COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals


Leopold Matys,

Petitioner

v. Docket No. CR-06-1088

Teachers' Retirement System,

Respondent


Appearance for Petitioner:

Brian A. Riley, Esq.

Mass. Teachers Association Legal
20 Ashburton Place
Boston, MA 02108

Appearance for Respondent:

Robert G. Fabino, Esq.

Teachers' Retirement System
One Charles Park
Cambridge, MA 02142

Administrative Magistrate:

Maria A. Imparato, Esq.


CASE SUMMARY

The decision of the Teacher's Retirement System to deny this application for accidental disability retirement benefits is affirmed because the Petitioner has not established that he was psychiatrically disabled on his last day of work, and because the Petitioner has failed to meet his burden of proof with respect to causation. The actions of the Principal that the Petitioner cites as causative of his psychiatric disability were not personal injuries, but were bona fide personnel actions that are specifically excluded from the definition of personal injury found in G. L. c. 152, s. 1(7A). The Petitioner did not demonstrate an identifiable condition of employment not common and necessary to all or a great many occupations that caused his disability through gradual deterioration.

DECISION

Leopold Matys filed a timely appeal under G. L. c. 32, s. 16 (4) of the November 28, 2006 decision of the Teachers' Retirement System ("Board") to deny his request for accidental disability retirement benefits. (Exs. 1, 2.)
I held a hearing on March 31, 2009 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA.
I admitted documents into evidence. (Exs. 1 - 29) I marked "A" for identification a memo of March 3, 2003 from the Mountview Middle School Principal; "B" for identification an undated letter from Kathleen Kennedy; "C" for identification a March 17, 2009 letter from William D. Rand; "D" for identification a March 24, 2009 letter from Frank Mero; "E" for identification a March 21, 2009 letter from Richard M. Smith; "F" for identification an undated letter from Brian Wallace; and "G" for identification an October 8, 2003 email communication from State Senator Steve Brewer to the Petitioner. Post hearing, I marked the Joint Pre-Hearing Memorandum "H" for identification.

The Petitioner testified on his own behalf. John Sullivan, Principal of the Mountview Middle School from 1999 to 2004, testified on behalf of the Board. There are two tape cassettes of the hearing. The record remained open until May 15, 2009 for the filing of briefs, and until May 22, 2009 for the filing of reply briefs.

FINDINGS OF FACT

1. Leopold Matys, d.o.b. 2/20/1944, worked as a teacher in the Wachusett Regional School District ("school district") from September 1984 to September 2004. He has been a member of the Teachers' Retirement System since September 1978. (Ex. 3; "H")

2. From 2000 to 2004, Mr. Matys taught 7th grade math at the Mountview Middle School ("Mountview") in Holden. The school district encompasses the Towns of Holden, Paxton, Princeton, Rutland and Sterling. (Ex. 14 letterhead.)

3. In school year 2000-01, John Sullivan became the Principal of Mountview. When Mr. Sullivan arrived at Mountview, it was the poorest performing middle school on MCAS in the school district. By the end of his second year, Mountview was the top MCAS middle school in the school district except that it tied in 8th grade math with the middle school in Sterling. (Testimony, Sullivan.)

4. During school year 2000-01, Mr. Matys had a student in one of his classes whose parents were close friends of School Superintendent Tutela. The parents made complaints to Mr. Sullivan about Mr. Matys's teaching. (Ex. 12.)

5. Mr. Sullivan set up a meeting for November 21, 2000, with the parents, Mr. Matys and himself. Mr. Sullivan insisted that the meeting address the child's achievement, and not Mr. Matys's teaching style. Mr. Matys agreed to do a weekly report on the child's homework, tests and quizzes and to initial the child's agenda book when the child presented it to him. (Ex. 12, 9/21/00; 11/17/00.)

6. By letter of March 14, 2001, the parents again made a complaint to Mr. Sullivan about Mr. Matys, insisting that their son be permitted to retake a certain test. The letter accused Mr. Matys of mentally abusing their son and suggested that the "abuse" be reported to the Department of Social Services ("DSS"). (Ex. 12, 3/14/01.)

