COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS


Appeal of:

Ronald Sutkus,

CR-09-837
Petitioner Dated: March 5, 2010

v.

State Board of Retirement,

Respondent

Appearance for Petitioner:

Ronald Sutkus

46 Prospect Street
Rutland, MA 01543

Appearance for Respondent:

Erin C. Nally, Esq.

State Board of Retirement
One Ashburton Pl. - 12th Fl.
Boston, MA 02108

Administrative Magistrate:

Joan Freiman Fink, Esq.


SUMMARY OF DECISION

I conclude that the Petitioner's major duties did require him to be involved in the care and instruction of mentally ill persons within the meaning of G.L. c. 32, §3(2)(g). The decision of the State Board of Retirement is hereby reversed. Mr. Sutkus's group classification is hereby changed from Group 1 to Group 2 for retirement purposes.

DECISION

Pursuant to G.L. c. 32, §16(4), the Petitioner, Ronald Sutkus, is appealing the November 2, 2009 decision of the Respondent, State Board of Retirement, classifying his position as Laboratory Technician II in Group 1 for retirement purposes. (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 February 4, 2010 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 - 8.) 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 her own behalf as did Janina Bukowski, a Physician's Assistant, who has worked with Mr. Sutkus at Westborough State Hospital for the past twelve years. One cassette tape recording was made of the hearing.


FINDINGS OF FACT


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

1. The Petitioner, Ronald Sutkus, d.o.b. 7/13/53, was certified as a laboratory assistant/phlebotomist by the Commonwealth of Massachusetts in 1979. (Testimony of the Petitioner.)

2. From 1983 to 1987, he worked as a phlebotomist at the Fallon Clinic on a part-time basis. (Testimony of the Petitioner.)

3. On March 30, 1986, the Petitioner accepted full-time employment as a Laboratory Technician I at Westborough State Hospital. He worked at Westborough during 1986 and 1987 while he was still employed at the Fallon Clinic. (Testimony of the Petitioner.)

4. The Petitioner became a member of the State Retirement System during his employment with Westborough State Hospital. (Testimony of the Petitioner.)

5. The Petitioner was promoted to the position of Laboratory Technician II and held that position until his retirement with superannuation retirement benefits on January 31, 2010. (Testimony of the Petitioner.)

6. The population of Westborough State Hospital consists of approximately 200 adult patients, all of who suffer from acute mental illnesses including schizophrenia, bi-polar disorders, paranoia, and major depressive disorders. (Testimony of the Petitioner; testimony of Ms. Bukowski.)

7. The official job description for the position of Laboratory Technician II lists the general statement of duties and responsibilities as follows: "Drawing patient's blood on inpatient units and in the laboratory as ordered by Physicians. Prepares and tests samples as required by outside laboratory. Keeps records and does other related work." (Exhibit 4.)

8. Under the heading "Detailed Statement of Duties and Responsibilities" in the official job description for Laboratory Technician II, the following items are included: "Establishes a relationship with clients that is respectful of their ethnic and cultural backgrounds … performs venipuncture services on all psychiatric patients … supervises patients while drawing bloods, so that patients do not have access to needles, tubes or hazardous substances …." (Exhibit 4.)

9. The Petitioner's primary job duties involved performing blood and urine tests on psychiatric patients. The hospital had treatment centers set up in various units where the Petitioner would meet with the patients. Although a nurse or attendant would accompany the patient into the treatment center for the blood and/or urine testing, in most instances, the attendant or nurse would then leave to resume his/her other duties, leaving the Petitioner alone with the patient. (Testimony of the Petitioner.)

10. Almost 100% of the Petitioner's daily job functions involved one-on-one contact with patients as he administered blood and urine tests. (Testimony of the Petitioner.)

