Petitioner Karen G. Lowell filed a request for accidental disability retirement benefits with the Worcester Regional Retirement Board, pursuant to M.G.L. c. 32, § 7, based upon a permanent disability caused by emotional injuries she claims to have sustained while performing her duties as the Town of Mendon's treasurer/collector. The Board denied Ms. Lowell's request on May 6, 2006 following an initial factfinding hearing but without convening a medical panel. This timely appeal by Ms. Lowell challenging the Board's decision, pursuant to M.G.L. c. 32, § 16(4), followed. [fn. 1]
I held a hearing on October 15, 2008 at the Division of Administrative Law Appeals, 98 North Washington Street, Boston, Massachusetts. I admitted into evidence four documents: Ms. Lowell's application for accidental disability retirement benefits dated July 20, 2005 (Exh. 1), the Board's denial dated May 3, 2006 (Exh. 2), various medical records pertaining to Ms. Lowell's accidental disability retirement benefits application (Exh. 3), and a transcript of the Board's March 14, 2006 initial factfinding hearing on Ms. Lowell's accidental disability retirement benefits application (Exh. 4). I also marked for identification the parties' joint pre-trial memorandum (Exh. A). Ms. Lowell testified on her own behalf; the Board called no witnesses. Both parties declined an opportunity to file a post-hearing brief and elected, instead, to present closing statements following Ms. Lowell's testimony. There is one cassette tape of the hearing.
Ms. Lowell has presented sufficient evidence that, if unrebutted and believed, would allow a factfinder to conclude that she suffered a permanent disability based upon emotional injuries sustained while performing her duties as town treasurer/collector that were not the result of bona fide personnel action, and is therefore entitled to accidental disability retirement benefits. She is therefore entitled to be examined by a medical panel before her accidental disability retirement benefits application is denied. Accordingly, (1) I vacate the Board's denial of her application for these benefits without convening a medical panel, and (2) I order the Board to convene a regional medical panel of psychiatrists to examine Ms. Lowell and consider the panel's certification (and, if the Board requests its preparation, the panel's report) before determining whether her application for accidental disability retirement benefits should be granted or denied.
Facts that, if unrebutted and believed, would suffice to allow a factfinder to
conclude that Mrs. Lowell is entitled to accidental disability retirement benefits
The sole issue to be decided here is whether a medical panel should be appointed to examine Mrs. Lowell before the Board may deny her benefits application. In deciding this issue, I apply the following standard: Mrs. Lowell must have presented sufficient evidence that, if unrebutted and believed, would allow a factfinder to conclude that she is entitled to accidental disability retirement benefits. See discussion below, at 22-25. I do not weight the ultimate merits of any of her claims or determine whether she is actually entitled to receive the benefits she seeks. Because I conclude that the Board must convene a medical panel, Mrs. Lowell's entitlement to accidental disability retirement benefits is a determination that the Board must make after the medical panel examines her and issues its certification (and its report, if the Board requests that the panel prepare one).
In deciding whether Mrs. Lowell is entitled to be examined by a medical panel, consequently, I make no findings of fact would preempt the Board's post-panel determination of benefits eligibility, including the factfinding upon which its determination will be based. See Rivers v. Peabody Retirement Board, Docket No. CR-07-718 (Dec. 4, 2009; DALA interlocutory dec.; no CRAB dec.) (DALA's earlier decision determining that petitioner made a threshold showing of entitlement to examination by a medical panel before her accidental disability retirement benefits application was denied was not a final merits determination as to benefits entitlement, because (1) it was based upon a different and lower evidentiary standard (prima facie case sufficiency) than applies in an appeal challenging the denial of an accidental disability retirement benefits application on the merits (preponderance of the evidence as to entitlement), and (2) DALA's review of the facts in an appeal challenging benefits denial on the merits is de novo; accordingly, the doctrine of collateral estoppel did not bind DALA to make the same findings in a subsequent appeal challenging benefits denial after a medical panel examined the petitioner, and the petitioner was not entitled to summary decision in the benefits denial appeal based upon the earlier decision finding her entitled to be examined by a medical panel).
Therefore, without preempting the Board's post-panel determination of benefits eligibility in any way, I conclude that if the evidence Mrs. Lowell submitted here were unrebutted and believed
in determining her benefits application on the merits, a factfinder could find the following facts:
1. Petitioner Karen G. Lowell, d.o.b. July 31, 1950, was appointed as Mendon's assistant treasurer by the town's Board of Selectmen on November 6, 1995. (Lowell Testimony; Exh. 3; Exh. 4 at 1, 5.)
2. Following the resignation of the town's elected treasurer/collector, Ms. Lowell was appointed on July 1, 1997 to serve as treasurer/collector until the next election (May 4, 1998). Ms. Lowell ran for this position and was elected treasurer/collector on May 4, 1998. She was re-elected to this position on May 1, 2000. She was again re-elected on May 5, 2003, for a three-year term expiring on May 2, 2006. (Lowell Testimony; Exh. 2: Board of Selectmen memorandum listing dates of Ms. Lowell's service and positions held, dated December 14, 1995 ("position history").)
