COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS


Appeal of:


Donald Welch,

Petitioner

v. CR-06-300

State Board of Retirement,

Respondent

Appearance for Petitioner:

Paul T. Hynes, Esq.

Angoff, Goldman et al.
44 Bromfield Street - 8th Fl.
Boston, MA 02108

Appearance for Respondent:

Melinda Troy, Esq.,

State Board of Retirement
One Ashburton Pl. - Rm. 1219
Boston, MA 02108

Administrative Magistrate:

Joan Freiman Fink, Esq.

SUMMARY OF DECISION

The Petitioner, a retired employee of the Hampden County Sheriff's Office, is not entitled to benefits under the Heart Law, G.L. c. 32, § 94 as the 2007 amendment providing for such benefits to county correctional officers cannot be applied retroactively.

DECISION


Pursuant to G.L. c. 32, § 16(4), the Petitioner, Donald Welch, is appealing the May 1, 2006 decision of the Respondent, State Board of Retirement, declining to process his application for accidental disability retirement benefits brought pursuant to G.L. c. 32, § 94 (the "Heart Law") (Exhibit 1). 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 October 15, 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 - 13.) 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 testified in his own behalf. One cassette tape recording was made of the hearing.

The record in this case was left open until November 18, 2008 for the submission of the following two documents: the Petitioner's application for superannuation retirement benefits dated August 21, 2006, which I now mark into evidence as Exhibit 14; Chapter 34B § 1 calling for the abolition of Hampden County as of July 1, 1998 which I now mark into evidence as Exhibit 15. The parties also submitted written closing memoranda on November 18, 2008 and the record was declared closed on that date.

FINDINGS OF FACT

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

1. The Petitioner, Donald Welch, d.o.b. 4/20/50, commenced employment with the Hampden County Sheriff's Department as a Recreational Supervisor/Correction Officer on June 28, 1993. (Testimony of the Petitioner.)

2. Prior to commencing employment with the Hampden County Sheriff's Department, the Petitioner successfully passed a pre-employment physical. (Testimony of the Petitioner.)

3. The Petitioner's primary duties as a Recreational Supervisor/Correction Officer involved the care and custody of inmates housed in a Pre-Release Facility located in Ludlow, MA. The majority of the inmates under the Petitioner's care had been convicted of drug related crimes or sexual abuse. (Testimony of the Petitioner.)

4. In accordance with the provisions of G.L. c. 34B § 1, Hampden County was abolished as of July 1, 1998 and the members of its retirement system including the Petitioner became members of the State Retirement System. (Exhibit 15.)

5. The Petitioner remained employed by the Hampden County Sheriff's Office after Hampden County was abolished in July of 1998. He never became an employee of the Department of Correction. (Exhibit 14).

6. On March 10, 2003, the Petitioner suffered a myocardial infarction while at work. He remained out of work for a period of approximately ten to twelve weeks when he returned to his full duties. (Testimony of the Petitioner).

7. On March 28, 2005, the Petitioner, while on duty at approximately 11 a.m., observed two inmates asleep under the covers. The Petitioner told them to get up and one complied but the other did not. When he reiterated his order to get up, the Petitioner heard the recalcitrant inmate mutter "that asshole guard is always trying to get me up." (Testimony of the Petitioner.)

8. The Petitioner instructed that inmate to go to the office but the inmate refused. The Petitioner then proceeded to call for help. (Testimony of the Petitioner.)

9. While in the process of seeking help, the Petitioner felt warm and sweaty and his nose began to bleed. He was taken to the nurse's office by a correction officer who came to assist with the inmate. (Testimony of the Petitioner.)

10. The Petitioner was subsequently transported to the Mercy Hospital in Springfield, MA where he underwent surgery to repair his left carotid artery. (Testimony of the Petitioner.)

11. On June 21, 2005, the Petitioner filed an application for accidental disability retirement pursuant to G.L. c. 32, § 94. (Exhibit 3.)

