Pursuant to G.L. c. 32 s. 16(4), the Petitioner, Andira R. Ferraz, is appealing from the November 28, 2007 decision of the Respondent, Boston Retirement Board (BRB), denying her application for Section 7 accidental disability retirement benefits.
(Exhibits 17 and 19). The appeal was timely filed. (Exhibit 13). An expedited hearing was held on February 6, 2008 at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, Boston, MA.
At the hearing, twenty-six (26) exhibits were marked, including several multi-page medical records. The Petitioner testified and argued in her own behalf. The Respondent stated its argument for the record. Two (2) tapes were made of the proceedings.
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, Andira R. Ferraz, d.o.b. 06-08-1945, was raised in Sao Paulo, Brazil. Her father died when she was 4.5 years old and she went to live with her paternal aunt. Her sister went to live with their mother, who eventually remarried and had a lot more children. The new household of the Petitioner was strict and Protestant. She always lacked confidence and a sense of belonging. (Exhibits 17 and 23).
2. The Petitioner came to the United States in the mid-1960's. She was married and divorced twice, with no contact with the former husbands. She had a son out of wedlock in or about 1976 and raised him as a single mother. She used AFDC and student loans to pay for her education and attained both a Bachelor's degree and a Master's degree. She earned the Master's degree in Early Childhood/Bilingual Education from Boston University in 1981. (Id.).
3. The Petitioner felt like an outsider in the United States. She believed that people did not treat her well and that they talked down to her. She began to experience symptoms of anxiety and depression as early as 1964. (Exhibit 6).
4. The Petitioner first sought counseling for depression in or about 1981. She saw a Donna Miller at Massachusetts General Hospital. (Exhibit 23).
5. The Petitioner has a history of bronchial asthma and migraine headaches. (Exhibits 3, 6 and 23).
6. The Petitioner was employed by the Lynn Public Schools for the 1984-1985 school year. She was employed in the Lawrence Public Schools from September 3, 1985 to November 1, 1985. She was employed by the Salem Public Schools from November 2, 1985 through June 30, 1987. From 1986-1988 she was a "Consulting Teacher of Reading" at Salem State College. (Exhibit 17).
7. The Petitioner began working as a bilingual teacher for the Boston Public Schools on September 1, 1992. She was initially assigned to a high school in Hyde Park. (Id. and Exhibit 24).
8. The Petitioner began treating with a Dr. Claycomb at Union Hospital for panic symptoms in 1993. He prescribed Xanax. (Exhibit 6).
9. In 1994, the Petitioner's son attempted suicide by strangulation. She was extremely upset over this. Her son eventually recovered and began attending Wheaton College in the fall of 1994. (Exhibit 24).
10. On October 25, 1994, Chaim M. Rosenberg, M.D., a psychiatrist, reported that he received a telephone call that morning from the Petitioner stating that she needed to see him desperately. He had never met her and she had no appointment. The doctor agreed to see her for a few minutes as a courtesy. She remained in his office, despite his cues to terminate the meeting, for thirty (30) to forty-five (45) minutes. The Petitioner described herself to Dr. Rosenberg as a very nervous person. She told him that she had lost several jobs, including those in the Lynn and Salem Public Schools. She informed the doctor that she was thinking of transferring from the Boston Public Schools to Everett where she thought the job looked better but the benefits were not as good. She asked the doctor his advice, then rebutted his suggestions.
The Petitioner was on crutches that day and she stated it was a great burden that she had to travel into Boston each day.
The Petitioner informed Dr. Rosenberg that she was in analytical psychotherapy.
She indicated that she was taking Xanax ,1 mg. t.i.d., and that she had tried every medication except Paxil. She indicated that she had also been treated by a Dr. Blacker at the Massachusetts General Hospital.
Dr. Rosenberg provided the Petitioner with a sample of 20 mg. of Paxil. She warned him that she would be a difficult patient and wondered whether he could take her on. (Id.).
11. On October 25, 1994, the Petitioner informed Dr. Rosenberg that she was regretting the decision to stay in the Boston Public Schools. The doctor reported that she was very ambivalent, reflecting continuously about her life, and felt that she was an outsider in the United States. She indicated again that she had lost several jobs and stated that she was afraid she would not be tenured in Boston, either. She reported that she believed, except for her son, that her life was empty, and that she wanted somebody to validate her life and give her gratitude for what she had done. She reported to Dr. Rosenberg that she felt like she was on the sidewalk of life and that no one cared much about her, including her son. (Id.).
12. On December 5, 1994, the Petitioner reported to Dr. Rosenberg that she was continuing to work at the high school in Hyde Park, but that she was not at all happy with her work. She described herself as a "pretty inventive teacher" and indicated that this created envy amongst the other teachers who did not have a "sense of involvement with their kids". She also stated that she felt the problems that she encountered in the Lynn Schools were beginning to follow her in Hyde Park and that she might lose her job there.
The Petitioner also noted that she wanted to be in therapy but she wasn't satisfied with her current therapist. The Petitioner stayed on the same dose of Xanax. (Id.).
