COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Jean Green,

Petitioner

v. Docket No. CR-06-1121

State Board of Retirement,

Respondent


Appearance for Petitioner:

Jean Green, pro se

211 Parke Avenue
Quincy, MA 02171

Appearance for Respondent:

Crystal Chow, Esq.

State Board of Retirement
One Ashburton Place, 12th Floor
Boston, MA 02108

Administrative Magistrate:

Sarah H. Luick, Esq.

DECISION

Pursuant to G. L. c. 32, s. 16(4), the Petitioner, Jean Green, is appealing the December 1, 2006 decision of the Respondent, State Board of Retirement, refusing to reconsider the Group 1 classification of her position of Social Worker/Case Manager, to reclassify it in Group 2. (Ex. 2) The appeal was filed December 15, 2006. (Ex. 1) A hearing was held January 16, 2008, at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, 4th Floor, Boston, MA 02114, pursuant to G. L. c. 7, s. 4H.

Various documents are in evidence. (Exs. 1 - 6) The parties filed pre-hearing memoranda. ("A") One tape was used. The Petitioner testified, and presented the testimony of two prior co-workers: Janice D'Avignon, Ph.D., a licensed clinical psychologist; and Mary Engels, a licensed clinical social worker. Both parties made arguments on the record. The parties also addressed the timeliness of the appeal.

FINDINGS OF FACT

1. Jean Green, d.o.b. 11/21/35, retired from her job of Social Worker/Case Manager at the Massachusetts Hospital School in Canton. She retired under superannuation in Group 1, effective February 9, 1996. ("A". Ex. 4. Testimony)

2. The application to retire form included a place to check off which of the four group classifications your job was given, if you knew. She did not check off a job classification. No other discussion about group classification was part of the form. Another document done in connection with retiring, the Salary Request and Release form, also did not contain any discussion that jobs are given group classifications at retirement. In neither form was there any reference to G. L. c. 32, § 3(2)(g). Ms. Green did not know anything about her job classification or what it meant to be put in Group 1. When she was awarded retirement, she was not informed about any right to appeal her group classification. (Ex. 4. Testimony)

3. Ms. Green was a licensed clinical social worker. She worked for the state from November 27, 1977, last working at the Massachusetts Hospital School. She worked with children and young adults attending the school, which covered first grade through high school with students attending up to twenty-two years old. All the students had special needs. Some had physical disabilities, over 50% were mentally retarded and/or emotionally disturbed. Some had sustained traumatic brain injuries. Some had a combination of conditions. The students' impairments were substantial, and were "behavioral, psychological, neurological and cognitive." Most of the students were residential, living in cottages on the grounds with about 35-40 students in each one. The school covered a regular grade school and high school academic program. There were about 150-200 students at any given time. The students were residential since local school systems were unable to help them, or their families wanted them to attend the school. The students came through the Department of Mental Retardation, the Department of Mental Health, and the Massachusetts Rehabilitation Commission. (Exs. 3 & 6. Testimony)

4. Ms. Green carried a caseload of about 25 students at any given time. Toward the end of her career, she was working with the older students. She spent 65-70% of her time working directly with the students. When she was with a student or a group of her students, she had responsibility for their safety and wellbeing in addition to providing them with guidance and instruction. She would need to physically intervene to break up disputes and other aggressive behaviors. She and other staff at the school received "professional training in non-violent crisis intervention." She would counsel and guide them in daily life skills, coping mechanisms, awareness about their disabilities, and self-esteem. She would promote interaction among peers, and also deal with discipline as needed when inappropriate and disruptive or dangerous behaviors were not under control. The goal of her work was to make her students as independent and functioning as they could be as they were being prepared to leave the school, and/or to go to other placements. She would show them how to use public transportation, stores, manage their money, and how to do other needed daily living tasks. She helped to secure the services they would need to address their impairments upon leaving the school. She also met with the families of the students. The remainder of her time was spent doing recordkeeping and data entry as well as attending meetings about the students' needs. (Exs. 3 & 6. Testimony)

5. Ms. Green would be assigned particular students by the Director of Case Management at the school. She did not supervise staff below her although she worked as part of an interdisciplinary team to help each student. This approach also involved interactions and discussions with the referring agencies and with the Department of Social Services. All the students had individual service and education plans that were implemented by staff, including Ms. Green. (Exs. 3, 5 & 6. Testimony)