3. Ms. Lowell's duties as Mendon's treasurer/collector included sending out bills for quarterly town property and excise taxes, keeping tax collection records, tracking and depositing tax payments, maintaining municipal trust funds and bank accounts, and supervising two other employees-an assistant treasurer/collector and a financial clerk-both of whom worked part-time. (Lowell Testimony; Exh. 4 at 6-7; see also Exh. 1: Member's Application for Disability Retirement dated July 20, 2005, attached description of the position of Mendon treasurer/collector's position, which states (at 1) that "[t]he purpose of this position is to perform administrative, supervisory and technical work involving the receipt, expenditure and custody of municipal funds, the borrowing of money, the custody of tax title properties, and the collection of all money due to the town; all other related work as required ...".)
4. As Mendon's population increased between 1997 and 2003, so, too, did the town's tax billings. The number of tax bills that Ms. Lowell's office mailed out trebled during this time, and Ms. Lowell, who was paid for a 37.5 hour work week, found herself working 50-55 hours per week during most weeks and longer on more than one occasion starting in 1998. (Lowell Testimony; Exh. 4 at 7.)
5. Ms. Lowell was examined by Dr. Carl Ciak, her primary care physician at Franklin Primary Care in Franklin, Massachusetts, on September 25, 2000. She complained at that time of "sinus problems, persistent hoarseness, chest pain, swelling of joints, tingling/weakness of hands/feet, changing moles, palpitations or fluttering of heart, frequent heartburn, back pains, joint pains and easy bruising." Dr. Ciak's notes for this visit record that "[t]he patient states none of these problems are major issues or active at this point." Following a routine physical examination, Dr. Ciak's assessment was that "Ms. Lowell appears to be in excellent health with no significant health problems," and he recommended that her next physical examination occur twelve months later. (Exh. 3.)
6. In January 2001, Ms. Lowell presented at Milford-Whitinsville Regional Hospital in Milford, Massachusetts following three weeks of chest pains. Examination ruled out myocardial infarction, and a stress test showed no significant ischemia (inadequate blood flow to a part of the body and, as a result, inadequate oxygen supply to it, caused when the supplying blood vessels are constricted or blocked). Dr. Ciak conducted a post-hospitalization followup visit on January 17, 2001 and recorded a complaint of stress that Ms. Lowell attributed to the competing demands of having to help her mother, who lived at an assisted care facility, caring for a very ill and disabled uncle, and "her job which is full-time very stressful ... ." Ms. Lowell also complained of a depressed mood, frequent crying, difficulty sleeping, and loss of interest in activities she used to enjoy, in addition to heartburn and reflux that responded to Prevacid. Cr. Ciak's impression was that Ms. Lowell's chest pains were related to gastroesophageal reflux, and that she had "some degree of significant depression" for which she would be seeing a counselor. Dr. Ciak renewed Ms. Lowell's Prevacid prescription, prescribed Paxil (30 mg daily) to treat symptoms of acute depression, and ordered a followup visit in one month. (Exh. 3.)
7. Dr. Ciak conducted followup examinations of Ms. Lowell on February 27, 2001 and May 29, 2001, on which dates the Paxil regimen appeared to be working. On August 16, 2001, however, Dr. Ciak recorded that Ms. Lowell was "not doing well" on the Paxil regimen as it made her "feel somewhat spaced out and gives her a very flat affect" and seemed related to a progressive weight gain. He reduced Paxil to 10 mg daily and added Zoloft to the antidepressive regimen (one 25 mg tablet daily in the evening, plus a 50 mg tablet daily. (Exh. 3.)
8. Dr. Ciak recorded no new complaints, no significant side-effects, and an improvement in Ms. Lowell's condition during his followup examination on September 18, 2001. However, one month later, on October 18, 2001, he discontinued Ms. Lowell's Zoloft regimen because she reported that the medication left her with a flat affect and appeared to make her "very tired and spacy" when she woke up in the morning. Dr. Ciak substituted a different antidepressant medication-Effexor, 75 mg daily-to treat Ms. Lowell's depression. In his notes for followup visits on November 14, 2001, December 14, 2001, and March 14, 2002, Dr. Ciak reported that the Effexor regimen appeared to be working well without significant side effects other than mild weight gain. (Exh. 3.)
9. By 2002, the computer software that the town treasurer/collector's office and the town accountant were using was no longer working well, and the town Selectmen directed Ms. Lowell and the town accountant to identify replacement software. Ms. Lowell had no idea how to do this as she had no related training or experience. Already physically exhausted, she began experiencing memory problems and panic and anxiety attacks, and these intensified as she attempted to carry out the software replacement identification task given to her. (Lowell Testimony.)
10. During her followup examination with Dr. Ciak on September 18, 2002, Ms. Lowell reported "tiredness, frequent headaches, visual problems, sinus problems, difficulty swallowing, chest pain, might sweats, tremors of arms/legs, tingling/weakness of hands/feet, changing moles, leg cramps on walking or at night, frequent heartburn and easy bruising." Dr. Ciak's notes for this visit record Ms. Lowell as having states that "none of these symptoms have been significant problems over the course of the past year." The report of Dr. Ciak's physical examination show no unusual observations made during his examination of Ms. Lowell on September 18, 2002 beyond an upper chest area skin lesion that he would remove on October 28, 2002. Dr. Ciak continued to assess Ms. Lowell as suffering from acute depression, for which he maintained Ms. Lowell's Effexor regimen (75 mg daily). (Exh. 3.)