13. On January 30, 1995, Dr. Rosenberg reported that the Petitioner was "markedly depressed". The Petitioner informed the doctor that she was suffering from "emotional burnout resulting from the bad work conditions" that she faced in the Boston School System. She reported that she taught Latin kids who did not want to learn. She asked the doctor to "distort a letter in order to show that she is ill". The doctor informed the patient that he would write a note and say that she wanted a vacation, but that this was a personal decision rather than sick leave. Dr. Rosenberg also reported that the Petitioner had her recurrent theme of "no one understands her, no one appreciates her and no one gives her the time of day". (Id.).
14. On January 30, 1995, Dr. Rosenberg wrote "To Whom It May Concern" in the Boston Public Schools that the Petitioner's foster mother in Brazil was ill and that she wanted to visit her in February. The doctor also recommended that two additional weeks of vacation be granted "since she has been under a great deal of stress and worry in recent months". (Id.).
15. On March 30, 1995, Dr. Rosenberg reported that the Petitioner was seeing many different doctors from many different specialties and that she was always looking for reasons to explain her multiplicity of symptoms. The doctor also stated, "her life is quite sad. She works with (sic) a teacher for the Boston School System but is afraid she may lose her job. Her son attends college in Norton, MA. She is afraid that he is too depressed, very much like herself. He avoids meeting her and doesn't want to come home even on weekends or when he has vacations." (Id.).
16. On June 1, 1995, Dr. Rosenberg reported:
She has been all but fired from her job as a teacher of Spanish at a Boston School. She feels that the headmaster was unprofessional. She asked him what other jobs she could do. I tried to help her to make some recommendations but she seemed unhappy with any of my suggestions. She will be going on unemployment benefits as of July of this year unless she is able to find anther job. She has put out her c.v. She is well paid as a teacher. She says she is entitled to get herself some good things such as a "diamond ring", but may not be able to afford this if she is unemployed and is only on unemployment benefits. (Id.).
17. On August 22, 1995, Dr. Rosenberg reported that the Petitioner was very angry at him for not being willing to prescribe medications over the phone. He stated further:
In the meantime she is back in therapy. She is not sure whether she has a job. She has not had her contact with the Boston School Department renewed but hopes to get a letter soon. If she does not get a letter saying that she has been rehired she will file for discrimination and wants me to help her.
She certainly has mean things to say about most everything in the world. She came with her son who is a very timid self-conscious young man. He has a bad stammer. She describes him with some pride saying that this is her achievement. However, the boy is quite troubled to be in the presence of his mother. (Id.).
18. At some point, the Petitioner was assigned to the Donald McKay Elementary School in East Boston as a third grade bilingual education teacher. (Exhibits 11, 16 and 17).
19. On October 11, 1995, the Petitioner asked Dr. Rosenberg to write a letter on her behalf stating that she was disabled and needed two extra weeks off from school so she could use her sick time. She wanted to travel to Brazil and visit older family members before they died. The doctor saw no reason to do this since the Petitioner had only been back to work for a few weeks.
The Petitioner called the doctor a "bastard" and accused him of stealing money from her. The doctor terminated the relationship. (Id.).
20. In 1998, Janie Ortega became principal at the Donald McKay Elementary School. The school had a reputation as being "one of the worst performing schools in Boston". Eighty-five (85) percent of the students were non-native speakers of English. The Petitioner and Ms. Ortega had a strained relationship from the get-go.
Ms. Ortega implemented many unpopular changes at the McKay School during her tenure. These included: the elimination of the teachers' lounge, lights turned off in the sign-in area, silence expected in the main office, closing of the library, parents only allowed in the school via the front door, and teachers, including the Petitioner, not being allowed to park in the handicapped parking spaces nearest the school building. (Testimony and Exhibit 5).
21. The Petitioner began to feel a general feeling of isolation. She also began to believe that she was going to be fired. (Id).
22. Early in the 1999-2000 school year, Ms. Ortega and the Petitioner disagreed over the amount of time that the English and Spanish languages were employed in the Petitioner's classroom. The Principal believed that all but one hour of the school day should be taught in English. She issued a memo to the Petitioner stating therein that the students would be required to take a standardized test in English.
The Petitioner believed that the children, who were non-native English speakers, could not comprehend that much English. This issue became a bone of contention between the teacher and the principal. (Testimony and Exhibit 12).
23. Also early in the 1999-2000 school year, the Petitioner had an issue with her paraprofessionals being taken out of her classroom to help the Principal or other teachers.
The Petitioner filed a union grievance alleging that the Principal was violating the Collective Bargaining Agreement. A new paraprofessional was assigned to her classroom on November 16, 1999. (Exhibit 12).
24. The Petitioner did not find Mr. Duval, the new paraprofessional, to be of much help in the classroom. His pager went off frequently and caused a distraction. He spoke no English. On February 3, 2000, Ms. Ortega sent a memo to the Petitioner wherein she stated that Mr. Duval had expressed concerns to her regarding the Petitioner's interaction with him. Ms. Ortega added that the Petitioner's relationships with people in the building had been an ongoing concern to her. She added:
Because I feel that we have a problem of great concern with implications for a healthy environment for the McKay, I am opening up your evaluation. Please meet with me and your union representative as soon as possible so that we can discuss concerns brought forward by Mr. Duval. (Exhibit 8 and Testimony).
