COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Walter Fender,

Petitioner

v. Docket No. CR-05-31
Remand Docket No. CR-08-736

DATED: 1/8/10


Plymouth County Retirement Board,


Respondent

Appearance for Petitioner:

Vincent A. Murray, Esq.

Murray & Murray
Two Center Plaza, Suite 420
Boston, MA 02108

Appearance for Respondent:

Michael Sacco, Esq.

Law Offices of Michael Sacco
285 College Highway
PO Box 479
Southampton, MA 01073-0479

Administrative Magistrate;

Maria A. Imparato, Esq.

CASE SUMMARY


The two deaths and one suicide attempt in the Petitioner's department do not constitute personal injuries because the events did not occur while the Petitioner was in the performance of his duties and the Petitioner did not witness the events. When considered as part of the series of events claimed by the Petitioner, none of which constitutes a personal injury, the series of events does not become a personal injury. Furthermore, the medical panel did not certify that the deaths and suicide attempt were causative of the Petitioner's disability.

CLARIFICATION ON REMAND


Procedural History

Walter Fender filed a timely appeal under G.L. c. 32, s. 16(4) of the January 4, 2005 decision of the Plymouth County Retirement Board (Board) to deny his request for accidental disability retirement benefits.

I held a hearing on July 25, 2005 at the office of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, Boston, MA. I admitted 24 documents into evidence, and marked the pre-hearing memoranda of counsel for identification. Mr. Fender testified . The record closed on August 8, 2005 with the filing of post-hearing briefs.

I issued a decision on September 2, 2005 affirming the Board's denial of accidental disability retirement benefits. The Petitioner appealed to the Contributory Retirement Appeal Board (CRAB) and by decision of March 6, 2006, CRAB affirmed DALA's decision "for the reasons set forth" in the decision.
The Petitioner appealed CRAB's decision to Suffolk Superior Court in Civil Action no. 06-1330. CRAB's decision was affirmed by Memorandum of Decision and Order on Cross Motions for Judgment on the Pleading issued on March 19, 2007.
The Petitioner appealed the decision of the Superior Court to the Appeals Court. By decision of October 3, 2008, the Appeals Court affirmed CRAB's decision in part, and remanded the case to CRAB to "review Fender's application for accidental disability retirement benefits to the extent that his claim of a cognizable personal injury is predicated on the series of work related events proffered," and to "provide a reasoned explanation of both its reevaluation of this issue and any conclusions it may reach concerning Fender's eligibility for accidental disability retirement benefits under other relevant statutory criteria." Fender v. Contributory Retirement Appeal Board, 72 Mass. App. Ct. 755, 764-765 (2008). The Appeals Court affirmed CRAB's decision to the extent that it concluded the Petitioner had not established that he had been exposed to "an identifiable condition … that is not common and necessary to all or a great many occupations." Id., 72 Mass. App. Ct. at 761.

The parties agreed that this matter did not require further hearing and agreed to submit memoranda of law. The record closed on October 30, 2009 with the submission of memoranda.

Review of Petitioner's application for accidental disability retirement


The Petitioner filed an application for accidental disability retirement benefits on or about March 17, 2004 citing "extreme work related stress [beginning on October 29, 2001] resulting in severe clinical anxiety and depression leading to a serious suicide attempt on September 18, 2003." The Petitioner indicated that the reason for his disability was "hazard." (Ex. 3, p. 5.)

In pages appended to the application, the Petitioner listed the "Incident(s) or Hazard" that he claims caused his disability:

1) The death of the Director of Operations on March 25, 2003;
2) The Acting Director of Operations attempted suicide on August 27, 2003'
3) An engineer in the Engineering Division died of Legionnaire's disease;
4) Developers attempted to build large 40B projects at multiple locations within the Town;
5) Plans for redeveloping the downtown area and making improvements to traffic flow on Route 139;
6) Time consuming events including one of the worst winters in many years, the need to cleanup and dispose of large piles of seaweed on the beaches, and allegations of misconduct regarding Highway Department employees;
7) A meeting of the Capital Budget Committee during which the Petitioner's employment contract was reviewed and the need for setting goals was discussed. The meeting ended after 11 p.m.; and
8) The next morning there was a Staff Meeting with the supervisors and the Petitioner worked a full day. (Ex. 3, Appendage.)
After hearing, DALA, CRAB and the Appeals Court determined that the
Petitioner relied on the following series of events as having caused his disability:
1) A 51-inch snowfall in February 2003;
2) The death of the Director of Operations unexpectedly in March 2003;
3) The seaweed cleanup during the spring and summer of 2003;
4) The suicide attempt of the Acting Director of Operations in August 2003;
5) A fatal case of Legionnaire's disease in the Engineering Department in September 2003;
6) A work schedule of 12-15 hours a day during August and September 2003;
7) The threatened walkout of employees because of a malfunction in the air-conditioning system on September 15, 2003; and
8) The DPW board meeting on September 15, 2003.


Personal injury

The Petitioner bears the burden of proof with respect to causation, and in order to meet his burden he must prove one of two hypotheses: that his disability was caused by a single or series or work-related events, or that his employment exposed him to an identifiable condition of employment 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, 485 (1985).
The Appeals Court affirmed CRAB's decision with respect to the identifiable condition of employment prong of the Blanchette standard. The question is whether the Petitioner has met his burden of proof with respect to the first prong of Blanchette, that is, whether the Petitioner's disability was proximately caused by a single or series of work-related events.