11. Ms. Lowell stood for re-election as town treasurer/collector and won a new three-year term on May 5, 2003. She chose to run, notwithstanding the hours that the job demanded of her and the related stress, because she was convinced at the time that "things would be better" in the treasurer/collector's office and that she could make it so. (Lowell Testimony; Exh. 2.)
12. This expectation proved unrealistic in short order. Ms. Lowell was not able to determine which replacement software the town should purchase. The town accountant ultimately selected new software, which was installed in July 2003 for use by the treasurer/collector's office, the town accountant's office, and other Mendon municipal offices. (Lowell Testimony; Exh. 4, at 11-12.)
13. Using the new software after July 2003 proved problematic, a situation that Mrs. Lowell could not resolve despite her best efforts to do so on her own. Among other things, all of the forms generated by the software, including tax bills and employer tax forms, were designed for use in the State of New York. Ms. Lowell contacted the vendor to report this as a problem with the software's suitability for use by a Massachusetts municipal treasurer/collector's office, and to determine whether the software could generate Massachusetts forms. She learned that this would require re-programming the forms for use with Massachusetts tax collections and payrolls. Ms. Lowell had no programming training or experience, and her single day of training at the software vendor's office in Buffalo, New York in August 2003 did not teach her how to reprogram the software's forms. She asked the vendor to correct the problem, but it required additional payment before it would send a consultant to the town, and the town would not pay for this. In addition, although the town had information and technology staff, correcting or modifying proprietary software such as this was not part of the work these staffers performed. (Lowell Testimony; Exh. 4 at 6, 9-12.)
14. The Board of Selectmen's chairman and administrative assistant directed Ms. Lowell to fix this problem herself. Ms. Lowell was directed, as well, to add Community Preservation Act forms to the software, and also to continue to send out timely tax bills and complete payroll-related tasks. These persons also told her that if she did not do all of these things successfully, the selectmen would bring in other government officials to take over the treasurer/collector's office, it would become known that she could not do her job, and she would be "crucified in the newspaper and on the radio." (Lowell Testimony; Exh. 4 at 6, 9-12.)
15. Although Ms. Lowell had no formal education beyond high school and had received no computer programming training, she attempted to teach herself the use of the software and then attempted to instruct her part-time assistants in its use. This self-instruction required her to work longer hours during the workweek and to work on weekends as well. Ms. Lowell found this task extremely difficult and frustrating. Rather than simply keeping a general ledger and recording deposits as she had done formerly, for example, she was now having to load programs contained in the new software package and convert files created using the old software so they could be used with the new software. She admitted to having "had no idea" what she was doing. Files that she converted for use with the new software would not load, and it would sometimes take several days of telephone calls with the software vendor to resolve the problem. Ms. Lowell needed help to keep up with all of her work, but her assistant refused to work overtime and threatened to quit. (Lowell Testimony; Exh. 4 at 6-11.)
16. While she was attempting to make the new software work in 2003, Ms. Lowell was also running the old software to insure that tax collection and payroll tasks were performed on time. At the town's direction, she was also maintaining manual records of tax and payroll transactions. Ms. Lowell continued to work 50-60 hours per week, devoting 60-70 percent of this time to resolving problems with the new software. In spite of these efforts, however, Ms. Lowell could not complete all of her duties and resolve problems related to the installation and use of the new software. (Lowell Testimony; Exh. 4 at 8-11.)
17. The town's Finance Department refused to authorize additional training in the use of the new software for Ms. Lowell beyond the single day of training she had attended in Buffalo, New York in August 2003. The Board of Selectmen's administrative assistant informed Ms. Lowell that there was no money for additional training, that she would have to do the best she could, and that she should "stop whining and get to work." (Lowell testimony.)
18. Ms. Lowell found herself increasingly stressed, anxious and physically uncomfortable. She attributed this to her job duties: "It was like I was constantly behind and I couldn't catch up once we got the new software." (Lowell testimony; see also Exh. 4, at 15: "It was the new software, the fact that I couldn't get the things done on time, I was being harassed by the selectmen, I was being harassed by the town accountant. If she wanted something she would stand in front of my desk, even if I had a tax payment there or was on the phone, because she didn't want to wait ... .").
19. In mid-September 2003, Ms. Lowell experienced what she described as "mental blackouts." These included inability to remember what to do next while she was preparing the weekly payroll, having to pull over while driving because she could not remember how to reach her destination, and forgetting what she meant to do with food she had prepared. She felt as if she could no longer function and was suffering a mental breakdown. (Lowell testimony; Exh. 4 at 10-11.)
20. On October 20, 2003, Ms. Lowell was examined at Franklin Primary Care by Dr. Monica Woodward, an internist who had succeeded Dr. Ciak as her primary care physician. Dr. Woodward's notes for this visit state:
Patient is here for a[n]xiety issues, feeling stressed and overwhelmed at work. Karen presents here today for an acute visit. She has recently experienced a tremendous amount of stress at her job in the treasurer's office for the town of Mendon. She describes that it has been an increasingly stressful position for some time, and escalated over the years. Most recently there has been some change in computerizing the department, and this has been completely overburdening on many levels. She feels overwhelmed and weepy. Very anxious. Unable to sleep. Uncertain of how she can perform and this contributes more to her inability to perform. She is not sleeping at night. She is not eating well. She feels very isolated and overwhelmed. She denies suicidal or homicidal ideation. Pt. has a past hx (history) of depressive sx (symptoms) in the setting of her mother's illness, but never this incapacitating.
