COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS

Appeal of:

Diane Petrucci,

Petitioner

v. CR-07-84
Dated: February 26, 2010

Wakefield Retirement Board,


Respondent

Appearance for Petitioner:

Robert H. Clewell, Esq.

58 Main Street
Topsfield, MA 01983

Neil Rossman, Esq.

200 State Street
Boston, MA 02109

Appearance for Respondent:

None:

Appearance for Intervenor,
PERAC:

Barbara Phillips, Esq.

PERAC
Five Middlesex Avenue, Suite 304
Somerville, MA 02145


Administrative Magistrate:

Joan Freiman Fink, Esq.

SUMMARY OF DECISION

The Petitioner is entitled to receive full creditable service for the period of time that she worked part-time and received partial incapacity benefits pursuant to G.L. c. 152, § 35. The holding in the case of Christiana Amoah v. Contributory Retirement Appeal Board, Suffolk Superior Court, Civil Action No. 2002-0988B is applicable to the facts in this case.


DECISION

Pursuant to G.L. c. 32, § 16(4), the Petitioner, Diane Petrucci, is appealing the January 19, 2007 decision of the Respondent, Wakefield Retirement Board, denying her request to receive full creditable service for the period of April 3, 2000 through February 1, 2005 during which time she received workers' compensation for partial incapacity and worked as a part-time employee for 20 hours per week. (Exhibit 5.) The appeal was timely filed in accordance with the provisions of G.L. c. 32, § 16(4). On January 22, 2008, PERAC filed a Motion to Intervene in this matter. This Motion was allowed on February 8, 2008.

A hearing pursuant to G.L. c. 7 §4H was held on October 28, 2009 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- 13). The Respondent, Wakefield Retirement Board, submitted a Pre-hearing Memorandum that was marked as "A" for identification; the Petitioner's Pre-hearing Memorandum was marked as "B" for identification, and the Respondent PERAC's Stipulation was marked as "C" for identification. The parties presented 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 November 11, 2009 for the parties to conduct a search concerning whether legislation had been filed to amend G.L. c. 32, § 14. On November 6, 2009, PERAC submitted a letter indicating that it had discovered no amendment to this legislation. The record was closed on November 11, 2009.

FINDINGS OF FACT

At the outset of the hearing, the parties agreed to the following stipulations which I hereby enter into evidence as findings of fact nos. 1 - 20. In addition, based on the evidence presented at the hearing, I make findings of fact nos. 21 - 25.

1. The Petitioner has been an employee of the Wakefield Municipal Gas & Light Department wince April 7, 1991.

2. The Petitioner has been a member of the Wakefield Retirement System since April 7, 1991.

3. The Petitioner was a part-time employee of the Wakefield Municipal Gas & Light Department from April 7, 1991 through November 25, 1991.

4. The Petitioner has been a full-time employee of the Wakefield Municipal Gas & Light Department from November 25, 1991 up to and including the present date.

5. In September 1998, the Petitioner applied for, and was appointed to, the position of meter reader with the Wakefield Municipal Gas & Light Department.

6. On January 12, 1999, while on duty reading meters outdoors, the Petitioner slipped and fell on ice, experiencing leg and back pain.

7. The Petitioner filed an incident report describing her January 12, 1999 fall and injury at work.

8. The Petitioner continued reading meters until January 28, 1999 when she informed her office manager that the pain was too great for her to continue.

9. The Petitioner was seen by her physician on January 29, 1999 at which time he opined that she was totally disabled from performing her duties as a meter reader as a result of the January 12, 1999 fall.

10. The Petitioner's physician, after diagnostic testing, diagnosed her as having suffered a spinal disc herniation.

11. The Petitioner was out of work from January 29, 1999 through March 2, 1999 and was treated with bed rest in accordance with her physician's orders

12. On March 3, 1999, the Petitioner returned to work and until April 19, 1999, she performed office work for her employer.

13. On April 20, 1999, the Petitioner resumed her duties as a meter reader and continued in those duties until September 7, 1999.