The term "personal injury" is defined in G.L. c. 152, but it is not defined in G.L. c. 32. The term "personal injury" in c. 32 is to be "interpreted in harmony with c.152" the worker's compensation statute. Sugrue v. CRAB, 45 Mass. App. Ct. 1, fn 4 (1998), and cases cited. (emphasis supplied.)

In so holding, the Appeals Court acknowledged that the term "personal injury" cannot have the identical meaning in both c. 152 and c. 32 because the standards for recovery are different in each statute. The worker's compensation statute allows recovery for a personal injury "arising out of and in the course of his employment." (G.L. c. 152, s. 26.) The retirement statute allows recovery for accidental disability retirement benefits if the member is permanently unable to perform the essential duties of his job by "reason of a personal injury sustained or hazard undergone as the result of, and while in the performance of his duties." (G.L. c. 32. s 7(1).) See, Damiano v.CRAB, 72 Mass. App. Ct. 259 (2008).

G.L. c. 152, s. 1(7A) provides in pertinent part:

Personal injuries shall include mental or emotional disabilities only
where the predominant contributing cause of such disability is an
event or series of events occurring within any employment. … No
mental or emotional disability arising principally out of a bona fide,
personnel action including a transfer, promotion, demotion, or
termination except such action which is the intentional infliction of
emotional harm shall be deemed to be a personal injury within the
meaning of this chapter.

CRAB concluded that the two deaths and one suicide attempt in the Petitioner's department could not form the basis of his claim "because the events are not 'personal injuries' to the Petitioner." The Appeals Court has asked for clarification to explain why these events were omitted from the analysis of the Petitioner's claim.

The deaths and suicide attempt in the Petitioner's department were omitted from the analysis of the Petitioner's claim because the events did not occur while the Petitioner was in the performance of his duties and the Petitioner did not witness the events. Therefore, the events cannot rise to the level of a personal injury under c. 32, s. 7(1).

Furthermore, it is unclear how an injury to another person that does not occur while the member is in the performance of his duties, and is not witnessed by the member, can be considered a personal injury to the member. All employees are at risk for having their co-workers sicken and die while off-duty. All employees are at risk for having a co-worker attempt to commit suicide while off-duty. These events are not personal injuries to the Petitioner because they did not happen to him and were not witnessed by him.

These are not the kind of events contemplated in Blanchette where the Appeals Court acknowledged that mental incapacity can occur where there is an identifiable condition of employment such as in occupations "involving constant exposure to life threatening situations or to continual traumatic or depressing events." Blanchette, 20 Mass. App. Ct. at 487, fn. 7. This footnote refers to occupations such as firefighting and policing where the employee's life is in danger while performing his job, and he is likely to witness gruesome and tragic deaths while in the performance of his duties. That is not the case here.

Series of events

The series of eight events claimed by the Petitioner as causative of his mental disability do not rise to the level of personal injuries. At least one of the events must rise to the level of a personal injury or the Petitioner cannot prevail. If none of the claimed events rises to the level of a personal injury, then the series of events cannot rise to the level of a personal injury. Stringing together a series of events, none of which is a personal injury, does not create a personal injury. Zero plus zero equals zero.

When the two deaths and suicide attempt are removed from the analysis, we are left with stressful conditions that all employees face in performing their work. A heavy snowfall, the need to clean up seaweed on the beaches, long work days, feisty employees and a long board meeting with one's employers are neither personal injuries, nor do they constitute an identifiable condition of employment, as previously discussed in DALA's decision and affirmed by the Appeals Court. The Petitioner has failed to meet his burden of proof under the Blanchette standard.

With respect to the Petitioner's claim that each of the events, that is, the two deaths and one suicide attempt, produced increased workplace demands on him and increased his stress, I conclude that this claim brings us back to the identifiable condition of employment claim. The fact that the Petitioner's job was stressful, for whatever reason, does not distinguish the Petitioner's job from a multitude of other jobs. Once again the Petitioner has "not shown anything peculiar in his work … which would distinguish his occupations from a wide variety of other occupations where employees face similar pressures and demands." Id., 20 Mass. App. Ct. at 487.

Despite the fact that the medical panel answered in the affirmative to the issue of causation in its certificate, when asked to clarify what specific event had rendered the Petitioner disabled with major depression, the panel opined, "the personal injury sustained or hazard undergone [by Fender] which is the basis of the claimed disability is the continuing inadequate staffing for demands made upon the claimant by his superiors."

The panel made no mention of the two deaths and one suicide attempt in the department as causative of the Petitioner's disability.

The medical panel opined that the stress caused by inadequate staffing was the cause of the Petitioner's disabling depression. But inadequate staffing does not distinguish the Petitioner's job from a wide variety of other occupations "where employees face similar pressures and demands." Id.

I conclude that the Petitioner has failed to meet his burden of proof with respect to causation, and that this application for accidental disability retirement benefits should be denied.


DIVISION OF ADMINISTRTIVE LAW APPEALS
___________________________________________
Maria A. Imparato
Administrative Magistrate
DATED: 1/8/10