6. The job description for Social Worker/Case Manager at the Massachusetts Hospital School listed the following general description:
Assumes responsibility for case management of 25 or more disabled patient/students both residential and day school, provides services to families of these students and acts as a liaison between MHS staff and these families. (Ex. 5)

The requirements for the job included prior experience in social work and social casework, and goes on to state the following:
Social Workers in various state agencies including social service, correctional facilities, health care or mental health facilities, work with mentally ill, retarded, physically handicapped and other clients under considerable emotional stress who may become verbally or physically abusive; visit clients in their homes, hospitals, prisons, various placements such as group or foster care facilities, training facilities, or work programs, etc., and may be called on a 24-hour basis. (Ex. 5)

Numerous specific qualifications are listed in the job description that address one-on-one interactions with the students at the school including:
Considerable knowledge of the principles of human behavior ….
Considerable knowledge of the principles and practices involved in the handling of clients with personal and emotional problems …. Ability to gain and hold confidence of patients, children and other persons in institutions or released from institutional care or of dependent and handicapped persons …. Ability to maintain harmonious working relationships with social agencies, institutions, officials, and employees and relatives of patients or children …. Ability to secure social information and make proper recommendations …. Knowledge of interviewing techniques … Ability to gather information through questioning and observing individuals …. Ability to communicate effectively in written and oral expression …. Ability to give oral and written instructions in a precise, understandable manner …. Ability to deal tactfully with others …. Ability to establish rapport with persons from different ethnic, cultural and/or economic backgrounds … Ability to interact with people who are under physical and/or emotional stress …. Ability to maintain a calm manner in stressful and emergency situations …. Ability to work in group situations …. Ability to work in a team setting …. Ability to motivate clients …. Ability to exercise sound judgment … Ability to exercise discretion in handling confidential information …. Willingness to be subjected to verbal abuse from others in a job related setting …. Willingness to be subjected to physical abuse from others in a job related setting …. Willingness to work with emotionally disturbed or mentally retarded clients …. Knowledge of the types and causes of psychological disorders …. Knowledge of the types and uses of psychological tests for determining individual interests, aptitudes, skills and occupational preferences …. (Ex. 5)

7. The job description also addresses specific administrative tasks of a Social Worker/Case Manager at the Massachusetts Hospital School:
Provides documentation in medical records and social service records of pre-evaluations, goals of admission, discharge planning, home visits, and psycho-social history …. Writes quarterly progress notes on each patient and enters these in records to keep staff informed of situations …. Writes 60-day updates on discharge planning for each new patient …. Reviews reports and pertinent patient/student records in order to determine progress and appropriateness of services and to make recommendations concerning course of action for effectively meeting clients needs …. Maintains confidentiality of all patient/student information …. Maintains records of individual educational in-service and program attendance …. Reads and maintains current knowledge of appropriate meeting minutes …. Participates in … data collection …. Attends morning … and other meetings relative to patient/student issues …. Performs related duties such as attending meetings and hearings, answering inquiries and providing information, maintaining records, preparing reports and correspondence, recommending approval or payments to service providers, and providing or arranging for transportation for clients to enable them to receive required services. (Ex. 5)

Related abilities include:

Ability to prepare effective written reports …. Knowledge of the principles of social work including terminology …. Knowledge of the methods of general report writing …. Ability to understand, explain and apply the provisions of the laws, rules, regulations, policies, procedures, specifications, standards and guidelines governing assigned unit activities …. Ability to read and interpret documents such as case histories and records …. Ability to accurately record information provided orally … Ability to assemble items of information in accordance with established procedures …. Knowledge of the types and uses of agency forms …. Knowledge of proper telephone procedures for making and receiving agency calls …. Knowledge of the placement, referral and related sources available for providing services to clients such as social casework services, health care services, day care services, adoption placement services, counseling services, foster care services, homemaker services, family and child protective services, psychological services, psychiatric services, and/or employment services. …. Knowledge of the types and availability of public or private community-based organizations and resources for providing services for the rehabilitation of ex-offenders …. (Ex. 5)

8. Ms. Green had retired for awhile when she spoke to a nurse with whom she had worked for years at the Massachusetts Hospital School, and felt as a result, that she could have qualified for a Group 2 classification at the time of her retirement due to her hands-on work with the students. As a result, Ms. Green petitioned the State Board of Retirement by letter of October 19, 2006 to reconsider her Group 1 classification. She provided the Board with her job description. She noted how she had to be able to and did intervene with students who became behavioral problems. She noted how she had received training in crisis intervention. She noted how she worked directly with the students who were mentally retarded. (Ex. 3. Testimony)