7. By letter of March 21, 2001, William O'Connor, M.D., Mr. Matys's primary care physician, suggested that Mr. Sullivan transfer the child to another teacher because of the stress brought upon Mr. Matys by the child's parents. Mr. Sullivan decided not to transfer the student because the student was not a problem; the problem was his parents. (Ex. 13; Testimony, Sullivan.)

8. In a telephone conversation with an attorney from the Massachusetts Teachers Association in April 2001, Mr. Matys was informed that DSS had found that the accusation of abuse had not been substantiated. (Ex. 12, 4/6/01.)

9. In each school year, Mr. Sullivan walked through the entire school once or twice a day, stopping unannounced in each classroom to observe and to question the students. In this way Mr. Sullivan was able to get a good idea about whether students were learning. (Testimony, Sullivan.)

10. In school year 2001-02, the Montview Assistant Principal gave Mr. Matys a memo dated June 2, 2002, addressing his misplacing of standardized testing material (which she characterized as a lapse in judgment), and about leaving his class unattended for five minutes. (Ex. 22.)

11. Mr. Matys responded to the memo with a memo of June 11, 2002, asserting that he inadvertently left the materials in his locked room so there was no lapse in judgment, and asserting that he did not have a teaching assignment when the Assistant Principal saw him in the hallway and mistakenly thought he had left his class unattended. (Ex. 22.)

12. In the 2002-03 school year, Mr. Matys complained to Mr. Sullivan that Mr. Sullivan was allowing the students to come back from lunch before the 30-minute lunch period was over. Mr. Sullivan suggested to Mr. Matys that some days the lunch period was a few minutes more than 30, and some days the lunch period was a few minutes less than 30, but that it balanced out in the long run. On September 10, 2002, Mr. Sullivan used a stopwatch to time Mr. Matys's lunch period and found that it was 34 minutes and 41 seconds from the time Mr. Matys left his students at lunch and the time he resumed supervision. Mr. Sullivan wrote this information in a memo to Mr. Matys. (Ex. 23.)

13. On September 26, 2002, Mr. Sullivan asked Mr. Matys and the other teachers who had refrigerators in their classrooms to remove the refrigerators immediately because having a refrigerator violated the school and the district policy. (Ex. 24; Testimony, Sullivan.)

14. On October 21, 2002, Mr. Sullivan sent Mr. Matys a letter of reprimand because Mr. Matys had allowed an education aide (who was in the classroom to service the Individual Education Plans (IEPs) of a number of students in the class), to correct student quizzes and enter the grades into Mr. Matys's rank book. (Ex. 25.)

15. Mr. Matys responded by letter of October 25, 2002, asking that the letter of reprimand be removed from his personnel file. Mr. Matys asserted that the education aide was checking for correct and incorrect answers by the special needs students, and that Mr. Matys himself graded each paper and entered each grade into his mark book. (Ex. 25.)

16. On November 6, 2002, Mr. Matys was evaluated by a psychiatrist, Wadie Alkouri, M.D., to whom he was referred by Dr. O'Connor. Dr. Alkhouri noted that Mr. Matys presented feeling anxious and stressed out "mostly because of his job feeling harassed at work by Principal." He noted that Mr. Matys reported that since February 2002 he experienced increased anxiety, poor self esteem, decreased sleep and appetite, a weight loss of 20 pounds in two months, crying spells, decreased energy and vague suicidal ideation. Dr. Alkhouri prescribed Lexapro and Klonopin and referred Mr. Matys to individual therapy. (Ex. 17, 11/6/02.)

17. Dr. Alkhouri saw Mr. Matys on November 21 and December 19, 2002, noting each time that Mr. Matys was feeling better, with less anxiety and better sleep, although he was still having "problems with the Principal." (Ex. 17, 11/21/02; 12/19/02.)

18. On January 10, 2003, Mr. Matys had a follow-up visit with Dr. O'Connor and reported continued stress "mainly stemming from harassment at work." (Ex. 20, 1/10/03.)