During this visit, Dr. Woodward observed Ms. Lowell to be "very tearful", "tremulous", "stressed" and "profoundly depressive," and noted that she also had difficulty focusing. Dr. Woodward assessed Ms. Lowell as suffering from anxiety reaction and acute depression with severe recurrent episodes, and noted "pt (patient) clearly unable to return to work, and her situation there [is] a direct contributor to sx (symptoms)." She modified Ms. Lowell's antidepressive medication regimen, increasing Effexor to 75 mg. twice daily and adding Ambien 5 mg., also twice daily, and set up psychiatric counseling for her. (Exh. 3.)
21. Dr. Woodward's notes for the October 20, 2003 examination also state that "prior to" the examination she received a telephone call regarding Ms. Lowell from the Mendon Police Chief. With Ms. Lowell's permission, Dr. Woodward returned the call. The Police Chief related that he had been "asked by the town to 'look into' Ms. Lowell's job performance, and shared his feeling that 'no wrongdoing' had occurred and that she seemed to him to be 'overwhelmed.'" Dr. Woodward's notes relate that the Police Chief:
asked for my prognosis and despite Ms. Lowell's permission, I did not share detail, except to say that I felt she was disabled from performing her work at this time but was hopeful that this would improve. I was uncertain how any additional info would be used.
22. On October 20, 2003, Ms. Lowell submitted to the Board of Selectmen a note from Dr. Woodward stating that she should not resume work in her position until she was re-evaluated three weeks later. (Exh. 2: Board of Selectmen memorandum listing dates of Ms. Lowell's service and positions held, dated December 14, 1995.)
23. Dr. Woodward re-evaluated Ms. Lowell on November 10, 2003, who presented for followup of "depression, anxiety, sleep disturbance, and overwhelming stress reaction related to her job." She noted that Ms. Lowell was better able to focus and had fewer "tearful moments" than she had during the October 20, 2003 examination, but was still "frequently tearful" and "weepy thru most of interview," appeared stressed, and was "still quite overwhelmed." Dr. Woodward's notes state that "[i]ssues re job departure have been in the press and this has been extremely difficult for the patient, who feels more privacy stripped from the situation." Her notes also state that Ms. Lowell was "completely disabled with regard to her stress/anxiety." Dr. Woodward's assessment was that Ms. Lowell continued to suffer from anxiety reaction and depression, and, as well, sleep disruption. She continued the antidepressive regimen consisting of Effexor (75 mg, twice daily) and Ambien (5 mg), and added Trazodone, a combination antidepressive and sedative (50 mg.), allowing the psychiatrist counseling Ms. Lowell (Dr. Irving Jacobs) "to work with med adjustments." (Exh. 3.)
24. Ms. Lowell did not return to work after her November 10, 2003 re-evaluation by Dr. Woodward or at any time after. (Exh. 2: Board of Selectmen memorandum listing dates of Ms. Lowell's service and positions held, dated December 14, 1995.)
25. On December 5, 2003, Dr. Woodward conducted a followup examination of Ms. Lowell regarding her anxiety, depression and altered sleep. She observed an improvement in the acuity of Ms. Lowell's symptoms and hopefulness on Ms. Lowell's part that her condition would improve, but her sleep patterns were still "nowhere near baseline," she appeared tense, and Dr. Woodward noted "[v]ery stressful circumstances with details surrounding her job departure and opinions about her job performance appearing in the press." Dr. Woodward continued Ms. Lowell's medication regimen for treatment of depression, anxiety and sleep disorder, and it remained her opinion that Ms. Lowell could not return to her job. In her treatment plan for Ms. Lowell, Dr. Woodward wrote:
pt (patient) unable to return to work due to sx (symptoms) of anxiety and depression, and by pt's hx (history) and the way she has been treated with info on the press, work environment would be overly stressful and even sounding cruel at this time.
26. Dr. Woodward next saw Ms. Lowell for a followup visit on January 6, 2004. Her notes state, under the subheading "Chief Complaint Overview":
Patient presents here today in follow up of her depression and anxiety that have been to a great part situational. Patient's stress, anxiety and depression have been precipitated by immense stress in the workplace. Patient had previously worked in a treasured (sic) collectors position and great shifts have happened within her job definition and responsibilities and patient is now in the midst of a rather ugly and somewhat public embroilment about her ability to continue her job. She has, in my opinion, been completely disabled in this respect. She is undergoing psychiatric care as well and is currently on the anti-depressants and anxiolytics prescribed. Overall I think she has done much better on them. She is able to achieve sleep to a better degree, her mood swings are less dramatic, she is eating, she is able to care for herself and she is able to constructively approach what has been a very daunting and at times cruel process from what she has been exposed to both in the public in the public arena from her friends and certainly from her prior colleagues ... "
Dr. Woodward also noted that Ms. Lowell "remains sad and tearful at times talking about her current situation but is able to be much more insightful and constructive. Clearly looks better rested." She continued to assess Ms. Lowell as suffering from anxiety, depression and sleep disruption, and added to this assessment mood swings and headaches. Although she found Ms. Lowell to have "improved" as a result of her current regimen of medical followup, medication and psychiatric consults, the management of her anxiety and depression "remained tenuous" and it was Dr. Woodward's assessment that Ms. Lowell "remains unable to return to her job or to take on additional responsibilities at this time." (Exh. 3.)
