COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals


Michael McGrath,

Docket No. CR-07-1157
Petitioner

v.

Saugus Retirement Board,

Respondent

Appearance for Petitioner:

Michael McGrath

32 Summer Drive
Saugus, MA 01906

Appearance for Respondent:

Lane Rideout, Esq.

Law Office of Michael Sacco
285 College Highway
P.O. Box 479
Southampton, MA 01073

Administrative Magistrate:

Joan Freiman Fink, Esq.


SUMMARY OF DECISION

The Respondent's Motion to Dismiss is granted on the grounds that the Petitioner's claim for an accidental disability retirement based on a psychological/psychiatric condition has been litigated and decided in the matters of McGrath v. Saugus Retirement Board, CR-03-722 and McGrath v. Saugus Retirement Board, CR-05-106.


DECISION

Pursuant to G.L. c. 32, §16(4), the Petitioner, Michael McGrath, appealed the December 12, 2007 decision of the Respondent, Saugus Retirement Board, denying his application for accidental disability retirement brought pursuant to G.L. c. 32, § 7. (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 July 15, 2009 at the offices of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA. Counsel for the Respondent appeared and the Petitioner's wife appeared on behalf of her husband who was then hospitalized. At the outset of the hearing, I took administrative notice of the two prior decisions in this matter, McGrath v. Saugus Retirement Board, CR-03-722 and McGrath v. Saugus Retirement Board, CR-05-106. The Respondent filed a Motion to Dismiss with three accompanying exhibits which I marked into evidence as Exhibits 1 - 3. I allowed the record to remain open until September 29, 2009 for the filing of a written response to the Respondent's Motion to Dismiss. Upon receipt of the Petitioner's submission on September 29, 2009, the record was declared to be closed.

FINDINGS OF FACT

I hereby adopt the original findings of fact numbered 1- 23 as made by DALA in its September 9, 2005 decision in McGrath v. Saugus Retirement Board, CR-05-105. These findings were affirmed by the Contributory Retirement Appeal Board (CRAB) on March 6, 2006 and were also affirmed by the Essex Superior Court on December 28, 2006, McGrath v. Contributory Retirement Appeal Board et al., Civil Docket ESCV2006-00573, after which the Petitioner did not pursue a further appeal. In addition, based on the evidence in the July 15, 2009 hearing on the Motion to Dismiss, I make additional findings of fact nos. 24 - 30.

1. McGrath (DOB 7/25/56) worked as a Police Officer for the Town of Saugus, first as a reserve officer between 1981 and 1989, and then as a permanent police officer from January 1989 to February 2000.

2. McGrath stopped working on February 1, 2000 due to a back injury.

3. On November 10, 2000 McGrath filed an application for accident disability retirement pursuant to G.L. c. 32, § 7, based on his back injury. ("First Voluntary Application.")

4. On October 19, 2000, the Saugus Chief of Police filed an involuntary application for accidental disability retirement. ("First Involuntary Application") based upon a back injury.

5. McGrath was examined by an orthopedic regional medical panel on March 8, 2001 pursuant to G.L. c. 32, § 7. This medical panel answered in the affirmative with respect to the issues of disability and causation, and in the negative with respect to the issue of permanence. The Board agreed to have McGrath undergo rigorous physical therapy and undergo a second medical panel examination within a year.

6. A second orthopedic regional medical panel examined McGrath on February 28, 2002 and answered in the negative with respect to the existence of a disability.

7. On April 4, 2002, the Board denied McGrath's First Voluntary Application based upon the negative opinion with respect to disability offered by the orthopedic medical panel which examined McGrath on February 28, 2002.

8. McGrath appealed the Board's denial of his First Voluntary Application to CRAB which assigned the matter to DALA for hearing on the merits. After two continuances of the hearing date, McGrath withdrew his appeal.

9. On April 16, 2002, the Saugus Chief of Police ordered McGrath back to duty based on the report of the orthopedic medical panel which examined him on February 28, 2002.

10. On April 19, 2002, McGrath wrote to the Saugus Chief of Police and requested a psychological examination before he returned to duty.

11. On June 12, 2002, McGrath was examined by Samuel Migdole, Ed.D., who performed a psychological evaluation and concluded that McGrath was not recommended for a return to duty. Dr. Migdole recommended further psychological evaluation.

12. On September 11, 2002, McGrath filed an application for accidental disability retirement pursuant to G.L. c. 32, § 7 based on a psychiatric disability ("Second Voluntary Application") and submitted the report of Dr. Migdole in support thereof.