14. On September 7, 1999, the Petitioner, in the course of reading meters, slipped and twisted her back while attempting to avoid falling.

15. The Petitioner once again saw her own physician as well as physicians for the Town of Wakefield and its Workers' Compensation insurance carrier.

16. The Petitioner received Workers' Compensation benefits as a totally, temporarily disabled worker from January 1, 2000 until April 2, 2000. She received full creditable service for retirement purposes during this period.

17. The Petitioner received Workers' Compensation benefits as a partially disabled worker from April 3, 2000 until February 2005.

18. The Petitioner worked part-time (twenty hours per week) for the Wakefield Municipal Gas & Light Department from April 3, 2000 until February 2005. She received only half time creditable service (i.e., for twenty hours per week that she actually worked) for retirement purposes during that period.

19. On February 1, 2005, the Petitioner resumed full-time work for the Wakefield Municipal Gas & Light Department and has continued in that position up to and including the present date.

20. The Wakefield Retirement Board credited the Petitioner with service as a full-time employee for the period that she collected Workers' Compensation benefits for total disability, i.e., during the period that she performed no work for the Wakefield Municipal Gas & Light Department.

21. The Wakefield Retirement Board credited the Petitioner with only partial service for the period when she was working part-time for the Wakefield Municipal Gas & Light Department, i.e., the same period that she received workers' compensation benefits as a partially disabled worker.

22. On November 20, 2006, the Wakefield Retirement Board wrote to PERAC requesting an opinion as to whether the Petitioner should receive prorated creditable service for the actual hours that she worked part-time but no creditable service for the time that she received workers' compensation benefits for partial incapacity. (Exhibit 1.)

23. On January 12, 2007, PERAC responded to the Wakefield Retirement Board's inquiry stating that members who receive workers' compensation for partial incapacity receive such benefits pursuant to G.L.c. 152, § 35. PERAC noted that although G.L. c. 32, § 14(1) states that members receiving workers' compensation for total incapacity under multiple provisions of G.L. c. 152 retain all the rights of a member in service of the retirement system, section 35 is not one of the sections mentioned. As such, PERAC directed that the Petitioner only receive creditable service for her part-time service for the number of hours she actually worked. (Exhibit 3.)

24. On January 19, 2007, the Wakefield Retirement Board, acting in accordance with the directive from PERAC, informed the Petitioner that her request to receive full creditable service for the period of time from April 3, 2000 through February 1, 2005 when she was on partial incapacity and working part-time had been denied. (Exhibit 5.)

25. On January 25, 2007, the Petitioner filed a timely appeal of this decision with the Contributory Retirement Appeal Board. (Exhibit 6.)


CONCLUSION

There are no material issues of fact in dispute in this matter. The issue in this case is whether the Petitioner is entitled to full creditable service for the period of time from April 3, 2000 through February 1, 2005 during which time she received workers' compensation benefits for partial incapacity and worked as a part-time employee for 20 hours per week. After reviewing the evidence presented in this case, I conclude that the Petitioner is entitled to receive full creditable service for the period of time from April 3, 2000 through February 1, 2005 for the reasons stated below.

Creditable service for members who are receiving workers' compensation benefits is provided for by the provisions of G.L. c. 32, § 14(a).

G.L. c. 32, § 14(a) provides in pertinent part that:

Any employee who was a member in service at the time of sustaining an injury or undergoing a hazard on account of which he become entitled to payments under the provisions of chapter one hundred and fifty-two shall, during the period while he is receiving weekly payments for total incapacity, under the provisions of sections sixty-nine to seventy-five, inclusive, of such chapter or of sections thirty-four, thirty-four A, thirty-four B, thirty-five A, thirty-five F or thirty-six of such chapter … retain all the rights of a member in service while he is living, unless and until a retirement allowance becomes effective for him under the provisions of sections one to twenty-eight, inclusive. … Any such member shall have credited to him as creditable service under the system the period during which he is receiving such weekly payments or lump sum settlement in lieu of such weekly payments ….