11. Since all of the patients suffered from severe mental illnesses including anxiety and paranoia, it was extremely important that the Petitioner immediately reassure and comfort patients when they entered the treatment center, especially those patients who indicated either by yelling or by physical gestures that they did not want to be touched by needles. The Petitioner slowly and patiently explained the entire procedure to all the patients before actually administering blood tests, spending approximately fifteen minutes with each patient prior to drawing their blood. (Testimony of the Petitioner.)

12. The Petitioner had to be very careful during the administration of the blood tests as some patients would try to gain access to the needles employed in the test. (Testimony of the Petitioner.)

13. After the blood tests were administered, the Petitioner would ask the patient for his or her name and date of birth. He would then check that information against the requisition form that he had received from the requesting physician for accuracy. Upon establishing that he had performed the required tests on the correct patient, the Petitioner would label the sample and place it in a tray to be sent to a laboratory for testing. (Testimony of the Petitioner.)

14. The Petitioner then explained to the patients that they should not tear off the band-aid that covered the puncture wound for several hours as some of the patients immediately tried to make themselves bleed at the wound site. (Testimony of the Petitioner.)

15. The Petitioner was the only phlebotomist at Westborough State Hospital. On an average day, he administered blood tests to approximately twenty to thirty patients. (Testimony of the Petitioner.)

16. As part of her duties as a Physician's Assistant at Westborough State Hospital, Janina Bukowski wrote many orders for blood work on patients. Some of the patients that she treated were extremely difficult and combative. If those patients were acting in a violent manner at the time that they needed to have their blood drawn, Ms. Bukowski would request that the Petitioner come to the patient's bedside to draw blood rather than bringing that patient to the treatment center. (Testimony of Ms. Bukowski.)

17. On numerous occasions, Ms. Bukowski watched the Petitioner draw blood on difficult and problematic patients at their bedside. Prior to administering the blood tests, the Petitioner talked to the patients, often for as long as twenty minutes, to calm them so that the test could be performed without incident. (Testimony of Ms. Bukowski.)

18. On one occasion when Ms. Bukowski as well as several physicians tried unsuccessfully to get an exceptionally hostile and recalcitrant patient to agree to go to the treatment center to get a blood test, the medical team working with that patient decided to ask the Petitioner to come to the patient's bedside to talk to him. The Petitioner readily agreed and spoke to the patient in a very soft and slow manner. Several minutes later, the patient agreed to have the Petitioner draw his blood right at his bedside. (Testimony of Ms. Bukowski.)

19. Ms. Bukowski also asked the Petitioner to assist her whenever she experienced difficulty in inserting an IV on a patient as Mr. Sutkus was extremely skilled in inserting IVs. (Testimony of Ms. Bukowski.)

20. The Petitioner was selected as Westborough State Hospital's Employee of the Month for February of 2005. In the letter sent by the hospital informing the Petitioner of the award, Chief Operating Officer Skolnick stated that" "you were nominated by staff and selected by a committee based on your outstanding job performance. You are a very skilled phlebotomist, able to draw blood on both anatomically and psychiatrically difficult patients." (Exhibit 7.)

21. In or about January of 2009, the Petitioner requested that he be classified in Group 2 for retirement purposes. (Exhibit 3.)

22. By letter dated November 2, 2009, the Respondent Board notified the Petitioner that he was classified for retirement purposes in Group 1. (Exhibit 1).

23. By letter dated November 9, 2009, the Petitioner filed a timely appeal of this decision with the Contributory Retirement Appeal Board. (Exhibit 2).


CONCLUSION

G.L. c. 32, §3 (2)(g) provides for a system of classification of employees for retirement purposes.

Group 1 includes "Officials and general employees including clerical, administrative and technical workers, laborers, mechanics and all others not otherwise classified."

Group 2 includes in pertinent part: "employees of the commonwealth or of any county whose regular and major duties require them to have the care, custody, instruction or other supervision of parolees or persons who are mentally ill or mentally defective or defective delinquents …."

The Petitioner contends that since his job requires him to spend virtually all of his time caring for mentally ill adults, he meets the statutory requirements outlined in G.L. c. 32, § 3 (2)(g) for classification in Group 2.

