absence of any psychiatric related symptoms prior to the work related stressor events…" (Exhibit 27)

27. On May 18, 2007, the Somerville Retirement Board sent the Petitioner formal notification that it had denied his application for accidental disability retirement benefits (Exhibit 30).

28. On June 4, 2007, the Petitioner filed a timely appeal of this decision with the Contributory Retirement Appeal Board (Exhibit 31).

CONCLUSION

In order to qualify for an award of accidental disability retirement benefits, the Petitioner must demonstrate that he is permanently unable to perform the essential duties of his position as the proximate result of a personal injury sustained while in the performance of her duties in accordance with the provisions of G.L. c. 32 §7.
In the current case, the Respondent denied the Petitioner's claim for accidental disability retirement benefits based on its contention that Mr. Scrima did not incur a personal injury as defined in the statute, but rather that his mental disability arose principally from bona fide personnel actions.

After reviewing the testimony and evidence presented in this appeal, I conclude that Mr. Scrima has not met his burden of demonstrating that his disabling psychiatric condition is the proximate result of a personal injury sustained or hazard undergone as a result of, and while in the performance of her duties as required by G.L. c. 32, §7.
In order to meet his burden, a Petitioner must prove one of two hypotheses: that his disability was caused by a single or series of work-related events, or that his employment exposed him to "an 'identifiable condition' that is not common and necessary to all or a great many occupations" that resulted in disability through gradual deterioration Blanchette v. CRAB, 481 N.E. 2d 216 (1985).

Mr. Scrima does not prevail under either hypothesis. The Petitioner claims that the cumulative stress of his employment situation caused him severe emotional anxiety resulting in his having incurred frequent panic attacks. Notwithstanding that fact, the Petitioner failed to demonstrate that his position as Superintendent of Inspectional Services was any more stressful than a great many other positions in the field of licensing and permitting. All building inspectors at one time or another are called upon to justify and/or explain their decisions concerning the issuance or non-issuance of various building permits. An applicant for section 7 benefits cannot, however, meet his burden of proof merely by stating his work is stressful. After considering all the evidence, I conclude that Mr. Scrima's work stress was not "an 'identifiable condition' not common and necessary to all or a great many occupations" within the meaning of Blanchette, supra.

Moreover, Mr. Scrima's complaints stem from his perception that he was not treated fairly by the Mayor of the City of Somerville and the City Solicitor. The Petitioner claims that as a result of the hostile actions of these two women, he suffered a personal injury within the meaning of G.L. c. 32 §7. The term "personal injury" has the same meaning under G.L. c. 32 as it does under G.L. c. 152, the Workers' Compensation statute. Zavaglia v. CRAB, 345 Mass. 483, 188 N.E. 2d 147 (1963). General Laws, c. 152, §1(7A) provides in pertinent part:

Personal injuries shall include mental or emotional disabilities only where the predominant contributing cause of such disability is an event or series of events occurring within any employment. If a compensable injury or disease combines with a pre-existing condition, which resulted from an injury or disease not compensable under this chapter, to cause or prolong disability or a need for treatment, the resultant condition shall be compensable only to the extent such compensable injury or disease remains a major but not necessarily predominant cause of disability or need for treatment. No mental or emotional disability arising principally out of a bona fide, personnel action including a transfer, promotion, demotion, or termination except such action which is the intentional infliction of emotional harm shall be deemed to be a personal injury within the meaning of this chapter.

Specifically excluded from the definition of personal injury under G.L. c. 152 §1 (7A) are mental or emotional disabilities "arising principally out of a bona fide, personnel action except such action which is the intentional infliction of emotional harm" (emphasis supplied).

In arriving at my conclusions in this case, I carefully reviewed the medical reports submitted by the Petitioner's physicians as well as his own testimony concerning the various work-related incidents that he cited as the basis of his claim of a personal injury received resulting in his being permanently disabled from performing the essential duties of his position as Superintendent of Inspectional Services. The vast majority of these incidents relate to disagreements between the Petitioner and the Mayor/and or City Solicitor concerning whether building permits should or should not be issued in different instances. Although a few of these discussions between the parties may have become somewhat heated, nonetheless, the Petitioner failed to demonstrate that either the Mayor or the City deliberately intended to inflict emotional harm on the Petitioner by their words or actions. Based on the evidence, it appears entirely plausible that the Petitioner misconstrued the statements made by these individuals and took offense where no offense was intended.

The Petitioner further testified that the Mayor and City Solicitor embarrassed him and retaliated against him for his testimony at a deposition. Notwithstanding his assertion that his employer's intention was to embarrass and humiliate him, I conclude that Mr. Scrima failed to present any evidence to establish that the Mayor took action against him in retaliation for his testimony at a deposition. In order to demonstrate an intentional infliction of emotional harm, the Petitioner must demonstrate that his employer's conduct was beyond the possible bounds of decency and was utterly intolerable. Agis v. Howard Johnson Co., 371 Mass. 140, 355 N.E. 2d 315, 318-319 (1976). Based on my review of the record, I conclude that the Petitioner failed to demonstrate that his employer engaged in any conduct designed to intentionally inflict emotional harm on him.

Notwithstanding the above, the Petitioner asserted that he has met his burden of proof with respect to his eligibility for accidental disability retirement benefits in that the Medical Panel responded in the affirmative to all three certificate questions. Despite this assertion, neither the Somerville Retirement Board nor the Contributory Retirement Appeal Board is bound by an affirmative response by the Medical Panel; rather, such certification represents only some evidence to be considered in rendering a decision. Wakefield v. CRAB, 352 Mass. 499 (1967); Retirement Board of Brookline v. CRAB, 33 Mass. App. Ct. 478 (1992).

In conclusion, the Petitioner has failed to demonstrate that his disability is the proximate result of a personal injury sustained or hazard undergone as a result of, and while in the performance of his duties as required by G.L. c. 32 §7(1) for eligibility to receive accidental disability retirement benefits. Accordingly, the decision of the Somerville Retirement Board denying the Petitioner's application for accidental disability retirement benefits is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Joan Freiman Fink
Administrative Magistrate

Dated: 2/29/08


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