In the current case, during the relevant period of time, the Petitioner was awarded partial incapacity pursuant to the provisions of G.L. c. 152, § 35.
G.L. c. 152, § 35 provides in pertinent part that:
While the incapacity for work resulting from the injury is partial, during each week of incapacity the insurer shall pay the injured employee a weekly compensation equal to sixty percent of the difference between his or her average weekly wage before the injury and the weekly wage he or she is capable of earning after the injury, but not more than seventy-five percent of what such employee would receive if he or she were eligible for total incapacity benefits under section thirty-four. An insurer may reduce the amount paid to an employee under this section to the amount at which the employee's combined weekly earnings and benefits are equal to two times the average weekly wage in the commonwealth at the time of such reduction.

PERAC asserts that the first paragraph of Section 14(a) of Chapter 32 lists the sections of G.L. c. 152 that provide for those members who receive weekly workers' compensation benefits to retain all rights as a member in service. PERAC notes that the list of sections contained in that paragraph does not include the section that provides for payments for partial incapacity, specifically, G.L. c. 152, § 35. The Respondent further notes that the second paragraph of section 14(a) provides that any such member who receives benefits listed in the first paragraph, i.e., workers' compensation benefits, shall receive creditable service during the period in which he or she received benefits. Accordingly, PERAC maintains that unless a member is receiving weekly workers' compensation benefits for total incapacity, that member cannot be granted creditable service for the period of time that he or she received workers' compensation benefits for partial incapacity.

The Petitioner asserts that she should be awarded full creditable service for the period of time that she was receiving workers' compensation benefits for partial incapacity. While the Petitioner acknowledges that Chapter 32, § 14(a) is silent with respect to the creditable service for members who receive workers' compensation benefits for partial incapacity, she stresses that the holding in the case of Christiana Amoah v. Contributory Retirement Appeal Board, Suffolk superior Court Docket No. SUCV 2002-0988B, is directly on point and should be applied in this instance.

In Amoah, supra, the Petitioner, an employee of the UMass Medical Center, was injured at work in 1994. From May 18, 1994 through June 3, 1994, she received workers' compensation for total incapacity and from June 1, 1994 through August 23, 1994, she received workers' compensation for partial incapacity. During that three month period of time, she did not resume her normal duties but rather worked part-time on a light-duty basis.

While she was out on partial disability, Ms. Amoah received prorated creditable service. When her request to receive full creditable service for the period of time that she worked part-time and received partial incapacity benefits was denied on the grounds that there was no statutory authority for such an award, Ms Amoah appealed that decision. In Amoah, supra, the Suffolk Superior Court held that it may look to public policy when the statute, in this case, G.L. c. 32 § 14, is silent on an issue. In her analysis of the facts of Ms. Amoah's case, Justice McEvoy stated that "no one should be penalized from attempting to fulfill their work duties to the best of one's ability and receive partial disability when the alternative is to remain at home and out on full disability." Justice McEvoy then ordered that Ms. Amoah receive full creditable service during the period of time that she worked part-time while she was receiving partial disability benefits under G.L. c. 152, § 35.

I likewise conclude that Ms. Petrucci should not be penalized for attempting to work part-time while she was receiving workers' compensation benefits for partial incapacity as a result of a work-related injury. Although it does not appear at the present time that legislation has been proposed to amend Chapter 32, § 14(a) to include members who are receiving partial incapacity benefits under G.L. c. 152, § 35, I nonetheless conclude that the holding in Amoah should be granted deference in this case.

In light of the foregoing, the decision of the Respondents is hereby reversed. The Wakefield Retirement Board is ordered to forthwith grant Ms. Petrucci full creditable service for the period of time that she worked part-time and received partial incapacity benefits pursuant to G.L. c. 152, § 35.


SO ORDERED.


DIVISION OF ADMINISTRATIVE LAW APPEALS

Joan Freiman Fink, Esq.
Administrative Magistrate

Dated: February 26, 2010