25. In response to Ms. Ortega's memo to the Petitioner, Union Representatives Mr. Rivera and Mr. Vasquez wrote back to Ms. Ortega and stated that the issue with Mr. Duval and the Petitioner had already been resolved. They informed Ms. Ortega that they inferred from her memo that they did not have the right to resolve issues without her involvement. They described her involvement as "inflammatory and detrimental to a healthy McKay staff and collegiality". (Exhibit 8).
26. The Petitioner had grave concerns about her classroom in early 2000. Panes of glass on a cabinet were broken and not replaced. She was concerned for the safety of her pupils. There was no available space for classroom supplies. There were no hooks for children's coats. (Testimony and Exhibit 9).
27. The Petitioner and Carol Pacheco, the Union Elementary Field Representative, met with Ms. Ortega. After that meeting, a custodian was assigned to move furniture from the Petitioner's classroom and repair the broken glass. He sustained injuries during the course of moving the furniture. (Id.).
28. On March 20, 2000, Ms. Pacheco wrote to Ms. Ortega and summarized the earlier meeting. She stated that the Petitioner had requested that Mr. Duval not return to her classroom and that she realized another paraprofessional would not be assigned to her classroom. Ms. Pacheco reiterated the Petitioner's concerns about the physical condition of her room. Not all of the issues had been resolved by that point. Further, Ms. Pacheco challenged an assertion made by Ms. Ortega that the Petitioner had "agitated" the custodian and he was hurt as a result. Ms. Pacheco indicated that the Petitioner was only trying to create an atmosphere conducive to learning. Ms. Pacheco indicated that other teachers at the school had praised the Petitioner as an excellent teacher who had a wonderful rapport with her children. She concluded by saying that she hoped all of the issues between the Petitioner and the Principal could be resolved amicably. (Id.).
29. Ms. Ortega sat in the Petitioner's classroom and evaluated her performance on April 27, 2000. She noted that, while the Petitioner set up a safe classroom that reflected student work, the Petitioner did not plan her lesson effectively and did not show a command of the subject matter. She added that the Petitioner did not create a positive environment for student learning and that she was not a positive example of excellent attendance and punctuality. Ms. Ortega noted that there had been seventeen (17) absences for illness and one personal (1) day that school year. Ms. Ortega reported that the Petitioner's greatest difficulty was in communicating, collaborating and interacting with staff. She noted that time had to be spent refocusing the Petitioner who frequently got off track. Ms. Ortega concluded that the Petitioner was not receptive to suggestions for growth and improvement. Her overall rating of the Petitioner's performance was "satisfactory". (Exhibit 25).
30. The Petitioner saw Psychiatrist Ralph Talbot, M.D. for the first time on October 12, 2000. She reported that she had been depressed during the past month. She indicated that she only needed to teach for five (5) more years, then she could go home to Brazil.
Regarding Ms. Ortega, the Petitioner reported, "she lies, no integrity, and rude". She also reported that Ms. Ortega brought back memories from her past. The Petitioner wondered why she had to be humiliated, why everything had to be so difficult and why she was "denied everything".
Dr. Talbot kept the patient on the same dose of Xanax. He listed his initial diagnoses:
Major depression, severe, recurrent without psychotic symptoms
Panic disorder without agoraphobia
Personality Disorder, unspecified
s/p C section
Problems with primary support group
Problems related to social environment
Problems with access to health care services
31. The Petitioner saw Dr. Talbot again on October 25, 2000. At that time, she told him that she continued to have panic attacks, that her concentration was terrible and that her energy was very low. She stated that she was distressed that her principal "needs to get rid of her" and, that if she did not get a break from work, "something will burst". She asked the doctor to support a paid leave of absence in order for her to return to Brazil. (Id.).
32. On November 6, 2000, the Petitioner reported to Dr. Talbot that her energy was "very low". She was concerned that she might have a breakdown because of stress at work, but stated that work was her "whole life". She complained that the previous week she was unable to remember her students' names. She felt scared and that no one cared for her. She again reported being stressed that her principal "needs to get rid of her". (Id.).
33. Ms. Ortega sat in the Petitioner's classroom and evaluated her again on November 7, 2000. She reported that the Petitioner did not show a good understanding of the subject matter, did not plan instruction effectively, and did not identify prerequisite skills, concepts and vocabulary that students need to be successful. Ms. Ortega indicated that the Petitioner stated no objectives and that it was unclear what the direction of the lesson was to be. She stated that in the fifty (50) minute lesson, the Petitioner changed directions eight (8) times.
In summary, Ms. Ortega wrote:
The need for improvement is being hindered by Ms. Ferraz' unwillingness to recognize that there is a problem with her instructional program and with her participation as a collaborative member of the staff. Rather than looking
objectively at the direction in which the school is headed and the need for change in this direction, Ms. Ferraz, instead has decided that her unsatisfactory ratings are a result of the administration's being upset with her for having filed a grievance for overage of class size. As a result, professional growth has been difficult to accomplish. (Exhibit 25).
34. On November 20, 2000, Ms. Ortega wrote a document entitled "Description of the Problem and Prescription for Improvement". The issues that Ms. Ortega had with the Petitioner's teaching and the ways to improve her performance were described therein. (Id.).