9. By letter of December 1, 2006, the State Board of Retirement denied Ms. Green's petition to reconsider her classification. The Board noted she had retired in 1996, and only offered the following: "Please be advised that the Board voted to deny reconsideration of your request." (Ex. 2) Ms. Green appealed by December 15, 2006. (Ex. 1)


Conclusion

Timeliness of the appeal

Ms. Green took no action at the time she retired to contest the group classification she received from the State Board of Retirement. She is now, some ten years later, seeking to contest that classification. Her testimony is credible that she had no idea about group classifications when she retired, or that a group classification would impact the size of her superannuation retirement allowance. Although the State Board of Retirement at the hearing and in its pre-hearing memorandum argues that her appeal is not timely made, the Board presented no evidence how at the time of her retirement, the Board had provided Ms. Green with information concerning her group classification. There was no evidence presented to show the State Board of Retirement at the time she retired, informed Ms. Green that if she was aggrieved by the Group classification she received that she had the right to appeal.

Ms. Green filed to retire in and around January 1996 with an effective date of retirement of February 9, 1996. The retirement forms she completed at that time nowhere discussed the impact of the different job classifications. Her failing to check off a group on her application form, in light of her testimony, shows she did not know what group she was in when she sought to retire. The Salary Request and Release form did not even direct her where to find out about group classifications. See, Ex. 4.
Against this background, I do not find she received adequate notice that her job was being classified in Group 1 for retirement purposes, or that this would mean a smaller retirement allowance than if she had received a different group classification. She did not know she had any grievance against the State Board of Retirement at the time she retired.

In Towler v. Contributory Retirement Appeal Board (CRAB), 37 Mass. App. Ct. 227 (1994), the Court addressed the actions of a widow of a fire fighter who had died minutes after returning to the fire station from the scene of a fire he had been fighting. The local retirement board had not provided the widow with any information concerning her potential rights to a G. L. c. 32, §100 benefit, which is a generous alternative to an accidental death benefit under G. L. c. 32, § 9, which she sought and received. On the facts of how her husband died, she would have likely received Section 100 benefits. Years later in 1977, she filed to substitute the Section 100 benefits for her Section 9 benefits. She then decided to withdraw the application. Years later in 1989, she again filed for Section 100 benefits. The widow lost her quest for Section 100 benefits in 1989. The Court acknowledged the widow may have been in "good faith ignorance of the law in 1967" and may have had a right to pursue this claim in 1977 "notwithstanding her prior receipt of benefits under Section 9." Id., at 282. But, the Court found she could not prevail using this same argument in 1989; that by withdrawing her 1977 application she made a knowing election or choice to continue receiving Section 9 benefits. The Court noted how a party can waive a right by failing to assert it, citing Spence v. Reeder, 382 Mass. 398, 411 (1981) The Court also recognized that "CRAB, acting under G. L. c. 32, Section 16(4), [has] to strike a reasonable balance between the rights of claimants and the interests of retirement boards in fair and orderly administration of the pension laws." Id., at 281. Ms. Green is in the same circumstances, in terms of asserting a right for a benefit, that the widow was in 1977. Ms. Green, following the Court's reasoning, has standing now to pursue her G. L. c. 32, §16(4) appeal.

I conclude that Ms. Green was not provided with adequate notice by the State Board of Retirement at the time of her retirement to have required her to file an appeal at that time if she was going to dispute her group classification. I conclude that as soon as she realized she had been wrongfully classified, she filed for reclassification without delay. For this reason, I find her current appeal to be timely filed pursuant to G. L. c. 32, § 16(4).

Merits

Ms. Green presented a credible and corroborated account of what she did in the job at and around the time of her retirement. Most of her time was spent in direct contact with mentally ill, mentally retarded, and emotionally challenged high school students at a special state run school for them. Her role was doing counseling, instructing, and social work with them. Her job encompassed ensuring their safety and wellbeing during her routine interactions with the 25-30 individual students in her caseload. Her role was not to only occasionally have significant interactions with the students. Rather, her job was to work one-on-one with the students assigned to her. They were in her care and custody at such times. What was an ancillary part of her job was the administrative and recordkeeping work. This assessment of what her work entailed was corroborated by her former co-workers, whose testimony I also found to be credible. This assessment is consistent with the information contained in the job description for Social Worker/Case Manager at Massachusetts Hospital School. (See Gaw v. Contributory Retirement Appeal Board, 4 Mass.App.Ct. 250 (1976), on the importance of having the member's account of their duties be in line with the essential aspects of their job description.) The State Board of Retirement's arguments that she was only occasionally and not primarily having direct contact with the students is not borne out by the findings I have made.