13. Dr. Migdole filed a Statement in Support of the Second Voluntary Application and opined in the affirmative with respect to the question of disability. Dr. Migdole stated he was unable to certify his opinion with respect to permanence or causation.

14. Notwithstanding Dr. Migdole's failure to opine as to permanence and causation, the Board processed the Second Voluntary Application and McGrath was examined by a regional medical panel pursuant to G.L. c. 32, § 6 in January 2003. The medical panel majority opined in the negative with respect to the existence of a psychiatric disability.

15. On October 2, 2003, the Board denied McGrath's Second Voluntary Application on the basis of a negative opinion by the majority of the medical panel as to the existence of a psychiatric disability.

16. McGrath appealed to CRAB which assigned the matter to DALA for a hearing on the merits. On January 16, 2004, DALA issued a decision affirming the Board's denial of McGrath's Secondary Voluntary Application as a matter of law. McGrath v. Saugus Retirement Board, CR-03-722 (DALA), aff'd (CRAB 2006). DALA noted that the incidents that McGrath claimed as psychologically disabling had occurred more than two years prior to the filing of his Second Voluntary Application, and he had failed to file notices of injury with respect to these incidents. DALA also opined that it was not clear that the Board should have processed the Second Voluntary Application because Dr. Migdole had not opined in the affirmative with respect to the issues of permanence and causation.

17. CRAB affirmed the January 16, 2004 DALA decision on October 12, 2004. McGrath did not pursue a Superior Court appeal, pursuant to G.L. c. 30A, § 14.

18. On February 25, 2004, McGrath was referred to Dr. Migdole by the Saugus Police Department for a fitness evaluation. Dr. Migdole performed a psychological evaluation and found McGrath to be unfit for duty. He recommended a psychiatric evaluation as the next step in the fitness for duty evaluation.

19. Dr. Nechal Tejwani performed a psychiatric evaluation of McGrath on April 13, 2004. He diagnosed chronic, work-related post-traumatic stress disorder ("PTSD") and found McGrath unfit to return to duty as a police officer.

20. On June 2, 2004, the Saugus Chief of Police filed an involuntary application for ordinary disability retirement ("Second Involuntary Application") pursuant to G.L. c. 32, § 6 based on a psychiatric claim and supported it with the evaluations conducted by Drs. Migdole and Tejwani.

21. McGrath was examined on December 2, 2004 pursuant to G.L. c. 32, § 6 by a regional medical panel. The regional medical panel answered unanimously in the affirmative with respect to the issues of disability and permanence and offered a diagnosis of PTSD based on a work-related incident that occurred in 1993 for which no notice of injury had been filed.

22. On February 3, 2005, the Board voted to approve the Second Involuntary Application and retire McGrath for ordinary disability.

23. On February 25, 2005, McGrath filed an appeal of the Board's decision, arguing that the Saugus Chief of Police should have filed for an involuntary accidental disability retirement based on the reports of Drs. Migdole and Tejwani.

24. The case was referred by CRAB to DALA for a hearing. After a hearing, DALA issued a decision affirming the Board's decision approving the involuntary application for ordinary disability retirement. This decision was subsequently affirmed by CRAB. McGrath v. Saugus Retirement Board, CR-05-106 (DALA 2005), aff'd (CRAB 2006).

25. McGrath appealed the CRAB decision to the Essex Superior Court pursuant to G.L. c. 30A, § 14 and the parties filed respective Motions and Cross-Motions for Judgment on the Pleadings. The Essex Superior Court affirmed CRAB's decision by adopting the position of the Board and dismissed McGrath's Complaint. McGrath v. Contributory Retirement Appeal Board et al., Civil Docket ESCV2006-00573, Superior Court Department of the Trial Court, Essex County (December 28, 2006).

26. On October 30, 2007, McGrath filed another application for accidental disability retirement with the Saugus Retirement Board on the very same basis of PTSD - Post-Traumatic Stress Disorder. He also noted that he had been undergoing cancer treatments for the past year. (Exhibit 3.)

27. McGrath attached to his October 30, 2007 application for accidental disability retirement benefits various medical records, including a June 12, 2002 psychological fitness for duty evaluation by Dr. Migdole, the medical panel certificate and report of one member of the 2003 medical panel, and the joint medical panel certificate and narrative report of the medical panel which examined him in December of 2004. (Exhibit 3.)