35. Beginning in the 1999-2000 school year, the Petitioner was late for school at least two (2) days a week because she went to the post office before school in order to pick up books that were ordered by her students from a reading club. As reflected in the principal's evaluations, Ms. Ortega had problems with her being chronically late. (Id.).
36. On November 27, 2000, the Petitioner saw Dr. Talbot and told him that her school principal had monitored her class and given her an "unsatisfactory" evaluation.
She stated that if she received four (4) such evaluations, she feared that she would be fired from her job. The Petitioner told Dr. Talbot that she was concerned that she might have a breakdown from stress at work, her concentration was poor, and she felt like she was outside of herself watching everything.
The Petitioner told Dr. Talbot that her son, age 25, lived with her and paid half the rent, but he was "going downhill, too".
Dr. Talbot began a trial of the medication Celexa for the Petitioner's depression. (Exhibit 6).
37. On November 29, 2000, pulmonary specialist Jacob Karas, M.D., reported to the Boston School Department that the Petitioner had chronic asthmatic bronchitis which entitled her to handicapped status. He reported that it was imperative that she avoid any environment that was dusty, moldy or lacked ventilation. He stated that the physical conditions that she was working in adversely affected her health and he strongly recommended a transfer. (Exhibit 3).
38. On December 6. 2000, the Petitioner told Dr. Talbot that she was feeling a little better because of the possibility of getting a transfer at work, although the panic attacks and poor concentration continued. She stated that she was getting some help with the Union concerning her work issues and that her physician, Dr. Karas, had written a letter in support of a transfer from the McKay School. (Exhibit 6).
39. On February 1, 2001, the Petitioner informed Dr. Talbot that she was not getting support from the Union regarding her work issues. She told the doctor "I feel like hell". She said that some days she felt better, but the thought of losing her job was on her mind daily. She indicated that she was distressed because her sister had passed away a few months ago. (Id.).
40. Ms. Ortega evaluated the Petitioner on February 15, 2001. She reported that the teacher was not up to date and did not show a good understanding of the subject matter. She reported that this was a major concern of the administration. She wrote that when the Petitioner was not prepared to teach, she grabbed whatever was available.
Ms. Ortega also noted that the Petitioner had been absent 13.5 days in that school year already - 7.5 sick days, 3 personal days and 3 bereavement days. She also reported that the Petitioner did not try innovative classroom strategies or take advantage of in-house assistance. A list of the major problems and "Prescriptions For Improvement" was provided at the end of the evaluation. The overall finding was that the Petitioner did not meet the standards and expectations of the Boston Public Schools. (Exhibit 25).
41. On February 15, 2001, the Petitioner told Dr. Talbot that she continued to be in "an eternal state of fear". She also stated that one evening she felt fine when she thought she could not be terminated from work. The Petitioner stated that she was looking forward to her upcoming winter vacation, but that she "will be in hell" because she could not "get this off" of her mind. She told Dr. Talbot that she wanted to take time off from work using the "sick bank". She also wanted to take time off from work in May for surgical removal of genital cysts. Dr. Talbot noted that the Petitioner had resumed sessions with her one-time therapist, Donna Miller, at MGH. (Id.).
42. On March 1, 2001, Dr. Talbot reported to the Boston Public Schools Human Resources Department that the Petitioner was unable to work at that time due to depressive illness. He indicated that she was likely to require at least thirty (30) days of sick leave and outpatient counseling and pharmacology, after which she would be reevaluated. (Exhibit 6).
43. In their meeting on March 1, 2001, the Petitioner told Dr. Talbot she felt depressed, had poor concentration and found it difficult to learn something new. She said that she had nightmares about her work problems and that her lawyer told her that she could be fired at any time and for any reason. She also said that she was "afraid of getting sick" and wondered how she would survive and retire with her bad evaluations. (Id.).
44. On March 13, 2001, the Petitioner reported "feeling sad, because my job is gone". She said that she had nightmares about her work, including that her students' parents were angry with her because she had not been at work since March 2, 2001. She reported that her sleep was worse because she was preoccupied with losing her job. (Id.).
45. On March 26, 2001, the Petitioner told Dr. Talbot that her anxiety was "very high" because she had too much time to think. She reported that she was worn out and had some dizziness. She also reported poor concentration. The Petitioner was scheduled for removal of vaginal sebaceous cysts on March 29, 2001. (Id.).
46. The Petitioner saw Licensed Psychologist John Burke on March 29, 2001. He reported that she had been referred by Dr. Talbot and that it was his understanding that she was being harassed because of her age. Dr. Burke reported that the patient was "under a great deal of pressure at work, as a teacher, to get out of the system", and that she was totally confused as to why. Dr. Burke also noted that the Petitioner had immigrated from Russia (sic). Dr. Burke reported that the patient was depressed and that they would undergo cognitive behavioral therapy. (Exhibit 22).
47. On April 3, 2001, the Petitioner told Dr. Talbot that she was "frightened about" her "unemployment" and her son being able to keep up the apartment in Lynn. She stated that she was completely worn out and had dizziness. She wanted to visit her family in Brazil for support. (Exhibit 6).
48. On April 5, 2001, Dr. Talbot wrote to the Boston Public Schools and requested thirty (30) more days of sick leave for the Petitioner. (Id.).
