COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Laura Ramshead,

Petitioner

v. Docket No. CR-09-310
DATED: December 4, 2009


New Bedford Retirement Board,

Respondent

Appearance for Petitioner:

James H. Quirk, Jr., Esq.

P.O. Box 268
Yarmouthport, MA 02675-0268

Appearance for Respondent:

Eric Jaikes, Esq.

City of New Bedford - Law Department
133 William Street
New Bedford, MA 02740

Administrative Magistrate:

Sarah H. Luick, Esq.

SUMMARY OF DECISION

Petitioner is not entitled to have her application for accidental disability under the Heart Law Presumption (G.L. c. 32, § 94) processed by the Respondent Board on behalf of her deceased husband because once her husband had retired he made this same request that the Respondent Board denied and he never sought to appeal that denial decision despite being informed of his rights to appeal.

DECISION

Pursuant to G.L. c. 32, § 16(4), the Petitioner, Laura Ramshead, is appealing the May 10, 2009 decision of the Respondent, New Bedford Retirement Board, denying her request to process an application for accidental disability under the Heart Law Presumption on behalf of her deceased husband. (Ex. 2.) The appeal was timely filed. (Ex. 1.) A hearing was held October 8, 2009 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, § 4H.

Various documents are in evidence. (Exs. 1 - 13.) One tape was used. The Petitioner's daughter, Heather Tavares, testified. Both parties filed pre-hearing memoranda (Exs. A & B.), and made arguments on the record.


FINDINGS OF FACT

1. Carlton Ramshead, d.o.b. 10/10/36, had a career from 1960 as a New Bedford Police Officer. He rose to the rank of Captain. (Exs. 5, 10 & 13.)

2. Capt. Ramshead suffered from back pain episodes during his whole career. On June 15, 1988, he was involved in a police cruiser accident. This accident exacerbated his pre-existing back condition. He never returned to work following this accident. He received G.L. c. 41, § 111F benefits for the time he was out from work. He underwent spinal fusion surgery. (Exs. 4, 5 & 13.)

3. Capt. Ramshead filed for accidental disability retirement benefits in and around December 1988 in connection with this cruiser injury, and was awarded accidental disability retirement effective May 1, 1989. (Exs. 5 & 13.)

4. Capt. Ramshead suffered from diabetes from about 1979. He began to have high blood pressure readings such as 150/110 taken in 1983. He came under the care of an internist with a specialty in cardiology, Dr. Alexander Altschuller, who by 1987 prescribed medication to control his hypertension. In the early 1990's Capt. Ramshead began to suffer from bouts of shortness of breath. He was hospitalized in 1991 for tests that included a nuclear stress test that showed ischemia. He then had cardiac catheterization revealing severe three vessel coronary artery disease with significant left ventricular systolic dysfunction. He had a 78% left main coronary lesion, a 95% left circumflexed lesion, an 80% diagonal lesion, a 50% LAD lesion, and a 100% occluded right CAD with ejection fraction of 35%. He underwent quadruple heart by-pass surgery in 1992. (Exs. 7, 8, 10, 11 & 12. Testimony.)

5. On July 28, 1993, Dr. Altschuller produced a report on Capt. Ramshead's hypertension, coronary heart disease and related conditions. (Exs. 5 & 8.) He explained that Capt. Ramshead,has been under my active care and treatment since 1987 and carries the following diagnoses: coronary artery disease, hypertension, diabetes and he has undergone coronary bypass surgery … has been treated for hypertension since 1987 and is still being treated … for the … stated diagnoses. (Ex. 8.)

6. By letter of August 4, 1993, Capt. Ramshead petitioned the New Bedford Retirement Board "to apply for or have my accidental disability retirement converted to, accidental disability due to hypertension." Capt. Ramshead explained that he had retired under accidental disability for a back condition effective May 1, 1989, but had been treating for hypertension from 1987 and was able to provide documentation "to verify that fact." At the time he made this request he was experiencing shortness of breath and a limited ability to engage in activities due to his hypertension and heart condition. (Exs. 5 & 7. Testimony.)

7. At its August 30, 1993 meeting, the New Bedford Retirement
Board reviewed Capt. Ramshead's "request to apply for accidental disability/or have your current accidental disability retirement converted to disability due to your hypertension and coronary condition." The Board also reviewed Dr. Altschuller's July 28, 1993 report. The Board noted Dr. Altschuller had been treating him for hypertension since 1987. The Board voted to deny his request. The Board explained he could not have this request considered because he is not making it as a member in service, the status the Board found was necessary to seek what he wanted. The Board provided Capt. Ramshead with notice of his right to appeal within the next fifteen days to the Contributory Retirement Appeal Board (CRAB) including the address to mail the appeal to. In addition, the Board offered to assist him "in filing …your appeal." (Ex. 9.)