27. Dr. Woodward next saw Ms. Lowell on February 9, 2004 "to follow for mood swings characterized by depression and anxiety much of which stems from a lot of turmoil and stressors from her job from which she has now taken a leave of absence." She noted some improvement: Ms. Lowell appeared to be "doing better on the medications as prescribed and her sleep disturbance is improved and the depression and anxiety symptoms are more manageable," but she had "still not recovered to the point where she could return to her same job situation," and could not handle "extra stressors . . . as well as she previously had . . . . " Dr. Woodward also noted a new problem-"some symptoms of hand numbness and tingling particularly in the right hand and mostly nocturnal" with no noted injury, no particular motion or activity that aggravated this problem, and no neck involvement. Consistent with this complaint, Dr. Woodward noted "[r]ight wrist with a positive Tinel's and Phalen's sign" (both indicators of carpal tunnel syndrome-Tinel's sign is detected by tapping on the medial nerve to detect a tingling sensation, numbness or mild shock-like sensation in the hand, and Phalen's sign is detected by flexing the wrist with the elbow resting on a flat surface and the forearms up to detect tingling, numbness, or pain in the fingers.) Dr. Woodward continued to assess Ms. Lowell as suffering from anxiety reaction, depression, sleep disruption, and headaches, added carpal tunnel syndrome to the assessment, directed that Ms. Lowell use a carpal tunnel splint as much as she could, and continued Ms. Lowell's medication regimen and her followup visits with the psychiatrist. It was also Dr. Woodward's assessment that Ms. Lowell remained "disabled with her anxiety and depression to any additional stressors of which her work situation and all the attention that has also surrounded it have been an immense blow and trauma for her," and even though Ms. Lowell was hopeful about her recovery, the doctor was "doubtful at her ability to return to her same employment situation." (Exh. 3.)
28. Ms. Lowell continued to see Dr. Woodward, on February 23, 2004 for a regular physical examination and for followup visits approximately once a month starting on March 9, 2004 and continuing to October 20, 2004, and once every two months afterward. With minor modifications, the prior medication regime was continued, and Dr. Woodward continued to assess Ms. Lowell as suffering from anxiety, reaction, depression and sleep disruption and mood swings, and during several of the 2004 followup visits, headaches and wrist pain. Ms. Lowell's episodes of depression appeared to have lessened by September 22, 2004, and Dr. Woodward assessed her to be "mildly depressed" on October 20, 2004 and again on December 20, 2004. There was no subsequent assessment of mild depression, however, and Ms. Lowell's depression was noted to be acute, with severe recurrent episodes, on February 22, 2005 and again on January 9, 2006. (Exh. 3.)
29. On July 20, 2005, Ms. Lowell filed an application with the Worcester Regional Retirement Board for accidental disability retirement benefits based upon "depression, anxiety, sleep deprivation, arthritis-right hand" that left her unable to perform all of the essential duties of her position as Mendon's treasurer/collector as of October 21, 2003. In her application, Ms. Lowell identified the incidents or hazards giving rise to her claimed disability thus:
Office hours cut 1997 by 9 hours/week. 34% incr work load by 2003. New software installed 2002 created increased workload. forced to program and convert files without asst. from software co. due to budget.
30. Ms. Lowell's application included a statement by her primary treating physician, Dr. Woodward, certifying that she was mentally or physically incapable of performing the essentially duties of her job, that her disability was likely to be permanent, and that her disability was the natural and proximate result of the personal injury that Ms. Lowell sustained, or the hazard she underwent, in the performance of her duties. Ms. Lowell requested, in her application, that she be examined by a joint regional medical panel. (Exh. 1.)
31. In response to the Board's request, Dr. Woodward filed a narrative report supporting her certification of Ms. Lowell's disability. In her report, dated November 9, 2005, Dr. Woodward noted that Ms. Lowell had been her patient since July 2003 and stated:
Karen [Lowell]'s disability began in 10/2003 related to the extreme stress of her working environment. These stressors created immense anxiety and resultant depression that incapacitated her from continuing to work at her job for the Town of Mendon. Her condition was such that she required ongoing visits with myself and with a psychiatrist. Her treatment required intensive and frequent visits with both of us, in addition to management with medications. Although she has had positive response to these therapies, her ability to return to a work situation remains compromised. She simply is unable to emotionally manage any new work situations and the emotional and interpersonal challenges they may present.
At the current time, Karen remains on medication and continues therapy with the psychiatrist for her depression and anxiety. She remains on medication for these issues and for the profound sleep disturbance she had experienced as well. It is my medical opinion that due to the fatigue, anxiety, depression, decreased attention span and sleep disturbance that she remains completely disabled from returning to the work environment in any capacity at this time. No amount of re-training would change this circumstance. Karen continues to require ongoing medical management for these issues. I do not at this time see that her ability to return to a work environment will improve. I also believe that the unreasonable stressors of workload and politics in her workplace most definitely caused this degree of disability.
32. The Retirement Board held a hearing on Ms. Lowell's application for accidental disability retirement benefits on March 14, 2006. (Exh. 4.)
33. By notice dated May 3, 2006, the Retirement Board notified Ms. Lowell that it had voted (on April 26, 2006) to deny her application as "without merit" and without convening a medical panel to examine her. The Board's notice did not state why it found her application to be without merit, or why it did not convene a medical panel.
