COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS

Appeal of:

Mary Ann Wood,

Petitioner

v. CR-08-109

State Board of Retirement,

Respondent

Appearance for Petitioner:

Mary Ann Wood, pro se

26 Wood Street
Nashua, NH 03060

Appearance for Respondent:

Erin C. Nally, Esq.

State Board of Retirement
One Ashburton Pl. - Rm. 1219
Boston, MA 02106

Administrative Magistrate:

Joan Freiman Fink, Esq.

DECISION

Pursuant to G.L. c. 32 §16(4), the Petitioner, Mary Ann Wood, is appealing the February 1, 2008 decision of the Respondent, State Board of Retirement, denying her request for additional survivor benefits payable to her son, Dana Levitt (Exhibit 1). The appeal was timely filed in accordance with the provisions of G.L. c. 32 §16(4).

Pursuant to the provisions of 801 CMR 1.01 (10) (c), the parties agreed to submit the case on written submissions and to waive a hearing. On March 19, 2008, the Petitioner submitted a written argument and proposed exhibits. On April 15, 2008, the Respondent submitted a written argument and proposed exhibits. The record was closed on April 15, 2008. The Parties agreed to the submission of the following Exhibits in this matter:

Exhibit 1 - Letter of Denial
Exhibit 2 - Letter of Appeal
Exhibit 3 - Request for clarification
Exhibit 4 - Petitioner's request to waive her right to a hearing
Exhibit 5 - Petitioner's request for additional survivor benefits
Exhibit 6 - New Hampshire medical coverage summary 8/7/06
Exhibit 7 - Dana Levitt's Birth Certificate
Exhibit 8 - Mia Levitt's Birth Certificate
Exhibit 9 - Form 121A
Exhibit 10 - Board's form entitled Election by Spouse at Death of a Member
Exhibit 11 - Social Security Survivors and Disability Insurance Form
Exhibit 12 - Report of Dr. Albert Sciarappa 1/24/07
Exhibit 13- Nashua Community College Forms
Exhibit 14- Letter from Petitioner dated 2/14/08
Exhibit 15 - Letter from Petitioner dated 3/3/08
Exhibit 16 - Letter from Petitioner dated 3/14/08
Exhibit 17 - Assessment from Nashua High School North
Exhibit 18 - New England College Acceptance Letter

FINDINGS OF FACT

Based on the evidence provided in this appeal, I hereby make the following findings of fact:

1. The Petitioner's husband, David C. Levitt, was an employee of the Department of Public Welfare when he passed away on February 12, 1994 (Exhibit 9).

2. The Petitioner was married to and living with her husband at the time of his death (Exhibit 9).

3. At the time of her husband's death in February of 1994, the Petitioner had two minor children, Mia Levitt, born on January 2, 1988, and Dana Levitt, born on February 1, 1990 (Exhibits 7 & 8).

4. Shortly after her husband's death, the Petitioner was awarded a monthly benefit pursuant to G.L. c. 32 §§12(2)(d) and 12B, which included the additional allowances of $120.00 and $90.00 for two minor children (Exhibits 9 & 10).

5. Mia Levitt attained age 18 on January 2, 2006 and is currently a full-time college student at University of Albany (Exhibit 14).

6. Dana attained age 18 on February 1, 2008 and is not a full time student (Exhibit 7 & 14).

7. An assessment of Dana's academic achievement performed by a Special Education Teacher at Nashua High School North on April 18, 2007 recommended that he "have access to a small, safe academic assistance program. Dana may need to have his work load limited to meet minimal requirements to help him deal with his level of stress" (Exhibit 17).

8. Dana is currently attending Nashua Community College on a part-time basis taking three classes instead of the normal five classes per semester (Exhibits 8, 9, & 14).
9. Dana has been diagnosed as suffering from bipolar disorder, ADHD, and panic attacks and has been receiving counseling and treatment for those conditions since 2004 (Exhibit 11).

10. As a result of these disabilities, Dana became eligible for Medicaid benefits commencing on March 11, 2006 (Exhibit 6).

11. By memorandum dated December 26, 2007, the Petitioner requested a continuation of the benefits being paid for the benefit of her son, Dana, pursuant to G.L. c. 32 §12B (Exhibit 5).

12. On February 1, 2008, the State Board of Retirement sent the Petitioner formal notification that her request had been denied (Exhibit 1).

13. On February 14, 2008, the Petitioner filed an appeal of this decision with the Contributory Retirement Appeal Board (Exhibit 2).

CONCLUSION

G.L. c. 32 §12B provides in pertinent part that:

If a member in service…dies…and if there are any surviving children of said deceased member who are under age eighteen or over said age and physically or mentally incapacitated from earning on the date of death of the member…there shall be paid to such spouse for the benefit of all such children an additional allowance…Allowances payable under this section for the benefit of a child shall terminate upon…reaching the age of eighteen unless he is physically or mentally incapacitated from earning on the date of death of a member, or if a full-time student upon reaching the age of twenty-one, or on the date a child ceases to be a full-time student…

After reviewing the evidence presented in this case, I reluctantly conclude that the Petitioner's son, Dana, is no longer eligible to receive an additional survivor benefit. At the time that Dana's father, David Levitt, passed away, Dana was only four years old and was not "physically or mentally incapacitated from earning." In accordance with the evidence presented, Dana commenced receiving psychological counseling for his bipolar disorder, ADHD, and panic attacks in 2004, approximately ten years after the death of his father. In addition, Dana's eligibility to receive Medicaid benefits as a result of his psychological conditions commenced in 2006, twelve years after his father's death.

While G.L. c. 32 §12B provides that surviving children who are full time students are entitled to receive benefits, Dana does not meet the statutory requirement for eligibility in that he is currently taking a reduced course load at Nashua Community College. An assessment of Dana's academic achievement performed by a Special Education Teacher at Nashua High School North in April of 2007 recommended that he have his academic work load limited to help him deal with his psychological issues. Although the Petitioner submitted a letter indicating that Dana had been offered and accepted admission at New England College for the fall of 2008, no evidence was introduced concerning the type of course load that he will be carrying. Nor was any evidence provided that Dana would be increasing his current reduced class schedule in the fall.

While I empathize with Ms. Wood's situation, there is no statutory or case law indicating that the State Board of Retirement has the authority to employ an equitable remedy in the face of specific statutory language contrary to the position fostered by the Petitioner. CRAB's Decision on Request for Reconsideration, Adolph Petrillo v. PERA, CR-92-731 (10/22/93).

In light of the foregoing, I order that the decision of the State Board of Retirement denying the Petitioner's request for survivor benefits on behalf of her son be affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Joan Freiman Fink
Administrative Magistrate

Dated: April 30, 2008


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