28. On December 12, 2007, the Board denied this October 30, 2007 application without convening a medical panel on the grounds that his claim for accidental disability retirement based on a psychiatric condition had been litigated to conclusion in the matter of McGrath v. Saugus Retirement Board, CR-05-106 (DALA 2005), aff'd (CRAB 2006).

29. Written notice of this denial was sent to McGrath by letter dated December 14, 2007. (Exhibit 1.)

30. By letter received by DALA on December 31, 2007, McGrath appealed this decision to CRAB. (Exhibit 2.)

CONCLUSION

After reviewing the evidence presented in this case, I allow the Respondent's Motion to Dismiss on the grounds that McGrath's claim for accidental disability retirement has been previously litigated to conclusion in McGrath v. Saugus Retirement Board, CR-03-722 (DALA), aff'd (CRAB 2006) and McGrath v. Saugus Retirement Board, CR-05-106 (DALA 2005), aff'd (CRAB 2006).

Through his filing of a Third Voluntary Application based on his condition of PTSD, McGrath sought to re-litigate his prior attempts to receive accidental disability retirement benefits on a claim of psychiatric disability. In his Second Voluntary Application for accidental disability retirement benefits based on a psychological incapacity, the majority of the medical panel responded in the negative to the existence of a psychological/psychiatric disability. The Saugus Retirement Board then denied the application based upon the negative medical panel. This denial was affirmed by DALA and CRAB. Since McGrath sought no further judicial review, the matter was concluded.

Mr. McGrath did seek judicial review of the Saugus Retirement Board's February 3, 2005 decision to retire him for ordinary disability retirement, asserting that the Second Involuntary Application should have been for accidental disability retirement instead of ordinary disability retirement. The Board's decision was affirmed by DALA and CRAB and subsequently by the Essex Superior Court in a decision rendered on December 28, 2006. McGrath v. Contributory Retirement Appeal Board, supra. Since McGrath did not seek further judicial review of the decision rendered by the Essex Superior Court, that matter was effectively concluded as well.

The doctrine of res judicata refers to an issue which has been definitely settled by a judicial decision and is an affirmative legal defense that may be raised by a party against whom a claim is initiated. Res judicata bars the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions that could have been, but was not raised in the first suit. Black's Law Dictionary, Second Pocket Edition, West Group, 2001. In the case of Fabrizio v. U.S. Suzuki Motor Corporation, 289 N.E. 2d 897, 898 (1972), the Supreme Judicial Court held that the "burden is on the party claiming res judicata by reason of a prior adjudication to allege enough facts in his plea or motion to establish that the cause of action was (1) between the same parties; (2) concerned the same subject matter; and (3) was decided adversely to the party seeking to litigate the subject again."

In this case, the doctrine of res judicata applies as the three criteria outlined in the Fabrizio, supra, are met. The parties in the current case are the same parties as the prior two cases, i.e., Michael McGrath and the Saugus Retirement Board.


McGrath has appealed the December 12, 2007 denial of his Third Voluntary Application for accidental disability retirement which was based on his claim of being permanently disabled as a result of Post-Traumatic Stress Syndrome (PTSD). The subject matter of this claim, i.e., psychological disability as a result of PTSD, is the very same subject matter that was addressed in his two prior appeals: one of the Board's denial of his Second Voluntary Application (denying accidental disability retirement based on a psychological claim) and the Board's granting of the Second Involuntary Application (awarding ordinary disability retirement based on Post-Traumatic Stress Syndrome.)

McGrath was unsuccessful in both of these prior appeals. He chose not to seek judicial review of the CRAB decision denying him accidental disability retirement benefits and also chose not to seek judicial review of the Essex Superior Court decision which had affirmed the decision of the Board, DALA, and CRAB, awarding him ordinary disability retirement. In accordance with the doctrine of res judicata, since both these cases were decided adversely to McGrath, he may not now seek to re-litigate the Board's refusal to grant him accidental disability retirement by filing another claim for benefits based on the same psychological disability.

For the foregoing reasons, the Respondent's Motion to Dismiss the Petitioner's appeal of the December 12, 2007 decision of the Saugus Retirement Board denying his application for accidental disability retirement is allowed. The appeal is dismissed with prejudice.

SO ORDERED.


DIVISION OF ADMINISTRATIVE LAW APPEALS

Joan Freiman Fink
Administrative Magistrate

Dated: 10/30/09