12. By letter dated November 10, 2005, the State Board of Retirement informed the Petitioner that it would not process his application for accidental disability retirement brought pursuant to G.L. c. 32, § 94. In this letter, the State Board of Retirement noted that the Petitioner may be eligible to submit an application for ordinary disability retirement under G.L. c. 32, § 6 or accidental disability retirement under G.L. c. 32, § 7. (Exhibit 4).

13. On March 20, 2006, then Counsel for the Petitioner wrote to the State Board of Retirement affirming the fact that Mr. Welch was seeking accidental disability retirement under the Heart Law. (Exhibit 5.)

14. By letter dated May 1, 2006, the State Board of Retirement notified the Petitioner that his application for accidental disability retirement benefits had been denied "in part because the statute (G.L. c. 32, § 94) limits its application to correctional employees in the Department of Correction …." (Exhibit 1.)

15. By letter dated May 8, 2006, the Petitioner filed an appeal of that decision with the Contributory Retirement Appeal Board. (Exhibit 2.)

16. On September 28, 2006, the Petitioner filed an application for superannuation retirement benefits. On this application, the Petitioner listed his employer as the Hampden County Sheriff's Department. (Exhibit 14.)

17. The application was approved and Mr. Welch commenced receiving retirement benefits effective October 12, 2006. (Exhibit 14).

18. On December 20, 2006, the Petitioner filed an application for ordinary disability retirement pursuant to G.L. c. 32, § 6. Although the State Board of Retirement approved his application, as the case was being processed for payment, the Board determined that his military service would not qualify him for "veteran" status as defined in G.L. c. 32 § 1. (Exhibit 6.)

19. By letter dated August 24, 2007, the State Board of Retirement notified the Petitioner that an ordinary disability retirement would not provide him with an enhanced benefit over the superannuation retirement benefit that he currently receives. (Exhibit 7.)

20. On October 18, 2007, the Petitioner withdrew his application for ordinary disability retirement benefits. (Exhibit 7.)

21. The Petitioner did not file an application for accidental disability retirement benefits pursuant to G.L. c. 32, § 7.

CONCLUSION

In or about November 1, 2005, the date that the Petitioner filed an application for benefits. The Heart Law, Chapter 32, § 94 provided as follows:

Notwithstanding the provisions of any general or special law to the contrary…any condition of impairment of health caused by hypertension or heart disease resulting in total or partial disability or death to a uniformed member of a paid fire department or permanent member of a police department …or to any member of the department of corrections whose regular or incidental duties require the care, supervision, or custody of prisoners, criminally insane persons or defective delinquents…shall, if he successfully passed a physical examination on entry into such service…which examination failed to reveal any evidence of such condition, be presumed to have been suffered in the line of duty, unless contrary be shown by competent evidence. (Emphasis supplied.)

At the time he filed his application under the Heart Law in November of 2005, the Petitioner was employed as a Residential Supervisor/Correction Officer at a county correctional facility under the jurisdiction of the Hampden County Sheriff's Office. He was not employed by a facility within the jurisdiction of the Department of Correction. As such, he did not meet the statutory qualifications outlined in G.L. c. 32 § 94 for the Heart Law Presumption. In George B. Roberts v. Plymouth County Retirement Board, CR-92-688 (DALA, 1994), this Division held that "G.L. c. 32, § 94 has consistently been interpreted as excluding County Correction Officers from its reach, since they are not among the specific job titles set forth as being potentially able to use the presumption."

Effective November 14, 2007, the Legislature amended G.L. c. 32, § 94 to be applicable to "any employee of the department of correction or a county correctional facility …." This amendment provided employees of a county correctional facility with a new retirement benefit to which they were not entitled prior to the effective date of the amendment.

This subsequent statutory amendment cannot now be applied retroactively to permit the Petitioner's request to file for accidental disability retirement under the Heart Law. In the absence of legislative intent to the contrary, statutes operate prospectively and not retroactively. Boston Gas Company v. Department of Public Utilities, 387 Mass. 531, 542 (1982).