19. On January 30, 2003, Mr. Matys began therapy with Jeffrey Scherz, Ed.D., a licensed psychologist. Mr. Matys and his wife went together to the first meeting with Dr. Scherz. Dr. Scherz noted that Mr. Matys felt scapegoated and bullied and was seen as a troublemaker at school. (Ex. 17, 1/30/03; Ex. 4.)

20. On March 5, 2003, Dr. Alkhouri noted that Mr. Matys was in good spirits, with occasional anxiety "mostly related to work in school." (Ex. 17, 3/5/03.)

21. On March 14, 2003, Mr. Matys saw Dr. O'Connor and reported that he was "still under pressure at work." (Ex. 20, 3/14/03.)

22. On March 17, 2003, Mr. Sullivan informed Mr. Matys of his intention to place him on a Prescriptive Plan for Professional Improvement to improve Mr. Matys's teaching performance in the classroom. Through his observations of Mr. Matys in the classroom, Mr. Sullivan formed the opinion that Mr. Matys was deficient in engaging children. He wanted Mr. Matys to take a course called Research for Better Teaching which provided a blueprint for effective teaching strategies. (Testimony, Sullivan; Ex. 8.)

23. The Prescriptive Plan set forth the deficiencies that Mr. Sullivan believed needed to be addressed by Mr. Matys: 1) his classroom did "not reflect active student participation in the learning process;" 2) assessment practices "are not reflective of the need to help each student identify his/her strengths or weaknesses;" 3) homework "is assigned but very few of the assignments are actually graded, instead, a 'check' is given for completion as you pass up and down the aisles;" 4) your "instructional strategies lack diversity and variety and are not reflective of good instructional practice;" 5) you "do not utilize existing information on individual students to assist you in understanding a student's historical achievement as a tool for improving the student's achievement in your class;" 6) communication "and interaction with students and parents needs to be positive and regular;" and 7) your "apparent inability to self-examine and demonstrated unwillingness to be open to suggestion hinder your ability to make positive changes." (Ex. 8)

24. In the previous twenty-one years, Mr. Sullivan had placed five or six teachers on a Prescriptive Plan to improve their performance. He most recently placed a Mountview Middle School teacher, Kathleen Kennedy, on a Prescriptive Plan from the spring of 2002 to the spring of 2003. She was able to work her way off the Plan within the school year. (Testimony, Sullivan; "B" for identification.)

25. At his visit with Dr. Scherz on May 20, 2003, Mr. Matys reported that the Principal "lowered the boom" and placed Mr. Matys on a Prescriptive Plan. (Ex. 17, 3/20/03.)

26. On May 28, 2003, Mr. Matys reported to Dr. Alkhouri that he was feeling increased stress at school. Dr. Alkhouri added Wellbutrin to Mr. Matys's Lexapro and Klonopin. (Ex. 17, 5/28/03.)

27. By letter of June 9, 2003, Mr. Sullivan directed Mr. Matys to examine a certain student's Algebra Readiness test results to determine why the student did so poorly on the screening test when the student had received two As and a B from Mr. Matys during the previous school year. "I want you to show me, benchmark by benchmark, through your grading and assessment the justification for [the student's] grades for the school year. I find this necessary as a result of your inability to explain his performance or any demonstrated initiative on your part to examine the discrepancy between his performance and his apparent achievement in your class." (Ex. 26.)

28. On June 24, 2003, Mr. Matys reported to Dr. O'Connor that his depression was better since he had been out of school. (Ex. 20, 6/24/03.)

29. At his visits with his wife to Dr. Scherz on July 30 and August 20, 2003, Mr. Matys reported that his conflict with the Principal continued. In August, Dr. Scherz noted, "struggling but stable. Less depressed, tho[ugh] episodes of anxiety." (Ex. 17, 7/30/03; 8/20/03.)

30. On September 8, 2003, Dr. Alkhouri noted that Mr. Matys was back in school, was able to handle anxiety and was not depressed, although he was afraid that his boss would give him a hard time again. (Ex. 17, 9/8/03.)