34. Ms. Lowell filed a notice of appeal with the Contributory Retirement Appeal Board challenging the Retirement Board's decision on May 11, 2006.
1. Accidental disability retirement benefits
a. Generally: applicable law; role of medical panel
M.G.L. c. 32, § 7(1) provides in pertinent part that a member of a retirement system identified at section 1(1) of the statute (a definition that applies without question to the retirement system managed by the Worcester County Retirement Board) may be retired for accidental disability as of the date specified in the member's application if he or she "is unable to perform the essential duties of his job and ... such inability is likely to be permanent ... by reason of a personal injury sustained or a hazard undergone as a result of, and while in the performance of, his duties at some definite place and at some definite time on or after the date of his becoming a member" of the retirement system. (emphasis added.) An application for accidental disability retirement under M.G.L. c. 32, § 7 cannot be approved unless the applicant:
has been examined first by a regional medical panel and unless the physicians on such panel, after such examination, shall review the pertinent facts in the case, and such other written and oral evidence as the applicant and the employer may present to be reviewed in making a determination of the member's medical condition ... " [and] "[a]t the conclusion of such examination, but in not more than sixty days, the panel shall certify to the board in writing whether such physicians on said panel find that such member is mentally or physically incapacitated for further duty and that such incapacity is likely to be permanent, and in any case involving a retirement under section seven, the panel physicians shall state further whether or not the disability is such as might be the natural and proximate result of the accident or hazard undergone on account of which retirement is claimed under said section seven.
M.G.L. c. 32, § 6(3)(a).
A medical panel's certification, following examination of the employee, as to whether the employee was incapacitated for further duty, whether the incapacity was likely to be permanent, and whether the disability is one that might have been caused by personal injury upon which the disability benefits application is based, "is a 'condition precedent' to accidental disability retirement." Fairbairn v. Contributory Retirement Appeal Bd., 54 Mass. App. Ct. 353, 765 N.E.2d 278, 279 (2002), quoting Hunt v. Contributory Retirement Appeal Bd., 332 Mass. 625, 127 N.E.2d 171 (1955). In contrast, the statute does not make a medical panel's certification a prerequisite to denying accidental disability retirement benefits. Nonetheless, even if a retirement board has the denial of such benefits in mind, a medical panel's examination and certification may provide medical evidence upon which the board can base its decision. See McLean v. City of Medford, 340 Mass. 613, 166 N.E.2d 219, 222-23 (1960). It also furnishes the board with answers to "medical questions which are beyond the common knowledge and experience of [its] members ... ." Malden Retirement Bd. v. Contributory Retirement Appeal Bd., 1 Mass. App. Ct. 420, 298 N.E.2d 902, 904 (1973). A decision to deny disability benefits without convening a medical panel enjoys no such medically-informed support.
An emotional disability may constitute a personal injury for M.G.L. c. 32, § 7(1) purposes if it meets the definition of "personal injury" furnished by the Workers' Compensation Act, M.G.L. c. 152. Fender v. Contributory Retirement Appeal Bd., 72 Mass. App. Ct. 755, 894 N.E.2d 295, 299 (2008)(psychotic depression may constitute a personal injury so as to qualify for accidental disability retirement benefits), quoting Blanchette v. Contributory Retirement Appeal Bd., 20 Mass. App. Ct. 479, 481 N.E.2d 216, 219 (1985). That definition states, in pertinent part:
Personal injuries shall include mental or emotional disabilities only where the predominant contributing cause of such disability is an event or series of events occurring within any employment ... No mental or emotional disability arising principally out of a bona fide, personnel action including a transfer, promotion, demotion, or termination except such action which is the intentional infliction of emotional harm shall be deemed to be a personal injury within the meaning of this chapter.
M.G.L. c. 151, § 1(7A).
b. Proving entitlement to benefits
Whether accidental disability retirement benefits are sought on the basis of an emotional injury not caused by bona fide personnel action or based upon a physical injury, the applicant must prove that the claimed disability "arose 'either from a specific incident or series of incidents at work, or from an identifiable condition that is not common or necessary to all or a great many occupations.'" Adams v. Contributory Retirement Appeal Bd., 414 Mass. 295, 609 N.E.2d 62, 65 (1993), quoting Kelly's Case, 394 Mass. 684, 477 N.E.2d 582, 584 (1985) and Zerofski's Case, 385 Mass. 590, 433 N.E.2d 869, 872 (1982). [fn. 2] Proof of either one of these hypotheses must "satisfy the strict causation standard imposed by the statute: that the plaintiff's employment was a 'natural and proximate cause of the incapacity.'" Blanchette v. Contributory Retirement Appeal Bd., 20 Mass. App. Ct. 479, 481 N.E.2d 216, 219, 220 (1985); see also Fender, 894 N.E.2d at 301.