Moreover, subsequent to the November 14, 2007 amendment to the statute, the Public Employee Retirement Administration Commission (PERAC) issued Memorandum 45 for the year 2007 that provides:

Any individual who was a member in service on or after the effective date, November 14, 2007, will be entitled to the application of that presumption. This will include active members making contributions to the Retirement System, members receiving payments for sick leave and making contributions, members receiving workers' compensation for total incapacity for any condition, and members who are on authorized leave of absence with pay … . If an eligible member meets the criteria of the statute and membership status as described above, and is in the process of applying for disability retirement as the result of incapacity caused by hypertension or heart disease, PERAC will convene a Heart Law panel upon the request of the Board. A Heart Law panel will not be convened if the member is retired as of the effective date of the statute. (Emphasis supplied.)

Since the Petitioner retired effective October 10, 2006 and did not have a pending disability application at the time of the statutory amendment in November of 2007, he did not meet the criteria for applicability of the statutory amendment as to be entitled to have a medical panel convened to review an application brought pursuant to G.L. c. 32, § 94.

Counsel for the Petitioner argues that the State Board of Retirement should have treated Mr. Welch's application as both an application for disability retirement pursuant to G.L. c. 32, § 7 as well as an application brought pursuant to G.L. c. 32, § 94, the Heart Law. Notwithstanding that argument, the Petitioner merely cited in his application for disability retirement brought pursuant to G.L. c. 32, § 94, that he was disabled due to heart disease. Moreover, there is a distinct difference between the medical panel evaluations under the two separate provisions. Under the Heart Law, the Medical Panel is only called upon to answer the certificate questions relating to whether a member is physically or mentally incapable of performing the essential duties of his or her job and whether the disability is permanent as the member is presumed to have suffered his or her injury in the line of duty. If the first two responses are in the affirmative, the Medical Panel reviewing an application under the Heart Law is instructed to respond to the following three specific questions:

(1) Are there uniquely predominant non-service connected influences upon this member's mental or physical condition which might have substantially contributed to or resulted in the incapacity of the applicant?

(2) Are there any non-service connected accidents or hazards undergone which might have contributed to or resulted in the incapacity of the applicant?

(3) Is there evidence, that although not irrebuttable, so pre-dominates as to obligate a fact finder to come to the conclusion that, for this particular applicant, a uniquely predominant non-service connected influence on the member's mental or physical condition and/or non service connected accidents or hazards caused the incapacity of this applicant?

Pursuant to G.L. c. 32, § 7, when the Heart Law Presumption does not apply, the Medical Panel is also required to respond to the certificate question as to whether the disability is such as might be the natural and proximate result of a personal injury sustained or hazard undergone as a result of and while in the performance of his or her duties.

By letter dated November 10, 2005, the State Board of Retirement informed the Petitioner that it would not process his application for accidental disability retirement brought pursuant to G.L. c. 32, § 94. In this letter, the State Board of Retirement noted that the Petitioner may be eligible to submit an application for ordinary disability retirement under G.L. c. 32, § 6 or accidental disability retirement under G.L. c. 32, § 7. On March 20, 2006, then Counsel for the Petitioner, Peter Fenton, confirmed that Mr. Welch had filed an application pursuant to G.L. c. 32, § 94. Attorney Fenton did not ask that the application also be treated as an application brought pursuant to G.L. c. 32, § 7. Although the Petitioner did in fact subsequently file an application for ordinary disability retirement benefits pursuant to G.L. c. 32, § 6, at no time did he file an application for accidental disability retirement pursuant to G.L. c. 32, § 7. His application for ordinary disability retirement was subsequently withdrawn as it was determined that the benefits he received from his superannuation retirement allowance exceeded the amount he would have received if he had been awarded an ordinary disability allowance.

Since the Petitioner did not file an application for accidental disability retirement benefits pursuant to G.L. c. 32, § 7 prior to the effective date of his retirement with superannuation retirement benefits, he does not meet the statutory criteria outlined in G.L. c. 32, § 94 as amended for the award of benefits.

Accordingly, I order that the decision of the State Board of Retirement denying the Petitioner's application for benefits pursuant to G.L. c. 32, § 94 be affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

/s/ Joan Freiman Fink
Administrative Magistrate

Dated: March 19, 2009