| Date: | 04/17/2026 |
|---|---|
| Organization: | Division of Administrative Law Appeals |
| Docket Number: | CR-24-0361 |
Police officer who slipped, fell, and injured himself in a police department parking lot before the start of his shift was not on duty, was not injured as a result of his duties, and is not eligible for accidental disability retirement benefits, despite the police chief’s testimony that police officers are on duty once they enter the parking lot, are on duty anywhere in the town, or both.
The petitioner, Stephen Drass, appeals the denial of his application for accidental disability retirement benefits.
I held a hearing on July 9, 2025 by Webex, which I recorded. Mr. Drass testified, and called as a witness Timothy Hanlon, the Whitman Chief of Police. The questions of the Plymouth County Retirement Board (PCRB) to the two witnesses were intended to bolster Mr. Drass’s case. (I discuss below PCRB’s support of the petitioner, even though PCRB is a respondent.)
I admitted 15 exhibits; 13 exhibits are clearly marked in the joint prehearing memorandum. Exhibit 14 is the Manual of Rules and Regulations of the Whitman Police Department. Exhibit 15 is the collective bargaining agreement between the Town of Whitman and the Whitman Police Union, covering July 1, 2022 through June 30, 2025.
The parties filed their briefs on August 27, 2025. PCRB’s brief supported Mr. Drass.
Findings of Fact
Stephen Drass
The Manual of Rules and Regulations of the Whitman Police Department reads in part:
13. Duty Status: Although officers of the force are assigned specific hours of regular duty, they shall be considered “on-duty” at all times for the preservation of the public peace and the protection of life and property when in the Town of Whitman and shall be prepared to take all reasonable police action to accomplish this purpose. All serious matters of public concern shall receive appropriate attention, even though an officer is not on duty at the time.
(Ex. 14, pp. 16-17)
16. Neglect of Duty: Being absent from assigned duty without leave; leaving post or assignment without being properly relieved; or failing to take suitable and appropriate police action when any crime, public disorder or other incident requires police attention or service.
(Ex. 16, p. 22)
Other information about Whitman Police Department procedures and the day of Mr. Drass’s injury
On December 18, 2023, the Public Employees Retirement Administration Commission (PERAC) remanded Mr. Drass’s application to PCRB for further proceedings, finding that PCRB’s approval of the application was not supported by substantial evidence. PERAC wrote that
(Ex. 7)
Hanlon’s testimony
Discussion
The governing case
In Victor Morales v. Lawrence Retirement Board and Public Employee Retirement Administration Commission, CR-13-79, 2021 WL 12297893 (Contrib. Retire. App. Bd. Nov. 18, 2021), Detective Morales drove to the Lawrence Police station and, while entering the station, slipped, fell, and injured himself. CRAB wrote:
G.L. c. 32, § 7 “requires not only that the injuries must result from one's duties but that they must also be sustained ‘while in the performance’ of those duties. The requirements are conjunctive.” [Murphy v. Contributory Retirement Appeal Bd., 463 Mass. 333 (2012).] The requirements of the accidental disability statute are strictly construed. [Id.] The causation requirement of this section require that the claimed injury must be sustained "during the actual performance of the duties that the employee has undertaken to perform on behalf of the public." [Id.]
…[C]ase law applying G.L. c. 32, § 7 clearly establishes that simply arriving at work is insufficient for accidental disability benefits.
…[C]ases have consistently found that in the context of police officers reporting to the station for duty, sustaining an injury on the way into the station is considered part of the officers travel into work and is insufficient to qualify for accidental disability benefits. For example, in Civetti v. Plymouth Ret. Bd, CR-16-411 (Feb. 22, 2019), a police officer was denied accidental disability retirement benefits when he slipped on ice in the parking lot prior to reporting for duty for the day, since “[a]n injury on the way into work does not make the employee eligible for accidental disability retirement.”…In another similar case, City of Medford v. Medford Ret. Bd., CR-05-1320 (CRAB Aug. 3, 2006), a police officer was denied accidental disability benefits when he was injured opening the door to the police station to report for duty, since he had not yet reported to duty for the day. These examples, where police officers were injured on the way into work were found ineligible for accidental disability benefits, apply the well-established rule that the location of the individual who is injured is not dispositive of whether the injury occurred during the “performance of work.” Rather, “benefits may permissibly be awarded only when a disabling injury is sustained during the performance of work duties and not merely as a result of being at work when injured.”
…An applicant for disability retirement benefits has the burden of proving both that this personal injury was sustained "while in the performance of his duties" and "as a result of his duties.” [Id.]
Id. (some citations omitted).