31. On September 16, 2003, Dr. Scherz noted that the "Principal continues to demean, harass and bully" Mr. Matys "at every opportunity," but Mr. Matys was "standing strong." (Ex. 17, 9/16/03.)

32. On September 22, 2003, Mr. Matys reported to Dr. O'Connor that he was experiencing increased "stress at work again." (Ex. 20, 9/22/03.)

33. At his visits to Dr. Alkhouri in November and December 2003, Mr. Matys reported that he was still depressed and anxious about school and had occasional death wishes. (Ex. 17, 11/10/03; 12/8/03.)

34. On January 20, 2004, Dr. Alkhouri advised Mr. Matys to stay out of work for one month because "Pt. on the verge of breakdown." (Ex. 17, 1/20/04.)

35. Mr. Matys was out of work from January 21 to February 23, 2004. (Ex. 3,
p. 9.)

36. On February 10, 2004, Dr. Alkhouri noted that Mr. Matys was less anxious, but still depressed and with low energy. Dr. Alkhouri decided to have Mr. Matys taper off Lexapro and replace it with Zoloft, to take in addition to Wellbutrin and Klonopin. (Ex. 17, 2/10/04.)

37. On February 25, 2004, Robert Swotinsky, M.D., performed an independent medical examination of Mr. Matys at the request of the school district to determine whether Mr. Matys could return to work as a teacher. Dr. Swotinsky concluded that being diagnosed with anxiety and depression "is not a disqualifier for being a teacher." He prepared a report for the school district indicating that Mr. Matys could return to work. (Ex. 19, 2/25/04.)

38. On April 7, 2004, Dr. Alkhouri noted that Mr. Matys was doing well, although there were still some problems at school and he was still somewhat depressed. (Ex. 17, 4/7/04.)

39. On April 12, 2004, Mr. Sullivan received two letters of complaint from the parents of two of Mr. Matys's students. One parent believed Mr. Matys had lowered the grade of her daughter (L.D.) from an A to a C+ in retaliation for a letter the parent had written addressing her daughter's concerns that Mr. Matys was not teaching well and her daughter would not be ready for eighth grade math. The second parent complained that Mr. Matys had been sarcastic and abusive to her daughter (K.T.) since his return to work. (Ex. 12, 4/12/04.)

40. On April 16, 2004, Mr. Sullivan received another letter of complaint from the parent of one of Mr. Matys's students questioning how her daughter (C.S.) could have received a C in math just two weeks after Mr. Matys told the parent on a field trip that her daughter was an excellent student. (Ex. 12, 4/16/04.)

41. On May 6, 2004, Dr. Alkhouri noted that Mr. Matys was less depressed with less anxiety, although there were still some problems at school. (Ex. 17, 5/6/04.)

42. On April 15, 2004, Mr. Sullivan arranged a meeting for himself, Mr. Matys and the parent who complained of retaliation against her daughter L.D. As a result of the meeting, Mr. Sullivan prepared a letter to Mr. Matys dated May 10, 2004, outlining areas of concern that became manifest in the meeting: 1) Mr. Matys had too few assessment measurements to determine achievement; 2) there was no way for a student to tell if an assignment was corrected, checked or ignored; 3) there was no process to remind students that the work missed was owed; 4) two missing homework assignments should not have lowered any student's grade by two letter grades; 5) Mr. Matys's progress reporting did not indicate the he took care to assess the student's current standing in his class at the time of progress reporting; 6) Mr. Matys made no effort to contact the parents to indicate the student's average had slipped; 7) the parent had the perception that Mr. Matys was retaliating against the student. (Ex. 10.)

43. In his letter to Mr. Matys Mr. Sullivan opined, "You need to consider your current assessment practices very carefully and determine if they are appropriate measurements of a student's level of mastery. You also need to be more regular in your communication home to students who might be lagging in their performance; your progress report comment choices have come back to haunt you on more than one occasion." (Ex. 10.)