If the Worcester County Retirement Board had denied Ms. Lowell's accidental disability retirement application following her examination by a regional medical panel and the panel's certification as to whether her disability was work-related, the issue on appeal would have been whether Ms. Lowell was totally and permanently unable to perform the essential duties of the Town of Mendon's treasurer/collector as the proximate result of a personal injury that she sustained, or a hazard that she underwent, as a result of, and while in the performance of, her duties. See M.G.L. c. 32, § 7(1); see also Fender, 894 N.E.2d at 299. To establish her entitlement to accidental disability retirement benefits, Ms. Lowell would have had the burden of proving that (1) she was permanently unable to perform her duties as town treasurer/collector, (2) the injury that allegedly caused her disability arose either from a specific incident or series of incidents at work, or from an identifiable condition that is not common or necessary to all or a great many occupations, and (3) the emotional injuries that allegedly caused her disability were not the result of bona fide personnel action.
If, on the other hand, the Retirement Board had denied Ms. Lowell's application following a regional medical panel's examination and report, she would have had not only the burden of proving a prima facie case as to each of these elements but also (assuming that her case-on-chief sufficed to shift the evidentiary burden) the ultimate burden of persuasion on each of them. [fn. 3] That would have required evidence sufficient to overcome the Retirement Board's rebuttal case as well as to sustain her own case-in-chief.
c. Proving entitlement to examination by a medical panel
In this case, however, no medical panel was convened, and the relief sought here is not a merits decision as to whether Ms. Lowell is entitled to accidental disability retirement payments but, instead, examination by a medical panel to inform the Retirement Board's decision-making. Because both the merits decision and an order to convene a medical panel must be sought under M.G.L. c. 32, § 7(1), entitlement to either type of relief requires proof of the alleged disability's permanency and a causal nexus between the disabling injuries and the applicant's work. However, an order to convene a medical panel would assure no more than that the Retirement Board's decision is medically informed, and would not guarantee a decision favorable to Ms. Lowell. Accordingly, the level of proof required of Ms. Lowell in seeking this relief should be lower than it would be if she were challenging, on its merits, a decision made after a medical panel examined her and certified its findings to the Retirement Board.
That said, I also note that the statute does not make examination and certification by a regional medical panel a right to which the accidental disability retirement applicant is entitled. M.G.L. c. 32, § 6(3)(a) makes this procedure a prerequisite solely to an award of accidental disability retirement payments. The statute leaves the door open, therefore, to denying an accidental disability retirement application without convening a regional medical panel to examine the applicant. The evidentiary threshold that must be crossed to show entitlement to medical panel examination must also be high enough, therefore, to screen out disability claims that have no work-related etiology, are medically speculative, or, where disability is based upon emotional injury, arose unquestionably from bona fide personnel action.
The parties have identified no court decisions articulating an evidentiary standard that an applicant must meet to show entitlement to examination by a medical panel before benefits may be denied under M.G.L. c. 32, § 7(1), and I have found none. Prior decisions of the Division of Administrative Law Appeals (DALA) and of the Contributory Retirement Appeal Board (CRAB) addressing the denial of an accidental disability retirement application without benefit of a medical panel suggest that the applicant must make out a prima facie case showing that she qualifies for accidental disability retirement benefits in order to secure examination by a regional medical panel. These decisions suggest further that making the required prima facie case requires competent evidence showing that the disability is permanent and resulted from injuries sustained by the applicant while in the performance of her duties, and, if an emotional injury is alleged to have caused this disability, that it was not the result of a bona fide personnel action, unless it was an intentional infliction of emotional harm. The decisions also suggest that the application may be denied as a matter of law if these prerequisites to accidental disability retirement benefits cannot be shown under any set of facts. [fn. 4]
2. Sufficiency of petitioner's prima facie case
I apply that evidentiary standard here. To demonstrate that a medical panel should have been convened before her application for accidental disability benefits was denied, Ms. Lowell was required to present sufficient evidence that, if unrebutted and believed, would allow a factfinder to conclude that she suffered a permanent disability based upon emotional injuries sustained while performing her duties as town treasurer/collector that were not the result of bona fide personnel action and is therefore entitled to accidental disability retirement benefits. Stated another way, Mrs. Lowell needed to present a prima facie case showing that the depression, anxiety, sleep deprivation and hand injury she sustained while performing her duties as Mendon's treasurer/collector arose either from a specific incident or series of incidents at work, or from an identifiable condition that is not common or necessary to all or a great many occupations, rendered her permanently disabled, and, as to the emotional damages she alleges (depression, anxiety and sleep disorder) were not sustained predominantly as a result of bona fide personnel action.
Ms. Lowell has made the required evidentiary showing.
As to the existence of a causal nexus, Ms. Lowell had the option, per Blanchette, of demonstrating either an "identifiable condition" of her employment as town treasurer/collector or a work-related event or series of events on the job that caused her injuries. Ms. Lowell identified a series of causative work-related events that she summarized in her accidental disability retirement application as the installation of the new software in 2002 and the increased workload this entailed for her, including being directed to program and convert files without assistance from the software company for budgetary reasons. (Finding 29.) Her testimony presented a more detailed picture of this series of events on the job (above and beyond an increasing workload related to the town's growth) that caused her injuries, including these:
(1) In 2002, the Board of Selectmen directed Ms. Lowell to identify replacement software to run not only her office but other town offices as well, without training, instruction or effective assistance, even though she did not have the slightest idea how to perform this task (Finding 9);
(2) After the software was selected by a different town employee it proved extremely difficult to operate, particularly because although it was ordered for use by a Massachusetts municipality, the software was designed to generate forms for New York municipalities, and could not generate forms that the Town of Mendon could use unless it was reprogrammed or otherwise modified (Findings 12-13);
(3) The Board of Selectmen decided not to pay the software vendor or a qualified consultant to re-program or otherwise adapt this New York-oriented software to perform tax collection and payroll operations for a Massachusetts municipality, apparently to save money; instead, the Selectmen directed Ms. Lowell, who had no training in software programming or related fields, to resolve these problems on her own and, also on her own, to figure out how to convert files using the older software so they could be read by the new software, while at the same time performing her financial duties as treasurer/collector in a timely and efficient manner (Findings13-17);
(4) The Selectmen also directed Ms. Lowell to maintain tax and payroll records manually and to add Community Preservation Act forms to the software at the same time she was expected to correct problems with the new software and make it operable (Findings 14, 16); and
(5) Ms. Lowell was told that if she did not do all of these things successfully or continue to send out timely tax bills and complete payroll-related tasks, the selectmen would bring in other government officials to take over the treasurer/collector's office, it would become known that she could not do her job, and she would be "crucified in the newspaper and on the radio" (Finding 14).