49. On April 12, 2001, Dr. Talbot reported that the patient was able to resume full time work. (Id.).
50. On April 18, 2001, Dr. Talbot indicated that the Petitioner requested that certain information in her medical record be changed. Dr. Talbot wrote an addendum in which he indicated a difference in the Xanax dosage. He also reported:
"Personality Disorder, unspecified'
Explained that this is a provisional diagnosis. There is some indication that patient is rigid and "not open to change". She admits that she is often "rigid". For
example, she is reluctant to try new medications, but she will do this when she visits Brazil in July 2001. Patient feels more comfortable in Brazil, she says. (Id.).
51. On April 18, 2001, the Petitioner told Dr. Talbot that she felt very tired. She did not feel that she should return to work, because she was "abused by that woman (principal)". (Id.).
52. On May 2, 2001, the Petitioner reported to Dr. Talbot that the best medicine for her depression was to be working because she focused on her work, which was a break from her obsessive thoughts. She had returned to work on April 23, 2001. She stated that she was preoccupied constantly about her fear that she would be fired from her teaching job. (Id.).
53. On May 16, 2001, the Petitioner told Dr. Talbot that work was the best medicine for her depression but "they don't let me work in peace". She was concerned that the school principal had given her an improvement plan and that she needed to meet with a specialist concerning "guided reading". (Id.).
54. On June 6, 2001, Dr. Talbot noted that the Petitioner had requested an evaluation for Workers' Compensation. (Id.).
55. On June 21, 2001, the Petitioner told Dr. Talbot that concentration was hard but that she was able to do her paperwork. She was concerned that Ms. Ortega had walked into her class the past week. (Id.).
56. On July 17, 2001, the Petitioner lost her union grievance against Ms. Ortega. The negative evaluations would remain in her personnel file. (Id.).
57. On July 18, 2001, the Petitioner urged Dr. Talbot to see her. She had attended a meeting between her union and Ms. Ortega the previous day. Dr. Talbot reported:
Looks sad and worried…Patient alleges that Dr. Ortega "lied" about her performance as a teacher. Concentration is impaired. Constantly worried and feels "despair" that she will be fired from her job by Dr. Ortega. Preoccupied about going to Brazil to be with her family.
Patient says she wants: (1) to keep her job and not be fired (2) to be transferred to another school. Patient may be able to claim disability, because of her chronic depression and sensitivity to stress and interpersonal criticism. Patient also has an obsessive and disabling preoccupation with Dr. Ortega, which may be pathological and suggests possible obsessive compulsive disorder. (Id.).
58. On August 22, 2001, the Petitioner told Dr. Talbot that she had a lot of anxiety about having no food and being homeless. She informed him that there were many family stresses in Brazil and that financial problems there were severe. She said that she had been disgraced by her family because of past behavior and that now she will be "fired from her job". (Id.).
59. In an August 23, 2001 letter to the Petitioner's attorney, David Scott, Esquire, Dr. Talbot summarized his treatment of the Petitioner, listed his diagnoses and stated that he believed she would be best served by a transfer to another school. (Id.).
60. On September 24, 2001, Dr. Talbot notified the Boston Public Schools that the Petitioner's medical condition had worsened and stated that she should not return to teaching at the beginning of the new school year. (Id.).
61. The Petitioner returned to work in mid-September 2001. Dr. Talbot reported on several occasions that she continued to be preoccupied by her problems with Ms. Ortega. (Id.).
62. On October 3, 2001, Dr. Talbot reported that the Petitioner appeared exhausted. She informed him that she felt that she was "getting down physically and would soon drop". She was distressed that Ms. Ortega had observed her class three (3) times recently and that she constantly feared she would be fired by her. She described this as "torture" and said that she could not go out to eat because she had to save money for rent. She also complained of some recent uterine bleeding and stated she would consult her gynecologist. (Id.).
63. Ms. Ortega evaluated the Petitioner again on October 2, 2001. In her written evaluation of October 17, 2001, she concluded that the Petitioner did not meet the teaching standards of the Boston Public Schools. Ms. Ortega reported that the Petitioner was not up to date regarding curriculum content at the Donald McKay or the Boston Public Schools and she did not demonstrate an understanding of child development.
The principal emphasized that it was past time to implement guided reading as part of the literacy block and that the ranges of achievement and language levels in the classroom needed to be addressed. Ms. Ortega noted that one Prescription For Improvement for the Petitioner was that she needed to plan consistent and meaningful lessons. Ms. Ortega also noted that the Petitioner had difficulty working with other teachers. She stated that everything that had been offered or done to help the Petitioner had been met with resistance. (Exhibit 25).
64. On October 18, 2001, the Petitioner told Dr. Talbot that she felt more concerned than sad and worried that she would become homeless if fired from her job. She was distressed that Ms. Ortega was "wearing her out". She also stated that her concentration was okay at school because "teaching is a performance". (Exhibit 6).
65. On November 1, 2001, the Petitioner informed Dr. Talbot that the Boston Public Schools had offered to transfer her to another school, but that there were no openings available. (Id.).
66. On November 14, 2001, the Petitioner informed Dr. Talbot that she was grieving the death of her aunt and a friend who had died the previous week. She was preoccupied about terrorist attacks. She was distressed that a teaching assistant who was assigned to her was acting inappropriately in class. She stated that she had been having conversations with a lonely friend who had a negative outlook on things and that she should stop phoning the woman. (Id.).