So too here. When Mr. Drass injured himself, he was not performing duties, and his injury was not a result of his duties. He was not traveling from one duty to another. He was arriving at work.
Mr. Drass tries to distinguish Civetti and at least another case by arguing that
there does not appear to be any record evidence about when officers were considered to be ‘on duty,’ or ‘performing a job duty’ other than their scheduled shift start time.
(Drass Br. 11) However, in the instant case the evidence is weak and unpersuasive that Mr. Drass was on duty and performing a job duty when he was injured, as I discuss below.
Mr. Drass’s attempt to distinguish the decisions that are clearly against him is unavailing. Mr. Drass’s other arguments, including relying on Rule 13, are unavailing, as discussed below.
Rule 13: Duty Status
The rule reads:
13. Duty Status: Although officers of the force are assigned specific hours of regular duty, they shall be considered “on-duty” at all times for the preservation of the public peace and the protection of life and property when in the Town of Whitman and shall be prepared to take all reasonable police action to accomplish this purpose. All serious matters of public concern shall receive appropriate attention, even though an officer is not on duty at the time.
(Ex. 14, pp. 16-17)
This rule should not be read too hastily. It does not say what Mr. Drass suggests it says, namely, that a police officer is always on duty. The rule recognizes that police officers are not always on duty; look at the last half-sentence: “even though an officer is not on duty at the time.” Now look at the first sentence: police officers “shall be considered ‘on-duty’ at all times.” The phrase is doubly hedged; police officers “shall be considered” on-duty, with “on-duty” in quotation marks. Both hedges indicate that police officers are not truly on duty at all times. The rule recognizes in two separate locations that police officers are not truly on duty at all times.
When shall a Whitman police officer be “considered ‘on-duty’” in the doubly-hedged sense? When “public peace” needs to be “preserv[ed],” and of “life and property” need to be “protect[ed].” And in those circumstances, what must a police officer do? “[T]ake all reasonable police action” and pay “appropriate attention” to “[a]ll serious matters of public concern.”
What public peace needed to be protected when Mr. Drass walked from his vehicle to the police station? None. What life and property needed to be protected? None. What reasonable police action did Mr. Drass need to take? None. What appropriate attention did he need to pay? None. In other words, Mr. Drass was neither on duty nor “considered ‘on-duty’” in the doubly-hedged sense.
Chief Hanlon confirmed this analysis when he testified, “If there’s no emergency going on…there’s no duties to perform if nothing’s happening” and “If nothing's going on… there's nothing to monitor necessarily.”
But, Mr. Drass seems to be arguing, life and property could have needed his protection. He might have needed to take reasonable action. However, the rule doesn’t cover hypotheticals. To reiterate, Mr. Drass was neither on duty nor, under Rule 13, “considered ‘on-duty’” in the doubly-hedged sense.
Chief Hanlon knows that Rule 13 cannot mean that police officers are always on duty, and testified to that, in effect. When asked if a Whitman police officer who lives in the town is always on duty, Chief Hanlon answered: Technically, no. Otherwise, the officer would never have a weekend off. And he testified that a police officer at the 7-Eleven for personal reasons can be off duty.
Rule 13 is a red herring. I continue to discuss Mr. Drass’s other arguments.
Rule 16: Neglect of duty
The rule reads:
16. Neglect of Duty: Being absent from assigned duty without leave; leaving post or assignment without being properly relieved; or failing to take suitable and appropriate police action when any crime, public disorder or other incident requires police attention or service.
(Ex. 16, p. 22)
Chief Hanlon testified that if an incident occurred in the police department parking lot before the start of an arriving officer’s shift and the officer did not respond, the department could discipline them for dereliction of duty.
No “crime, public disorder or other incident” happened in the parking lot for members of the public when Mr. Drass arrived for his shift. Nothing required him to take “suitable and appropriate police action.” He did not “fail[] to take suitable and appropriate police action.”
It’s unclear why Mr. Drass has raised this rule. To say that if an incident had happened, he would have been required to respond to it appropriately, even though his shift had not started? It is true that he would have been required. That is not in dispute, but it is also not relevant, because no incident happened.
Did Mr. Drass raise this rule to argue that he could have been disciplined if he had not scanned the parking lot for incidents? The rule does not cover that contingency. The rule covers an officer’s being absent without leave (not an issue here); leaving an assignment without being relieved (not an issue here); and failing to respond to a crime, public disorder, or other incident (not an issue here).
Rule 16 is another red herring.
When is a Whitman police officer on duty?