44. On April 16, 2004, Mr. Sullivan arranged a meeting for himself, Mr. Matys and the parent who complained that her daughter C.S. received a C two weeks after Mr. Matys told her that her daughter was an excellent student. Mr. Sullivan prepared a letter to Mr. Matys outlining areas of concern that became manifest at the meeting. Mr. Sullivan opined, "You need to consider your current assessment practices very carefully and determine if they are appropriate measurements of a student's level of mastery. You must be in compliance with all IEP provisions for all students. If you are told that an accommodation has been made to the plan, ask to see the IEP Amendment to the plan; this will be your assurance that all is well in changing the provisions of the IEP. You also need to be more regular in your communication home to students who might be lagging in their performance; your progress report comment choices have come back to haunt you again on this occasion; be sure what you note to parents reflects the grade reality." (Ex. 9.)

45. By letter of May 25, 2004, Mr. Sullivan provided Mr. Matys with a copy of his Prescriptive Plan and "included in bolded, italicized print, is my assessment of your progress in meeting the goal outlined for you, along with a closing recommendation." (Ex. 11.)

46. Mr. Sullivan's assessment of Mr. Matys's progress in meeting the goal of the Prescriptive Plan concluded, "While Mr. Matys has demonstrated some improvement in his ability and willingness to address some areas of the plan, the improvement has not been sufficient to merit movement off of such a plan. The areas that have been successfully addressed should be reflected in modifications to the plan. However, as a result of the concerns identified above and delineated in both formal and informal observations and monthly meetings held during the course of the current prescriptive plan, it is recommended that Mr. Matys continue on a prescriptive plan for the 2004-2005 school year." (Ex. 8.)

47. By letter of June 6, 2004, Mr. Matys responded to Mr. Sullivan's assessment of his progress on the 2003-2004 Prescriptive Plan, concluding that "I look back and reflect upon the many changes that I have made in my teaching practices. I have successfully addressed all the areas identified in the plan. I will continue to work diligently. Therefore, I state that I should be removed from the prescriptive plan." (Ex. 27.)

48. At his two visits to Dr. Alkhouri in July 2004, Mr. Matys continued to express anxiety over his job and told Dr. Alkhouri that he was convinced he was going to be fired. Dr. Alkhouri adjusted Mr. Matys's medications. (Ex. 17, 7/7/04; 7/28/04.)

49. On August 24, 2004, Mr. Matys told Dr. O'Connor that he was very anxious about returning to work because of issues with the Principal. (Ex. 20, 8/24/04.)

50. On August 25, 2004, Mr. Matys told Dr. Alkhouri that he was depressed and anxious about returning to school in one week. Dr. Alkhouri took Mr. Matys off Wellbutrin and put him on Effexor. (Ex. 17, 8/25/04.)

51. Mr. Matys returned to work in September 2004. On September 21, 2004, Mr. Matys had cataract surgery. His eye surgeon released him to return to work on September 29, 2004. Mr. Matys did not ever return to work after his eye surgery. (Ex. 13, 9/21/04.)

52. On September 23, 2004, Mr. Matys reported to Dr. Alkhouri that he was still very anxious about being harassed by the Principal. Dr. Alkhouri prepared a form indicating that Mr. Matys would be out of work from September 29 to October 29, 2004, for unspecified medical reasons. (Ex. 17, 9/23/04; 9/29/04.)

53. Dr. Alkhouri saw Mr. Matys on October 14, 2004. He opined that Mr. Matys was unable to work because of too much stress related to work. (Ex. 17, 10/14/04.)

54. On November 15, 2004, Dr. Swotinsky performed a second independent medical examination of Mr. Matys at the request of the school district. In his note of the encounter, Dr. Swotinsky noted that Mr. Matys "left work in late 9/2004 to have a cataract operation, he then went out of work because he felt he could no longer deal with Sullivan." Dr. Swotinsky opined that Mr. Matys "appears to have not a disability for teaching in general, but instead an interpersonal contact (sic) with Mr. Sullivan. The patient agrees, he states he could work elsewhere as far as he knows, then when I explained to him that the major depression that caused him to be unable to teach would be one thing, however an interpersonal problem would not necessarily be a medical issue, he then started telling me he felt hopeless about going back to work in any school district …" (Ex. 19, 11/15/04.)