67. On November 19, 2001, the Petitioner received another unsatisfactory evaluation from Jane Ortega. Ms. Ortega reported:
…Ms. Ferraz has been given a Prescription For Improvement but he has failed to follow it. Most importantly, Ms. Ferraz has ailed to change her professional behavior. Ms. Ferraz has failed o grow professionally, even though she has been given the same pportunity for learning as has been given to every member of he staff. Ms. Ferraz continues to avoid assistance from members f the staff who are able to provide on-site professional development.
Ms. Ferraz has avoided directives from the administration to report to work on time. She continues to arrive late, causing others to care or her students until her arrival. Ms. Ferraz has been told that this behavior could result in other administrative action.
Ms. Ferraz fails to comply with policy, procedure and directives. Ultimately, her failure to change has an impact on the climate of her classroom and on the instructional program that is being denied to her students.
…Ms. Ferraz does not show a willingness to consider new ideas. She has rejected new initiatives. Ms. Ferraz does not stay up to date on curriculum content. Ms. Ferraz has cancelled all but one meeting with the literacy specialist. . ..her classes, through university, have not helped to refine professional skills. Ms. Ferraz is not receptive to criticism and suggestions for growth and improvement. (Exhibit 25).
68. On December 13, 2001, the Petitioner informed Dr. Talbot that she was at a "plateau" in terms of her stress levels at work. She was distressed that her teaching assistant, a "minister", was so disorganized. She was grateful that she had a job and was aware that many people were unemployed. She was distressed that she was recovering from the flu and that she needed to seek treatment for loss of bone density.
At that point, she stated that she was "accepting treatment from Christian Science". (Exhibit 6).
69. On January 9, 2002, the Petitioner told Dr. Talbot that she was distressed that her Christmas day was terrible and that she wished she had family and friends to be with. She was preoccupied with "society being unjust". She was concerned that her son's life had stagnated and she wondered if he was depressed. (Id.).
70. On February 7, 2002, the Petitioner told Dr. Talbot that she was preoccupied about her problems at work. She was distressed that she had received another evaluation from Ms. Ortega, but stated that she had not been able to read it. (Id.).
71. The last evaluations in 2001 were not signed by the Petitioner. She also refused to meet with Ms. Ortega without union representation. (Exhibit 25).
72. On March 4, 2002, the Petitioner told Dr. Talbot that she was taking hormone replacement therapy and that she believed it may be causing depression. She also stated that she had not been to school that day because she was grieving the loss of her cousin who had just died. Dr. Talbot wrote a note referencing "some vague past memories of sexual abuse". (Exhibit 6).
73. On March 28, 2002, the Petitioner told Dr. Talbot that she was still grieving the loss of her cousin. She was distressed that some of her speech was backward and that she was not seeing as many details at work. She indicated that she had received an "intention of termination" letter form Ms. Ortega. She had ten (10) days to meet with the principal and thirty (30) days to appeal the termination. She did not feel that she could work through June 2002, but believed that she would be asked to do so. (Id.).
74. In early April 2002, the Petitioner informed Dr. Talbot that her lawyer had advised her to apply for accidental disability retirement. She stated that the disability claim had to take place before the termination, while she was still in good standing. (Id.).
75. On April 25, 2002, Jane Ortega issued a termination letter to the Petitioner. She stated that, since the Petitioner had not availed herself of meeting to review the intent to terminate, the termination was effective immediately and that the Petitioner had the right to seek review of the decision by an arbitrator within thirty (30) days. (Exhibit 12).
76. On April 29, 2002, the Petitioner told Dr. Talbot that she was distressed that she was served the letter of termination and that she felt "numb and in a vacuum". She was also distressed by recent flu symptoms. (Exhibit 6).
77. In a letter to the Boston Retirement Board dated May 2, 2002, Dr. Talbot stated that the Petitioner had a long history of Major Depression and Panic Disorder since 1984. He noted that over the course of his own treatment of her, she had made little improvement and her condition had deteriorated.
The doctor reported, "although her illness is chronic and treatment resistance (sic), it appears that her illness has worsened significantly associated with her conflicts with her school principal Ms. Ortega". (Id.).
78. The Petitioner met with her attorneys over the next several months in an attempt to reach a settlement or conciliation with the Boston Public Schools. This was not accomplished. The Petitioner never pursued any arbitration through to a conclusion. (Id. and Testimony).
79. The Petitioner continued to see Dr. Talbot following her termination from her teaching position and she still sees him at the present time. (Id.).
80. On August 2, 2002, the Petitioner applied for Workers' Compensation Benefits on the bases of having been "harassed by supervisor since Sept. 2000 and bronchitis aggravated by condition of workplace". The claim was eventually denied. (Exhibit 20).
81. On October 7, 2002, the Petitioner reported to Dr. Talbot that she felt better some days than others. She found it hard to get up mornings because she had no reason to do so. She had some recent dreams about Ms. Ortega. She indicated that she had started a course at MGH on teaching dyslexic children, but her instructor was like "another Ortega" in her life, because she did not want a foreigner. (Exhibit 6).