Ms. Green has met her burden of proof to show that as required by the provisions of G. L. c. 32, § 3(2)(g) for a Group 2 job classification, her "regular and major duties" had her routinely engaging in "the care, custody, instruction or other supervision of … persons who are mentally ill or mentally defective or defective delinquents or wayward children …." Group classification is determined by the job duties Ms. Green was performing at the time of her retirement, which her evidence addressed. Maddocks v. CRAB, 369 Mass. 488, 493-494 (1976).
Case law that existed at and around the time of Ms. Green's retirement supports finding her job to be properly classified in Group 2. See, Lyle v. State Board of Retirement, CR-1294 (DALA, 12/14/78) (No CRAB Decision) (Mental Health Assistant II given a Group 2 classification for work involving direct care of mentally ill patients); Gilbert Smith v. State Board of Retirement, CR-88-788 (DALA, 10/30/89) (CRAB, 1/22/90) (Mental Health Worker IV at Westborough State Hospital given a Group 2 classification for work involving direct care of acute psychiatric patients); Lamphier v. State Board of Retirement, CR-95-69 (DALA, 2/25/97) (No CRAB Decision) (Registered Nurse III at Wrentham State School given a Group 2 job classification because she spent between 75-80% of her working time doing clinical care nursing to severely to profoundly mentally retarded clients including to clients with secondary psychiatric diagnoses); Grieve v. State Board of Retirement, CR-98-177 (DALA, 6/24/99) (No CRAB Decision) (Registered Nurse IV at the Wrentham State School working with the same kind of clients as in Lamphier, supra, received a Group 2 classification for working with clients who were mentally retarded since that term is encompassed within the meaning of "mentally defective" used in G. L. c. 32, § 3(2)(g) when describing Group 2.)

More recent case law continues to find jobs like the one Ms. Green performed to be properly classified in Group 2, where involved is direct care, custody, instruction, or other supervision rendered to mentally retarded and mentally ill clients. See, Harris v. CRAB, Superior Court Civil Action No. 01-3036-6 (7/3/02) (Pharmacist job provided care and instruction through counseling to mentally ill clients about their medications); Zilembo v. State Board of Retirement, CR-02-907 (DALA, 10/7/05) (No CRAB Decision) (Case Manager II rendered direct care and counseling to mentally ill clients); Parmenter v. State Board of Retirement, CR-04-341 (DALA, 8/1/05) (No CRAB Decision) (Human Services Coordinator A/B II rendered direct care and counseling to mentally ill clients); Viveiros v. State Board of Retirement, CR-99-684 (DALA 8/28/00) (No CRAB Decision). (Compliance Officer III/Human Rights Officer at the Taunton State Hospital met alone with mentally ill clients to help them with a range of issues such as helping to secure an attorney, getting appropriate clothing, and transportation to medical appointments)
I conclude there is support for requiring that the State Board of Retirement change Ms. Green's job classification to Group 2, as the correction of an error on its part. G. L. c. 32, §20(5)(c)(1) and (2) calls upon a retirement board to correct an error once it is discovered, as far as is practicable. This statutory provision does not contain a statute of limitations to prevent correcting errors practicable to correct. But, it is not practicable to expect a retirement board to have to revert back over ten years to make the correction. Rather, I conclude it is practicable to expect a correction of the Board's error by commencing the Group 2 retirement as of the date of Ms. Green's request for reconsideration of her classification of October 19, 2006. (See, Pierce v. State Board of Retirement, CR-92-245 (DALA, 7/15/93) (CRAB, 10/28/93), where a job classification change was made to correct an error, but the change was made retroactive to the date of the discovery of the error and not back to the effective date of retirement.)
For these reasons, the decision of the State Board of Retirement is rescinded, and the case is remanded to the Board to recalculate Ms. Green's retirement allowance to be a Group 2 retirement allowance as of December 1, 2006.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Sarah H. Luick, Esq.
Administrative Magistrate


DATED: March 31, 2008


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