55. Dr. Swotinsky prepared a report for the school district dated November 15, 2004, noting that Mr. Matys did not want any specific medical information released. Dr. Swotinsky opined that Mr. Matys could return full-time to his duties as a teacher immediately. (Ex. 13, 11/15/04.)

56. By letter of December 3, 2004, Dr. Alkhouri opined that Mr. Matys "continues to suffer from depression and anxiety and is unable to work."
(Ex. 13, 12/3/04.)

57. On December 12, 2004, Mr. Matys told Dr. O'Connor he was thinking of requesting medical disability, and that he was still out of work because of stress and harassment. (Ex. 20, 12/6/04.)

58. On December 13, 2004, Dr. Alkhouri noted that Mr. Matys "has marked anxiety about his performance with all the problems he had with the principal." He opined that Mr. Matys had PTSD with increased anxiety and an increased startle response in response to "recollections of events when he was belittled by the principal." He noted that Mr. Matys continued to be disabled by depression and anxiety. (Ex. 17, 12/13/04.)

59. On January 10, 2005, Dr. Alkhouri noted that Mr. Matys planned to file for medical disability retirement, that he was still feeling "down," that his mood was dysthemic, with vague suicidal ideation and a death wish. (Ex. 17, 1/10/05.)

60. On January 11, 2005, Mr. Matys filed an application for accidental disability retirement benefits citing "stress, anxiety and depression due to work environment - harassment, lying, humiliation, intimidation, increased work load, put on educational prescriptive plan for non-professional reasons." (Ex. 3, p. 3.)

61. M. Rachid Och, M.D. (who took over Mr. Matys's psychiatric care when Dr. Alkhouri moved out of state in August 2005) and Jeffrey Scherz, Ed.D., filed a statement in support of the application dated in September 2005, answering in the affirmative with respect to disability and permanence. They offered no response with respect to causation. (Ex. 4.)

62. In an appended letter, Drs. Och and Scherz opined that there is "little possibility of this 61 year old man being able to ever return to his previously successful profession as a teacher without triggering another decompensation with lethal potential." (Ex. 4.)

63. On February 9, 2005, Mr. Matys filed a First Report of Injury/Employee Incident Report with the school district claiming to be unable to work as a result of depression and anxiety. Mr. Matys claimed a date of injury of "2000 to present, ongoing on a regular basis." He described the incident as "Anxiety, stress and depression and despare (sic) due to hostile work environment: intimidation, humiliation, lying, harassment, grossly increased work load, being required to do tasks that other math teachers were not doing, required to take educational course intended for 2nd year teachers, placed on educational prescriptive plan for non-professional reasons." (Ex. 6.)

64. By letter of March 7, 2005, Ronald Ebert, Ph.D., reported to the school district the results of his psychological examination of Mr. Matys to determine his fitness to return to work as a teacher. Dr. Ebert opined that Mr. Matys had "active mental illness with both depression and thought disorder, as well as symptoms of post traumatic stress disorder and anxiety. He is currently experiencing feelings of worthlessness and guilt resulting in a major depression that he turns inward. In addition, he is experiencing bizarre thinking, behavioral withdrawal and physical symptoms, all of which have culminated in a recent psychotic episode. He is best diagnosed with schizoaffective disorder, rule out major depression; post traumatic stress disorder and adjustment disorder with anxiety." (Ex. 13, 3/7/05.)

65. Dr. Ebert opined, "I do not see him as able to return to work at the present time, nor frankly do I see it likely that he will be able to return to work in the foreseeable future, at least in the same work setting. Absent a resolution that will enable him to regain his self-esteem, I am concerned that his psychological disability will not abate." (Ex. 13, 3/7/05.)