82. During her visits to Dr. Talbot in early 2003, the Petitioner informed him that she was preoccupied with her court cases. She was upset that her Workers' Compensation claim was denied and upset that her attorney sent documents in late. She was concerned about a possible delay in a labor settlement. In March 2003, she reported that she was concerned that there was prejudice against her at her once-a-week volunteer job at Salem Hospital. (Id.).
83. The Petitioner was evaluated by Psychiatrist Michael Braverman, M.D., on June 11, 2003. He reported that she presented a confusing picture as to the circumstances of the termination from her job. The Petitioner told the doctor that she was doing her job satisfactorily and that the principal had issues with her performance.
Dr. Braverman concluded that the patient was suffering form major depression and that there appeared to be signs of histrionic personality functioning. He concluded:
It is difficult for me to state with reasonable medical certainty to what extent her psychiatric condition and psychiatric impairments are causally related to events at her job. She reports significant stress related to the principal of her school. (Exhibit 21).
84. The Petitioner was evaluated by Psychiatrist Robert Weiner, M.D. on April 4, 2005. The Petitioner told Dr. Weiner that the principal, who came to the Donald McKay School in September 1998, made problems for her. She indicated that the Principal was there to "fire people". She wondered whether a comment she had made about Ms. Ortega's Mexican background had alienated her. The Petitioner told Dr. Weiner that she did not understand the methodology of the principal. She questioned how you could teach students English in English if you were not allowed to teach English as a second language.
Dr. Weiner concluded:
In my medical opinion, Andira Ferraz is experiencing an emotional reaction, marked by anxiety, depression and anger. This is an emotional reaction to her current life situation. Ms. Ferraz has a lengthy history of emotional insecurity, with anxiety and depression. The personnel actions at school, leading to termination, have caused reality problems and emotional distress for Ms. Ferraz. She has continued to take Xanax and see Dr. Talbot once a month. She is also concerned about her son's depression. Ms. Ferraz gives little indication that she intends a resumption of employment. (Exhibit 23).
85. In his October 28, 2005 Statement of Applicant's Physician that accompanied the Petitioner's application for accidental disability retirement, Dr. Talbot reported that when he first saw the Petitioner in October 2000, she had signs of clinical depression. She complained of having problems with her school principal, but she had been functioning adequately as a teacher and coping with the day-to-day stresses of her job. He noted that over the course of her treatment, the Petitioner was preoccupied about her relationship with Ms. Ortega and felt threatened and harassed by her. Dr. Talbot indicated that the Petitioner's condition worsened significantly in the months prior to and after her firing. He noted that since the termination, the Petitioner's condition had worsened. Dr. Talbot concluded:
Ms. Ferraz has been unable to work in full time employment, and her lack of improvement and persistent depression have been closely associated with problems with Ms. Ortega, her school principal, and her resulting preoccupation with this.
In my opinion, Ms. Ferraz's depression alone would not account for her current significant disability. Ms. Ferraz's functional capacity is very impaired and I believe that she will never recover from her current disability which is permanent. (Exhibit 15).
86. The Petitioner applied for accidental disability retirement benefits on November 10, 2005. She listed depression, anxiety/panic attacks, asthma and migraines as the medical reasons for her application. She stated that she did not perform as well as in previous years after she started being harassed by negative evaluations by Ms. Ortega. (Exhibit 17).
87. Regional Medical Panel Doctors George Dominiak, Mark Friedman and Susannah Sherry evaluated the Petitioner on March 10, 2006. They answered the Certificate "yes, yes, no". In the narrative report, the Panel Chairman, Dr. Dominiak, reported that the Petitioner described a long-standing and persistent anxiety. She also reported years of depression. She informed the Panel that her symptoms were gravely exacerbated by alleged unfair treatment at her work and in particular by unfair harassment by Ms. Ortega. She felt that she was unjustly terminated and that she had done nothing wrong.
The Panel summarized the Petitioner's medical treatment and commented on reports by Dr. Talbot, Dr. Rosenberg and the Petitioner's medical diagnoses of asthma and migraines. Dr. Dominiak reported the Panels' diagnoses:
…shows symptoms of untreated Major Depression and Panic Disorder. Because of the history of conflicted interpersonal relationships, sensitivity to criticism and difficulty and changing to shifts in environmental demand
she also shows traits of Personality Disorder with Histrionic, Borderline and Passive-aggressive features.
The Panel's Conclusions were:
A. Disability: It is the unanimous opinion of our Panel that on the basis of Major Depression and Panic Disorder, Ms. Ferraz is mentally incapable of performing the essential duties of her job as described in the current job description. She has poor concentration, poor motivation and interest, and is not in control of her emotions. This would render classroom teaching impossible.
B. Permanency: Because of the duration of symptoms and persistent relative severity in recent years it is likely that Ms. Ferraz's incapacity will continue for an indefinite period of time.
C. Causality: …her incapacity is not such as might be the natural and proximate result of the personal injury sustained or hazard undergone on account of which retirement is claimed. Her depression and anxiety have been present and occasionally severe for decades and are not clearly related to work experiences causally. Records show conflicted relationships in areas of her life other than work. Also there is no evidence documenting harassment or unfair behavior on the part of her supervisors. (Exhibit 14).