8. Capt. Ramshead did not file an appeal, and did not make this request again. (Ex. 5. Stipulation.)

9. Capt. Ramshead passed away on December 12, 2004 of heart disease. (Exs. 4 & 5.)

10. Laura Ramshead was married to and living with Capt. Ramshead at the time of his accidental disability retirement and at the time of his death. (Exs. 4 & 5. Testimony.)

11. Laura Ramshead sought accidental death benefits in 2005, and her request was denied by the New Bedford Retirement Board by letter of August 26, 2005. Mrs. Ramshead filed a timely appeal of the denial to CRAB, and had a hearing on December 8, 2005. The efforts taken by Capt. Ramshead in 1993 to assert his hypertension as a total and permanently disabling condition at the time
he stopped working, and to secure that condition as a basis for accidental
disability benefits, was evidence presented at the hearing, including the evidence that he never appealed the denial of this request. The basis for the accidental disability retirement from 1989 of a back condition, and the cause of death due to a cardiac condition were also made part of the record at the hearing. (Ex.
5; Findings of Fact in CR-05-854.)

12. Mrs. Ramshead's appeal resulted in a decision of January 5, 2006 denying accidental death benefits on January 5, 2006. The DALA Magistrate reasoned that Capt. Ramshead had not died as a result of the same condition for which he received accidental disability retirement, citing the language in G.L. c. 32, § 9(1) that sets forth this standard. (Ex. 5.)

13. At the DALA hearing on the accidental death benefits claim, the New Bedford Retirement Board had moved to dismiss the appeal based on the failure in 1993 of Capt. Ramshead to appeal the Board's denial of his request, but the DALA Magistrate denied this motion. She explained:
[T]he issue before me is whether the Petitioner is entitled to receive accidental death benefits under G.L. c. 32, §9(1). Mr. Ramshead's failure to appeal the Board's 1993 decision is not dispositive of that issue. (Ex. 5.)

14. The DALA decision was reviewed by CRAB, and CRAB affirmed the DALA decision on November 22, 2006, including adopting the Findings of Fact made and the reasoning of the DALA Magistrate. (Ex. 5.)

15. In April 2009, Mrs. Ramshead made a request to have an application for accidental disability retirement benefits pursuant to the Heart Law Presumption accepted for filing on behalf of her deceased husband, Capt. Ramshead, and then processed by the New Bedford Retirement Board. She completed an application and included a Physician's Statement in support of the application of Dr. Altschuller. In addition, she presented legal arguments in support of her request, including citing to the case of State Board of Retirement v. CRAB (Olsen case), 12 Mass. App. Ct. 306 (1981) to show that the status of being a retiree is not a bar to having an application for accidental disability benefits processed by the same retirement board, and asserting that she had evidence to prove Capt. Ramshead was totally and permanently disabled by hypertension and heart disease at the time he stopped working. (Exs. 3, 6, 10, 11 & 12. Testimony.)

16. The New Bedford Retirement Board denied Mrs. Ramshead's request, refusing to accept the application and process it. The Board wrote in its May 10, 2009 letter of decision:Mr. Ramshead was retired for accidental disability on 05/01/1989 for a back injury. Mr. Ramshead died on December 12, 2004. Board denial is based on Mr. Ramshead's death in 2004, and his lack of application during the time he was a member of the New Bedford Retirement System for heart related issues.(Ex. 2.)

17. Mrs. Ramshead timely appealed this denial decision. (Ex. 1.)

18. Mrs. Ramshead is receiving G.L. c. 32, § 101 benefits. (Ex. 10.)


Conclusion

Respondent's Motion to Dismiss on grounds of Res Judicata

The Motion to Dismiss is denied. See, Ex. B. Mrs. Ramshead as the widow of Capt. Ramshead, having been married to him and living with him at the time of his retirement and death, has potential G.L. Chapter 32 benefits, and has standing to pursue this appeal.

Mrs. Ramshead's request is not barred by the doctrine of res judicata based on the decision regarding the denial to her of accidental death benefits. As the DALA Magistrate explained with reasoning that was subsequently adopted by CRAB, what Capt. Ramshead tried to do in 1993 was not the matter being decided in CR-05-854.