Ms. Lowell's medical records show that before 2002, she was suffering from depression and exhaustion that were in part related to job stress but appeared to be manageable on medication. (Finding 5-8.) Her condition worsened markedly in 2002 after she was directed to identify replacement software for managing town finances and agencies, without experience or training, while continuing to perform her tasks as the town's chief financial officer. Ms. Lowell's medical records document, over a 13-month period from September 18, 2002 through October 20, 2003, a mental and emotional deterioration leading to severe depression as she attempted to perform her normal tasks as a treasurer/comptroller and, as well, software-related tasks given to her personally that were well beyond her training-beyond, in fact, the training of almost anyone other than a software professional, bearing in mind that the new software was highly specialized and could not be used by a Massachusetts municipality unless it was reprogrammed or otherwise modified. Ms. Lowell's uncontradicted testimony shows that these tasks were added to her regular responsibilities to save the town money, without regard to the toll that meeting both the software-related tasks and performing her regular responsibilities might (and did) take upon her. She incurred this toll, in the form of an emotional and mental breakdown, in the course of performing her duties, and medical records prepared over the course of the breakdown support the claim that the resulting emotional disability resulted from a series of job-related events over a 13-month period beginning in 2002 with the direction to identify replacement software.
Dr. Woodward's report in support of Ms. Lowell's application is skimpier in furnishing factual support for her conclusions than might be hoped. However, Dr. Woodward was also Ms. Lowell's treating physician during the relevant time period, and the medical records she prepared support her conclusions amply. These records show a causal nexus between Ms. Lowell's job duties and the injuries she suffered while performing them. They also show that while the severity of Ms. Lowell's depression, anxiety and sleep disorder moderated from time to time with medication, these conditions worsened over time, and the resulting disability is likely to be permanent.
The record also shows that the emotional injuries Ms. Lowell claims were not the result of bona fide personnel action. It might be argued (as the Board of Selectmen did here) that in directing Ms. Lowell to perform software-related tasks-including identifying replacement software to run Mendon's finances and other municipal operations and then figuring out how to make this New York-oriented software work for a Massachusetts town-the Selectmen engaged in no more than the usual personnel-related interactions that transpire between a town and its elected treasurer/comptroller. Even if that view had record support, which it does not, the imposition of this additional work was bundled with a thinly-veiled threat to Ms. Lowell that she would be shamed publicly as incompetent and "crucified" in the media if she did not perform both her regular duties as treasurer/comptroller and the software-related obligations that the selectmen added to them. With apologies to Finley Peter Dunne, the politics associated with an elected town treasurer/comptroller's office may not be "beanbag," but the warning about being shamed and crucified was not given to Ms. Lowell in the course of her re-election campaign. The threat was conveyed to her, instead, as she was being directed by the town to perform very difficult software-related tasks that were beyond her training and experience, including reprogramming and file conversion. The threat was also conveyed in response to Ms. Lowell's request for the training and assistance she needed to carry out these additional software-related duties as well as the regular financial and administrative duties of a growing town's chief financial officer. Regardless of what might be deemed unactionable if uttered in the rough-and-tumble of a political campaign, neither this type of threat nor the conduct it projected falls within the scope of "personnel action including a transfer, promotion, demotion, or termination . . . ," see M.G.L. c. 151, § 1(7A), that would disqualify Ms. Lowell's resulting emotional disability as a personal injury under M.G.L. c. 32, § 7(1). [fn. 5]
I do not make an ultimate determination of medical causation relative to Ms. Lowell's disability, or even of the disability's permanence. I determine only that Ms. Lowell has articulated a prima facie case that she suffered a permanent disability due to emotional injuries she sustained while performing her duties as Mendon's treasurer/comptroller that were not the result of bona fide personnel action. That is enough to justify convening a regional medical panel to examine her so that the disposition of her accidental disability retirement application may be medically informed . [fn. 6]
The decision of the Worcester Regional Retirement Board denying Ms. Lowell's application for accidental disability retirement benefits without convening a medical panel is vacated. The Board is directed to convene a regional medical panel of psychiatrists to examine Ms. Lowell and consider the panel's certification (and, if the Board requests its preparation, the panel's report) before determining whether her application should be granted or denied.
DIVISION OF ADMINISTRATIVE LAW APPEALS
Mark L. Silverstein
Dated: December 4, 2009