88. On November 28, 2007, the Respondent denied the Petitioner's Section 7 application. (Exhibit 4).
89. The Petitioner filed a timely appeal. (Exhibit 13).
In order to receive accidental disability retirement benefits under G.L. c. 32 s. 7, an applicant must establish by a preponderance of the evidence, including an affirmative Medical Panel Certificate, that she is totally and permanently incapacitated from performing all of her duties as a result of an injury sustained or hazard undergone while in the performance of her duties. The Medical Panel's function is to "determine medical questions which are beyond the common knowledge and experience of the local board (or Appeal Board)". Malden Retirement Board v. CRAB, 298 N.E. 2d 902, 1 Mass. App. 420 (1973). Unless the Panel employs an erroneous standard or fails to follow proper procedures, or unless the Certificate is "plainly wrong", the local board may not ignore the Panel's medical findings. Kelley v. CRAB, 341 Mass. 611, 171 N.E. 2d 277 (1961).
The Petitioner is not entitled to prevail in this appeal. The BRB, DALA and CRAB cannot substitute their individual or collective judgments for that of the Panel when it has performed its function properly. In this case, the Petitioner has not met her
burden of proving either that: the Panel majority failed to perform its function properly in its evaluation of the etiology of her disability; or, that she sustained a compensable "personal injury" within the meaning of Section 7(1).
The Regional Medical Panel which evaluated the Petitioner reviewed all of the available medical documentation and conducted a thorough clinical evaluation. The doctors rendered a lucid, well reasoned Certificate and narrative report based upon notes from Drs. Talbot and Rosenberg and on the Petitioner's own presentation. The Panel's assertion that the records demonstrated conflicted relationships in areas of her life other than work is a fair reading of the medical and non-medical evidence in this entire case. The evidence also demonstrates that the Petitioner frequently experienced great distress over and preoccupation with myriad problems concerning her physical health. There is no basis upon which to disregard or nullify the Panel's findings. See Malden Retirement Board v. CRAB, 1 Mass. App. 420 (1973).
It is a well-established principal in retirement law that G. L.c. 32 s. 7(1) shares with the Workers' Compensation statute the definition of a "personal injury" which excludes any "mental or emotional disability arising principally out of a bona fide personnel action…except such action which is the intentional infliction of emotional distress". (Emphasis added). See Zavaglia v. CRAB, 345 Mass. 483 (1963) and Sugrue v.CRAB, 45 Mass. App. Ct. 1 (1998) for this proposition. The Sugrue Court was aware of the legislative change in 1986 wherein the Chapter 152 s. 1(7A) definition of "personal injury" was amended to include the words "within the meaning of this chapter" when said Court stated "[w]e observe, however, that it has been long recognized both well before and after 1986 that the language of Chapter 32 s. 7(1) should be interpreted in harmony with Chapter 152". Sugrue, supra at page 4. CRAB has followed this line of reasoning in some recent cases, as well.
The Petitioner has averred that she was the victim of a campaign of harassment over a three and one half (3.5) year period prior to her termination. She has contended that the unfair, pervasive, and repetitive campaign of harassment was intended to end her employment at the Donald McKay School. She has proven none of the above.
She has failed to explain why, if Ms. Ortega's intent all along was to fire her, she waited until April 2002. The Petitioner was given many opportunities to change her teaching methods and come into compliance with the teaching goals and methods instituted by Ms. Ortega. Instead, she overreacted to the criticism and resisted attempts to change the style and content of her classroom presentations. Yet, all the while, she became more and more preoccupied with being fired and what she would do with her life after she was fired. She has not demonstrated that the final years of her career included ill intentions toward her, or any retaliation for her seeking union protection when she filed grievances.
There is no evidence that there was any intentional infliction of emotional distress from Ms. Ortega at any time. It should also be noted here that the Petitioner had lost three (3) other teaching jobs prior to her employment at the McKay School and that she had found the headmaster at the Hyde Park High School to be "unprofessional", an attribute she also ascribed to Ms. Ortega during her testimony.
The Petitioner has attempted to support her assertions with only non-specific testimonial evidence that is more reflective of her own difficulties with self esteem and relationships and her skewed perceptions of events going on around her than any objective indication of a campaign to harass her or force her out of her position.
The non-specific testimonial evidence concerning harassment is not supported by the record.
Questions concerning the Petitioner's reliability and credibility were raised during the course of the hearing due to her tendency to overly emote and exaggerate on many issues, both pertinent and non-pertinent to her case, and her tendency to wander off subject, something that was also noted by Ms. Ortega during classroom observations.
Her testimony cannot be accepted at face value. Neither can the opinion of Dr. Talbot, who received his information regarding Ms. Ortega's alleged intentional harassment of the Petitioner from the Petitioner herself.
Finally, the Petitioner's conflicts with Jane Ortega concerning her attendance, attempts to moderate and alter her classroom teaching, student discipline, professional evaluations, and classroom assignments are not "identifiable conditions not common and necessary to all or a great many occupations". Blanchette v. CRAB, 20 Mass. App. Ct. 479 (1985). The Petitioner's dealings with staff and administration are not personal injuries within the meaning of Section 7(1). Sugrue, supra.
Accordingly, the decision of the Boston Retirement Board denying Andira Ferrraz' Section 7 application is hereby affirmed.
Division of Administrative Law Appeals,
DATED: March 31, 2008