Moreover, Capt. Ramshead need not be alive now in order to have an accidental disability claim in regard to the Heart Law Presumption processed if there is merit to permitting such a claim at this time. See, Rita Burke v. Boston Retirement Board, CR-95-951 (DALA, 1996) (CRAB, 1997) (Widow of member is able to file a posthumous application for accidental disability benefits on behalf of her late husband. She lost on the merits of the claim, and that DALA decision was upheld by CRAB); Henry v. Worcester Retirement Board, CR-91-815 (DALA, 1992) (No CRAB Decision). Mrs. Ramshead wants the ability to file for accidental death benefits based on her late husband's hypertension and heart condition, but she can only prevail in this claim if she is allowed to file a posthumous application for accidental disability based on the Heart Law Presumption on behalf of her late husband and then prevail on the merits. If that happened, there would be no additional benefits paid out to Capt. Ramshead's estate in connection with this second basis for accidental disability retirement, but there would be two bases for accidental disability retirement, a back condition and the heart condition. Then, Mrs. Ramshead would be able to file another request for accidental death benefits this time based on the heart condition and hypertension. She would not be precluded from filing this claim because she lost on the prior accidental death claim. The New Bedford Retirement Board would need to address the merits of that new claim. Mrs. Ramshead is seeking to do all this because right now she is only receiving the limited benefit in G.L. c. 32, § 101. (See, Ex. A.)

Merits

I conclude that Mrs. Ramshead's current request to have an application for accidental disability retirement under the Heart Law Presumption accepted and processed by the New Bedford Retirement Board on behalf of her deceased husband, has to be denied. This is because Capt. Ramshead failed to appeal the action taken by the New Bedford Retirement Board in 1993. This is the only reason why her application should not be accepted for filing and processing.
The reasoning of the New Bedford Retirement Board in 1993 to refuse to even consider Capt. Ramshead's request was erroneous. The Olsen case, supra, is clear that a retiree is able to seek accidental disability benefits; that there is no need to be a working member receiving regular compensation, a member in service, at the time of filing such an application. Under G.L. c. 32, § 7(1) criteria, the applicant only had to have been a member in service at the time of the claimed accident or hazard undergone.

Although the reason for the New Bedford Retirement Board's 1993 denial decision was erroneous, its decision reached the request Capt. Ramshead made at the time. He did more than just ask that his current accidental disability retirement be converted to one based on hypertension, he also asked in the alternative to be able to apply for this different accidental disability retirement. The Board's decision was clear that it was not permitting him to pursue either action. The Board did not mislead Capt. Ramshead and issue a decision that did not address his request.

It would have been fairer to Capt. Ramshead at the time for the Board to have looked into the law and to have properly counseled Capt. Ramshead about his rights as a retiree to file for another accidental disability retirement based on the Heart Law Presumption. Petitioner claims that a local board should be a source of help to a member, citing 840 CMR 10.02 and 10.04. See, Ex. A. This is a proper role for a local board, but a local board is not obligated to be a guarantor that a member will receive all benefits he is entitled to receive. In Benoit v. Bristol County Retirement Board, CR-04-291 (CRAB 2006), the local board's role was discussed as being a source of information about benefits for a member, but that it is not doing so in a fiduciary capacity as it does in regard to a local board's investments. CRAB explained that the local board is to do its "utmost to ensure that all members are informed of their rights and benefits under the system … [and] not to mislead" the members. However, CRAB made it clear that the local board has not "breached" any "general fiduciary duty" when it does "not inform a member of every potential benefit" the member has.

Providing Capt. Ramshead with proper information on the right to appeal to CRAB shows the Board met its obligation to Capt. Ramshead that if he was aggrieved by its decision, he had another forum in which to present his claim. See, G.L. c. 32, § 16(4). The evidence shows the Board even offered to help him accomplish an appeal. There is no evidence to explain why Capt. Ramshead did not file an appeal in 1993. No evidence excuses his failure to appeal. I do not find sufficient evidence to excuse his failure to appeal in 1993, the evidence that he suffered from limitations in his activity level and shortness of breath at this time due to his hypertension and heart condition. No evidence explains why those limitations prevented him from receiving notice of the appeal or from filing the appeal. Sadly, his widow cannot now assert on his behalf, the same request.

For these reasons, the request of Mrs. Ramshead to have the New Bedford Retirement Board accept and process an accidental disability retirement application under the Heart Law on behalf of her deceased husband, Capt. Ramshead, is denied.

SO ORDERED.

DIVISION OF ADMINISTRATIVE
LAW APPEALS


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Sarah H. Luick, Esq.
Administrative Magistrate

DATED: December 4, 2009