66. A regional medical panel convened on January 20, 2006 to evaluate Mr. Matys. The panel was composed of Melvyn Lurie, M.D., Thomas R. Sciascia, M.D., and Joseph Albeck, M.D. Drs. Lurie and Albeck are board certified in psychiatry. Dr. Sciascia is board certified in neurology. (Ex. 15; Board of Registration in Medicine website.)

67. The panel answered unanimously in the affirmative to all certificate questions. (Ex. 15.)

68. The panel reviewed medical records and a job description, took a history and performed a mental status examination. The panel diagnosed major depression. (Ex. 15.)

69. Mental status examination revealed anger at the people Mr. Matys felt have mistreated him, with depression and no energy to perform useful work, suicidal thoughts, poor self-esteem, social self-isolation and nightmares.
(Ex. 15.)

70. The panel concluded that Mr. Matys is mentally incapable of performing the essential duties of his job based on the "severity of the patient's major depression diagnosis ad his need for multiple psychoactive medications."
(Ex. 15.)

71. The panel concluded that the disability is likely to be permanent and unlikely to respond to further rehabilitation efforts. (Ex. 15.)

72. The panel concluded that the disability might be the natural and proximate result of the personal injury sustained or hazard undergone on account of which retirement is claimed. "The panel based this conclusion on the absence of any long-standing psychiatric history preceding the alleged work related incidents following the year 2000, and documentation in the medical records that the patient had been treated for psychiatric complaints alleged to be related to the school environment." (Ex. 15.)

CONCLUSION AND ORDER

The decision of the Teachers' Retirement System to deny the application of Leopold Matys for accidental disability retirement benefits is affirmed.
The application is denied because the Petitioner was not psychiatrically disabled on his last day of work on or about September 20, 2004, and because he has failed to meet his burden of proof with respect to causation.

Disabled on last day of work

Disability is the inability to perform the essential duties of one's job. The Petitioner performed the essential duties of his job until on or about September 20, 2004 when he left work for a week in order to have cataract surgery; he never returned to work. He did not stop working because he was psychiatrically unable to perform his duties. The Petitioner may not now "claim accidental disability retirement status on the basis of a subsequently matured disability." Vest v. CRAB, 41 Mass. App. Ct. 191, 668 N.E.2d 1356, 1358 (1996).

Causation

In order to prevail on his claim, the Petitioner must prove that he is permanently unable to perform the essential duties of his job as the natural and proximate result of a personal injury sustained or hazard undergone as a result of, and while in the performance of his duties under G. L. c. 32, s. 7 (1).

The Petitioner bears the burden of proof to establish a causal nexus between an injury and his disability. Campbell v. CRAB, 17 Mass. App. Ct. 1018, 460 N.E.2d 213 (1984).

In order to meet his burden the Petitioner must prove one of two hypotheses: that his disability was caused by a single or series of work-related events, or that his employment exposed him to an "identifiable condition … that is not common and necessary to all or a great many occupations" that resulted in disability through gradual deterioration. Blanchette v. CRAB, 20 Mass. App. Ct. 479, 481 N.E.2d 216, 220 (1982).
The Petitioner cannot prevail under either hypothesis of Blanchette.
The Petitioner fails to prove the first hypothesis in Blanchette because none of the cited actions of the Principal constitutes a personal injury as that term is used in chapter 32. The term "personal injury" is to be given the same meaning under chapter 32 as it has under the Worker's Compensation statute, G. L. c. 152. Specifically excluded from the definition of "personal injury" under G. L. c. 152, s. 1 (7A) since its amendment in 1986, are mental or emotional disabilities "arising principally out of a bona fide personnel action … except such action which is the intentional infliction of emotional harm …"

The events that the Petitioner claims as personal injuries (complaints from parents who are friends with the Superintendent; the disciplinary memos he received from the Assistant Principal in 2002; the Principal's use of a stopwatch to time the Petitioner's lunch period on one occasion in 2002; the Principal's request that all refrigerators be removed in 2002; a letter of reprimand with respect to an education aide in 2002; the placing of the Petitioner on a Prescriptive Plan in March 2003; the directive in June 2003 to determine why a student did so poorly on an Algebra Readiness test when his classroom grades were good; meetings with parents who had concerns about the Petitioner's treatment of their children; the recommendation of the Principal that the Petitioner stay on the Prescriptive Plan for the 2004-05 school year) are bona fide personnel actions and do not demonstrate the intentional infliction of emotional harm.