Chief Hanlon testified both that a Whitman police officer is on duty once they drive into the police parking lot and that a Whitman officer is on duty anywhere in Whitman.
When I asked Chief Hanlon when a Whitman police officer is on duty – when they are in Whitman, when they enter the police station parking lot, or when they get out of their personal vehicle in the parking lot (because it’s hard for me to imagine that a police officer still in their vehicle can perform any duties) – Chief Hanlon did not answer. Rather, he said: It’s a matter of availability.
When asked the difference between a police officer’s slipping and falling in the police department parking lot and the parking lot of a 7-Eleven in Whitman, Chief Hanlon answered: Proximity.
In response to one of my questions, Chief Hanlon said:
I think we're trying to split hairs to get…the answer you're looking for and I don't know that I can do that.
However, making distinctions and devising workable and meaningful definitions is what the law does.
When is a police officer on duty? The Whitman Police Department apparently doesn’t have an answer. It cannot be, as Mr. Drass’s post-hearing brief seems to argue, that a Whitman police officer is on duty whenever the police chief defines that they’re on duty.
Mr. Drass’s brief argues that I should defer to Chief Hanlon and just agree that Mr. Drass was on duty when he was injured. (Drass Br. 15) That “[t]he Chief considered him to be on duty” (Drass Br. 13) is not dispositive or significant in this case. A chief of police does not have the authority to override the Legislature, the courts, CRAB, DALA, and PERAC and determine state retirement law. A chief of police cannot carve out exemptions from state retirement law for his department.
Chief Hanlon said this about a police officer slipping and falling in the 7-Eleven parking lot: “If there’s no emergency going on…there’s no duties to perform if nothing’s happening.” This observation applies as well to the police department parking lots. There was no emergency in the police department parking lots when Mr. Drass fell. Therefore, he had no duties to perform and was not on duty before his shift began.
Mr. Drass knew that he was not working when he slipped
On the day of his injury, Mr. Drass wrote in an injury report, “When coming to work, I slipped on ice in parking lot.” (Ex. 2) (emphasis added) He did not write something like, “At the start of my shift” or “Just after I started to work….”
In his application for accidental disability retirement benefits, when asked to describe the job duties that he was performing at the time of the incident, Mr. Drass wrote, “I had just arrived to work for the start of my shift.” (Ex. 1) That statement is significant for two reasons. One, Mr. Drass acknowledged that he had not started working yet; rather, he had just arrived to work. Two, Mr. Drass did not describe the job duties at the time of his injury, as the application asked him to do – because he had none. Mr. Drass did not describe scanning the public parking lot for incidents as his job duty at the time of his injury.
As DALA said in Morales I, a pronouncement that survived later decisions in the case:
Written reports of injury play a key role in evaluating accidental disability retirement claims. Disability retirement applications are signed under the pain and penalties of perjury. Applicants may be held to the description of the circumstances they provide in an application. Thus, when an applicant wrote that he slipped on ice “while walking into work to start day,” he was held to his representation he had sworn to and the denial of his accidental disability retirement application was affirmed. Soos v. State Board of Retirement, Docket No. CR-12-210 (Mass. Div. of Admin. Law App., Dec. 6, 2013).
Morales I (Div. Admin. L. App. Oct. 23, 2015).
I hold Mr. Drass to his representations.
The two parking lots
I was surprised to learn more than an hour into the hearing that the parking lot that the witnesses were testifying about was actually two parking lots, separated by a fence. This would have been information that put the testimony up to that point in context. The testimony would have also been put into context by information that the public parking is generally empty at the start of the 8:00 a.m. shift.
It is not as if Mr. Drass walked through a parking lot where divorced parents transferred children, people experienced drug overdoses and other medical emergencies, and feuding domestic partners confronted each other, as testimony led me to believe. He walked through a different parking lot. It is not even as if Mr. Drass walked through a parking lot next to a second parking lot where those things were likely to happen at the start of his shift. Not only did those things not happen then, they were not likely to happen then, before the start of the 8:00 a.m. shift.
How far was the public parking lot from where Mr. Drass fell? How easy or hard was it to monitor the public parking lot from the parking lot for police personnel? The answers are not in the record, even though this case is Mr. Drass’s to make. Bagley v. Contributory Retirement Appeal Board, 397 Mass. 255, 258 (1986).
I find it not credible that as Mr. Drass walked from his vehicle to the police station, he surveilled a separate parking lot, which was probably empty, at an unknown distance using an unknow viewpoint to ensure that no incident was happening there.
