COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals


Shirley Svenson,

Petitioner

v. Docket No. CR-07-322

Malden Retirement Board,

Respondent


Appearance for Petitioner:

Michael A. Torrisi, Esq.

Torrisi & Torrisi, PC
555 Turnpike Street, #44
No. Andover, MA 01845

Appearance for Respondent:

Michael Sacco, Esq.

285 College Highway
PO Box 479
Southampton, MA 01073

Administrative Magistrate:

Maria A. Imparato, Esq.


DECISION

Shirley Svenson filed a timely appeal under G. L. c. 32, s. 16 (4) of the November 20, 2006 decision of the Malden Retirement Board ("Board") to deny her request for accidental disability retirement benefits without convening a medical panel because she was not injured while in the performance of her duties. (Exs. 1, 2)

I held a hearing on April 29, 2008 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA. I admitted documents into evidence. (Exs. 1 - 15) I marked the joint pre-hearing memorandum "A" for identification. The Petitioner testified. There is one tape cassette of the hearing.

FINDINGS OF FACT

1. Shirley Svenson, d.o.b. 6/5/1936, worked part-time as a Licensed Practical Nurse ("LPN") at the City of Malden McFadden Nursing Home from September 1999 to January 10, 2003. (Testimony, Ex. 5)

2. Ms. Svenson worked between 24 and 30 hours a week as the charge nurse on the 3 - 11 p.m. shift. She passed medications, performed treatments, oversaw the nurse aides, directed patient care, lifted patients and completed paperwork. (Testimony)

3. On January 10, 2003 Ms. Svenson arrived at work at about 6:30 a.m. to take an extra 7 a.m. - 3 p.m. shift as a favor to another nurse who could not come in. Ms. Svenson parked her car in the facility parking lot, about 10 feet from the door. She walked up two stairs and opened the door to the facility when a maintenance man called to her from outside and told her she could not park in that spot because the laundry service would not be able to get in. Ms. Svenson turned around and came down the stairs to move her car when she slipped and fell on the ice. (Testimony, Exs. 7, 8, 12)

4. Ms. Svenson was taken by ambulance to Melrose-Wakefield Hospital with a trimalleolar fracture dislocation of the left ankle joint that required surgery. She was hospitalized for five days, and confined to her home for 15 or 16 months. She presently walks with a limp and cannot walk great distances. She feels pain every day. (Testimony, Exs. 6, 9)

5. Ms. Svenson filed a report of injury and collected worker's compensation benefits. (Exs. 10, 11, 12)

6. By letter of January 26, 2005 the Board's Retirement Director informed Ms. Svenson that after review of her notice of intent to file for accidental disability retirement benefits, that Board determined that her injury did not occur while she was in the performance of her job duties. (Ex. 13)

7. By letter of February 3, 2005 Ms. Svenson's counsel disputed the Board's position, and asked to have an application for disability retirement forwarded to him. (Ex. 14)

8. On or about September 8, 2006 Ms. Svenson filed an application for accidental disability retirement benefits citing a "severe injury to my left ankle" as a result of the incident of January 10, 2003. (Ex. 5)

9. Robert R. Pennell M.D. filed a statement in support of the application, answering all certificate questions in the affirmative. Dr. Pennell opined that Ms. Svenson "is totally and permanently disabled for gainful employment. All of her disability is the result of the work accident of 1/10/03." (Ex. 6)

10. By notice of November 20, 2006 the Board informed Ms. Svenson that her application had been denied without convening a medical panel because she had failed to establish that the claimed disability was the result of a personal injury sustained while in the performance of her duties. (Ex. 1)

11. By letter of April 3, 2007 Ms. Svenson's counsel notified the Board that he had not received any correspondence from the Board with respect to Ms. Svenson's application. (Ex. 2)

12. By letter of April 9, 2007 the Board supplied a copy of its Notice of Retirement Board action to Ms. Svenson's counsel. (Ex. 3)

13. By letter of April 19, 2007, Ms. Svenson's counsel filed an appeal on her behalf. (Ex. 4)

CONCLUSION AND ORDER

The decision of the Malden Retirement Board to deny the application of Shirley Svenson for accidental disability retirement benefits without convening a medical panel is affirmed because the Petitioner was not performing a duty of her job when she was injured.

In order to prevail on her application the Petitioner bears the burden of proof to demonstrate that she is permanently unable to perform the essential duties of her job as the proximate result of a personal injury sustained or hazard undergone as a result of, "and while in the performance of, [her] duties." (G. L. c. 32, s. 7 (1)) The Petitioner was injured prior to the start of her work day while she was on her way into work. She was not performing a duty of her job at the time she was injured. The Supreme Judicial Court considered the "while in the performance" issue in the case of Namvar v. CRAB, 422 Mass. 1004, 663 N.E.2d 263 (1996), where a member was injured while returning to her office from the school cafeteria. The SJC reaffirmed its historically strict construction of the clause and concluded that "if the employee had been going from one place at which she had an employment obligation to another such place, if she had had an employment duty in the cafeteria (as well as at her office), or if she had been performing a duty of her employment while walking to her office, the result would be different." Id., 663 N.E.2d at 264. The SJC reaffirmed its holding in Namvar in the case of Richard v. Worcester Retirement Board, 431 Mass. 163, 726 N.E.2d 405 (2000), where a public health nurse who worked in the public schools was injured while driving from her home to her first school assignment of the workday. The SJC concluded that the member's application for accidental disability retirement benefits was properly denied because she was not injured while in the performance of her duties. "[S]he was injured while traveling from home, where she had no employment obligation, to a workplace designated by the City, prior to the regular start time of her workday." The commute from home to her assigned work site was not deemed to be an employment duty.

In the instant case, the Petitioner was injured before the start of her work day when she slipped on ice in the parking lot on the way to move her car so that she could begin work. She was traveling from a place where she had no employment obligation (her home) to a place where she had an employment obligation. Under the Namvar standard, she was not injured while in the performance of her duties.

Under PERAC regulation 840 CMR 10.09 (2), the Board is permitted to terminate the proceedings and deny the application "if it determines that the member cannot be retired as a matter of law." The Board was therefore not required to convene a medical panel to examine the Petitioner for accidental disability retirement benefits because she cannot prevail on her claim as a matter of law.

I recognize, as did the SJC, that this case yields a harsh result. "As in the Namvar case, we acknowledge that the strict causation requirement of G. L. c. 32, s. 7 (1) can yield harsh results for employees who have suffered disabling injuries. However, to reiterate what we said in the case, unless and until the Legislature amends the accidental disability retirement statute to relax this requirement, fairness demands that we apply the statute's terms consistently to all claimants." Richard, 726 N.E.2d at 407.

I note that the timeliness of the Petitioner's appeal is not at issue here. I conclude, as did the Board, that the appeal is timely because the first notice of retirement board action was not sent to the Petitioner's attorney of record.

The decision of the Board to deny this application for accidental disability benefits without convening a medical panel is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Maria A. Imparato
Administrative Magistrate

DATED: 6/12/08


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