All of the events cited above represent efforts by the Principal and Assistant Principal to improve the Petitioner's classroom performance as a teacher. In view of the letters of complaint from the parents of students L.P., K.T. and C.S., it appears that the Petitioner's classroom performance needed improvement. There is no evidence that placing the Petitioner on a Prescriptive Plan was done in bad faith, with intent to harm, humiliate or intentionally inflict emotional distress on the Petitioner.

In order to demonstrate an intentional infliction of emotional harm, the Petitioner must prove that the conduct of the Principal and Assistant Principal was extreme and outrageous, beyond all possible bounds of decency and was utterly intolerable in a civilized community. Agis v. Howard Johnson Co., 371 Mass. 140, 355 N.E.2d 315, 318-319 (1976.)
Liability "cannot be predicated upon 'mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities," nor even is it enough 'that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by 'malice.'" Foley v. Polaroid Corp., 400 Mass. 82, 508 N.E.2d 72, 82 (1987).

When measured against this rigorous standard it is clear that the behavior of the Principal and Assistant Principal do not rise to the level of intentional infliction of emotional distress and are, in fact, bona fide personnel actions.
The Petitioner does not prevail under the second hypothesis of Blanchette because his perceived personality conflict with the Principal does not constitute an "identifiable condition" not common and necessary to all or a great many occupations.

The Appeals Court noted: "As Blanchette teaches, job conflicts and arguments with superiors and subordinates, including a series of incidents over several years creating feelings of 'persecution' and unfair treatment and ultimately a diagnosed mental illness, do not 'distinguish [the applicant's] occupation from a wide variety of other occupations where employees face similar pressures and demands." Sugrue v. CRAB, 45 Mass. App. Ct. 1, 694 N.E.2d 391, 394 (1998). The Petitioner has therefore failed to meet his burden of proof under Blanchette.
Medical panel responses

In order to succeed on his application, the Petitioner must be examined by a regional medical panel that certifies that he is mentally or physically incapacitated fro further duty and that the disability is such as "might be the natural and proximate result of the accident or hazard undergone." G. L. c. 32, s. 6(3)(a).
The medical panel certification that the disability might be the natural and proximate result of an injury sustained while in the performance of one's duties is not conclusive, but is only some evidence to be considered. Wakefield Retirement Bd. v. CRAB, 352 Mass. 499, 226 N.E.2d 245 (1967); Mathewson v. CRAB, 335 Mass. 610, 141 N.E.2d 522 (1957).

The final determination on causation is for the Contributory Retirement Appeal Board "based on the facts found and all the underlying evidence, including both the medical and non-medical facts. Blanchette, 20 Mass. App. Ct. at 483.
Although the record of medical and non-medical facts supports the panel's conclusion that the Petitioner's psychiatric disability might have been caused by his relationship with the Principal that the Petitioner perceived as unfair and persecuting, the Petitioner cannot prevail on his claim as a matter of law because he did not suffer a "personal injury."
Notice requirement

I note that the Petitioner did not file a notice of injury until March 2005, almost six months after he stopped working and two months after he filed for accidental disability retirement. G. L. c. 32, s. 7 (1) provides that the injury sustained or hazard undergone on account of which retirement is claimed must have occurred within two years prior to the filing of the application, unless written notice of the injury was filed with the Board within ninety days of its occurrence.
The Petitioner filed his application on January 11, 2005, so this application must be deemed to rest on events that occurred after January 11, 2003.
This application for accidental disability retirement benefits is denied for the foregoing reasons.

SO ORDERED.


DIVISION OF ADMINISTRATIVE LAW APPEALS
____________________________________________
Maria A. Imparato
Administrative Magistrate
DATED: 8/11/09