Essential job duties
In his post-hearing brief, Mr. Drass argued:
It is…significant…that…Chief Hanlon considers officers to be on duty as they enter the parking lot before the scheduled start times for their shifts….Under 840 CMR 10.21, PERAC defers to employers to determine essential job duties for the purpose of determining whether an employee is disabled: “The determination of what constitutes an essential duty of a job or position is to be made by the employer, based on all relevant facts and circumstances…” Because the regulation requires PERAC to defer to an employer about what constitutes “an essential duty of a job,” PERAC should also defer to employers about when employees are performing those duties for the purpose of determining whether employees were in the performance of an essential job duty when an allegedly disabling injury occurs. If employers determine the “what” of essential duties but not the “when,” there is doubt about whether PERAC is properly deferring to employers under 840 CMR 10.21.
(Drass Br. 15) This argument is seriously flawed for multiple reasons.
Mr. Drass is correct that under “840 CMR 10.21, PERAC defers to employers to determine essential job duties for the purpose of determining whether an employee is disabled.” (Emphasis added) Mr. Drass’s argument then shifts into an employer’s determination of essential duties “for the purpose of determining whether employees were in the performance of an essential job duty when an allegedly disabling injury occurs.” (emphasis added) Those two purposes are not the same. The first purpose is in the regulation and deserves PERAC’s deference to an employer. The second purpose is not in the regulation and does not deserve deference. It is for a finder of fact to determine whether the member was performing an essential duty when injured.
Mr. Drass’s argument misreads the regulation in another important way. 840 CMR 10.21 reads in part:
The determination of what constitutes an essential duty of a job or position is to be made by the employer….The employer will identify and delineate the duties the employer deems to be essential to the job….
If the Whitman Police Department has determined that a police officer’s scanning the public parking lot as the officer walks to the police station is an essential duty, when and how did the department “identify and delineate” that duty as essential? If the department has done so, it is not in the record. For Chief Hanlon to testify before DALA that a police officer’s shift begins when they enter the parking lot is not the same as the Whitman Police Department’s or Chief Hanlon’s determination under the regulation that a police officer’s scanning a parking lot as the officer walks to the police stationis an essential duty.
For what it’s worth, the Whitman Police Department did not identify a police officer’s scanning the public parking lot as the officer walks to the police station as an essential duty in either the department’s rules or regulations or the collective bargaining agreement. (Exs. 14, 15)
Even if the Whitman Police Department or Chief Hanlon had formally determined under the regulation that a police officer’s scanning the public parking lot on the way to the police station is an essential duty, that determination would not affect this case. If Mr. Drass can no longer perform that supposedly essential job duty, it indicates that he is disabled – which no party disputes – not that he was performing an essential duty when he was injured.
Being in uniform, not being eligible for overtime pay, not being signed in
The fact that Mr. Drass was in uniform and carrying items necessary for his shift does not prove that he was on duty or performing duties.
If two uniformed police officers hypothetically were engaging in horseplay in a police station as in Damiano v. Contributory Retirement Appeal Board, 72 Mass. App. Ct. 259 (2008), they would not be performing duties.
A police officer in Whitman, off duty and out of uniform, who hypothetically witnessed a car crash or bank robbery, might suddenly come onto duty under Rule 13. A hypothetical police officer, off duty and out of uniform, might self-activate or “on-site” himself, Richard Benoit v. Boston Retirement Board and Boston Public Health Commission, CR-16-426, (Div. App. L. App. Oct. 5, 2018), and come onto duty. That is not what happened here.
Stronger evidence about Mr. Drass’s duty status is that he was not eligible for overtime pay for scanning an adjacent parking lot as he walked to work. That demonstrates that he was not performing a duty when he was injured.
The fact that he had not been signed into his shift is also evidence that he was not on duty.
Lamont v. Middlesex County Retirement Board
I am aware of Augustus Lamont v. Middlesex County Retirement Board, CR-98-807 (Div. Admin. L. App, Feb. 18, 2000), which held that a police sergeant who slipped, fell, and injured himself in the parking lot of his police station had been injured on duty and was eligible for accidental disability retirement benefits. It does not govern the instant case for multiple reasons, including these:
The case examined whether the police sergeant was performing his duties, but not whether he had been injured as a result of his duties.
Even though the sergeant was in the police station’s parking lot, the decision found that he had come on duty by filling in for a coworker. That is not the case here.
The denial of Mr. Drass’s application for accidental disability retirement benefits is affirmed.
Dated: April 17, 2026
/s/
_________________________________
Kenneth Bresler
Administrative Magistrate
Division of Administrative Law Appeals
14 Summer Street, 4th floor
Malden, MA 02148
Tel: (781) 397-4700
www.mass.gov/dala