After careful consideration of the testimony and evidence presented in this hearing, I conclude that the Petitioner is entitled to be classified as a Group 2 employee for retirement purposes.

In determining the proper classification for a member, it is important to consider the job description and the actual duties performed by that employee. See Gaw v. Contributory Retirement Appeal Board, 345 N.E. 2d 908 (1976) where the Court considered the primary test for Group eligibility in accordance with G.L. c. 32, s. 3(2)(g) to be largely the employee's title or job description. The court in Gaw, supra, stressed the significance of the job description in determining whether one's position falls within a specific group. In Maddocks v. Contributory Retirement Appeal Board, 340 N.E. 2d 403 (1976), the Court held that it is the applicant's duties and responsibilities in the period prior to the termination of his or her employment that is controlling for purposes of classification under G.L. c. 32, § 3 (2)(g).

In this case, the Petitioner's job description for his position as Laboratory Technician II provided that he was required to "performs venipuncture services on all psychiatric patients … supervise patients while drawing bloods, so that patients do not have access to needles, tubes or hazardous substances …." At the hearing, the Petitioner gave credible testimony to the effect that on a daily basis, he performed blood and urine tests on adult patients all of whom suffered from severe mental illnesses including schizophrenia, bi-polar disorders, and paranoia. The Petitioner further testified that because these patients were extremely anxious about having blood tests, he needed to spend at least fifteen to twenty minutes with each patient carefully and calmly explaining the procedure involved in administering the blood tests. He was also responsible for ensuring that these patients did not grab hold of the needles nor did they rip off the band-aids covering their puncture wounds. Moreover, the Petitioner gave compelling testimony to the effect that on a daily basis, he administered blood tests to patients who were extremely resistant to being touched or having needles inserted in their veins.

I found the Petitioner to be a sincere and convincing witness and credited his testimony to the effect that the vast majority of his workday was spent administering blood and urine tests to mentally ill patients at Westborough State Hospital. Moreover, Mr. Sutkus's testimony was fully corroborated by Ms. Bukowski who worked directly with him for twelve years. Ms. Bukowski testified that she witnessed the Petitioner spending in excess of fifteen minutes per patient carefully explaining the procedures involved in the administration of blood test in order to calm and reassure that patient. Ms. Bukowski stressed that she often called upon the Petitioner to assist her in the insertion of IVs on difficult and problematic patients as she found Mr. Sutkus to be an extremely skilled phlebotomist.

In the case of Jason Harris v Contributory Retirement Appeal Board, Suffolk Superior Court Civil Action, No. 01-3036-G (2002), the Suffolk Superior Court awarded Group 2 classification to a registered pharmacist at the Brockton Multi-Service Center who met with patients on a daily basis to discuss their medications including explaining potential side effects. The court held that since Mr. Harris's duties involved both the instruction and care of mentally ill persons in the plain and ordinary sense of the words, he was entitled to Group 2 classification for retirement purposes.

G.L. c. 32, § 3(2)(g) classifies as Group 2 employees as those whose major duties require them to have the care, custody, instruction or other supervision of mentally ill persons. In the current case, the Petitioner was directly involved in caring for mentally ill adults. In fact, he spent virtually his entire work day administering blood and urine tests to patients suffering from severe mental illnesses usually without assistance from other staff members at Westborough State Hospital.

As such, I conclude that the Petitioner's major duties did require him to be involved in the care and instruction of mentally ill persons within the meaning of G.L. c. 32, §3(2)(g).

Accordingly, I order that the decision of the State Board of Retirement be reversed and that Mr. Sutkus's group classification be changed from Group 1 to Group 2. I further order that the State Board of Retirement make the appropriate adjustment to the Petitioner's retirement benefits to reflect this change of group status.


SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS
/s/
Joan Freiman Fink, Esq.
Administrative Magistrate
Dated: 3/5/10