THE COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Richard K. Erickson,

Petitioner

v. Docket No. CR-06-295

Worcester Regional Retirement Board,

Respondent

Appearance for Petitioner:

James B. Triplett, Esquire

Triplett & Fleming
25 Camp Hill Drive
Oxford, MA 01540

Appearance for Respondent:

Sean McGrail, Esquire

Donohue, Rauscher & McGrail
23 Harvard Street
Worcester, MA 01609


Administrative Magistrate:

Judithann Burke

DECISION

Pursuant to G.L. c. 32 s. 16(4), the Petitioner, Richard K. Erickson, is appealing from the April 25, 2006 decision of the Respondent, Worcester Regional Retirement Board (WRRB), denying his application for Section 7 accidental disability retirement benefits. (Exhibits 1 and 2). The appeal was timely filed. (Exhibit 20). A hearing was held on October 2, 2007 at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, 4th FL, Boston, MA.

At the hearing, twenty (20) exhibits were marked. The Petitioner testified in his own behalf. The Petitioner stated his argument for the record. One (1) tape was made of the proceedings. The record was left open until November 5, 2007 for the filing of post hearing memoranda of law. The filing date was extended to November 26, 2007, then to mid-January 2008. No post-hearing memoranda were received through January 31, 2008.

The record closed as of that date.

FINDINGS OF FACT

Based upon the testimony and documents submitted at the hearing in the above-entitled matter, I hereby render the following findings of fact:

1. The Petitioner, Richard Erickson, d.o.b. 11/13/1946, began employment as an Intermittent Police Officer in the Town of Oxford in 1972. He was appointed as a Permanent Intermittent Police Officer on August 25, 1975. He was so employed through 2005. Throughout this same period of time, he also held jobs with five (5) different private employers at various times. His longest outside private employment was that of a truck driver from approximately 1983 through 2003. (Testimony and Exhibits 2 and 15).

2. As an Intermittent Police Officer, the Petitioner was required to perform all of the tasks of a full time police officer. These tasks are delineated in the Employer's Statement in this record. (Exhibit 15).

3. A report of a physical examination for the Town of Oxford dated January 19, 1978 reflects that the Petitioner was 6'2" tall and weighed 247.5 pounds at that time. This was characterized by the physician as "obese". The report also reflects that the Petitioner's diastolic blood pressure was "slightly elevated" and that he had a "soft functional" heart murmur. (Exhibit 8).

3. The Petitioner did not work full time, i.e. forty (40) hours per week on a regular basis as a Permanent Intermittent Police Officer. From or about 1983 through 2003, he drove the truck two (2) or three (3) days per week in order to supplement his income. He regularly drove from Oxford, MA to Hartford, CT, then to Albany, NY, and back again, all in one (1) day. (Testimony).

4. The Petitioner was not a member of the Worcester Regional Retirement System (WRRS). (Exhibit 6).

5. The Petitioner filed for accidental disability retirement benefits on May 10, 2005, stating in his application that he had a cardiac disability and that he had begun to experience shortness of breath and difficulty performing strenuous activities more than two years prior to the filing of the application. In 2003, two years prior to filing his application, he weighed between 400 and 425 pounds. (Exhibits 2 and 18).

6. The Petitioner never filed a Notice of Injury or any injury reports while he was serving as a Permanent Intermittent Police Officer. (Exhibit 19).

7. D.M. Lyons, M.D., the Petitioner's treating cardiologist, answered the Disability Certification section of the Statement of Applicant's Physician, "yes, yes, no". (Exhibit 14).

8. A majority of the Single Physician Medical Panel Doctors answered the Certificates "yes, yes, no". At the time of the three Panel evaluations in early 2005, the Petitioner weighed 285 pounds. (Exhibits 3-5).

9. The WRRB denied the Petitioner's Section 7 application on April 28, 2006. (Exhibit 1).

10. The Petitioner filed a timely appeal. (Exhibit 20).

CONCLUSION

The Petitioner is not entitled to prevail in this appeal for several reasons. He has not met the threshold requirements for entitlement to the benefits set forth in G.L. c. 7(1).

First and foremost, the Petitioner was not a "member in service" during his employment as a Permanent Intermittent Police Officer. G.L. c. 32 s. 7 (1) provides that, as a condition of allowance of benefits, the applicant be a "member in service".

The Petitioner, who had intermittent employment with the Oxford Police Department, was not a member in service. He paid no accumulated deductions into the retirement system and he cannot avail himself of an accidental disability retirement.

Next, the Petitioner's own treating physician, Dr. Lyon, failed to certify that his disability is causally related to his employment. Accordingly, the Petitioner's application did not meet the threshold criteria for the convening of a Medical Panel.

PERAC regulation 840 CMR 10.09 provides:

(2) At any stage of a proceeding on an ordinary or accidental disability retirement application the retirement board may terminate the proceedings and deny the application if it determines that the member cannot be retired as a matter of law.

Notwithstanding the deficiencies in the Petitioner's application already noted herein, the local retirement board did not avail itself of this provision and convened a Medical Panel.

The majority of the Panel failed to certify that the Petitioner's disability is such as might be the natural and proximate result of a personal injury or hazard undergone while in the performance of his duties.

Finally, the Petitioner was overweight early in his career and his diastolic blood pressure was slightly high at that time. By 2003, when he began to experience cardiac symptoms, he weighed 400+ pounds. He never filed any injury reports or Notices of Injury related to his employment with the Oxford Police Department.

Accordingly, the decision of the WRRB, denying the Petitioner's application for accidental disability retirement benefits is affirmed.

So ordered.

Division of Administrative Law Appeals,
BY:

Judithann Burke
Administrative Magistrate

DATED: March 10, 2008


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