The Petitioner, Kurt E. Espinola, timely appeals, pursuant to G.L. c. 32, § 16(4), the Bristol County Retirement Board's failure to include a period of three months and twenty-nine days of total incapacity, for which workers compensation benefits were paid to Espinola pursuant to G.L. c. 152, § 34, in the calculation of performed services in office under G.L. c. 32, § 28N.
The parties jointly elected to waive a hearing on the merits, and have elected instead to proceed on written submissions pursuant to 801 CMR 1.01(10)(c). On March 3, 2009, the parties submitted a Joint Memorandum of Agreed Upon Facts in Lieu of Hearing and eleven agreed upon exhibits. (Exs. 1-11.) On the same day, the parties submitted their respective memoranda of law. The record was closed accordingly on March 3, 2009.
FINDINGS OF FACT
Based upon the stipulations of the parties and documentary evidence presented by the parties, I make the following findings of fact:
1. The Petitioner, Kurt E. Espinola, d.o.b. April 12, 1968, was hired as a Corrections Officer with the Bristol County Sheriff's Office on June 25, 1989. (Stipulation; Ex. 1.)
2. Mr. Espinola received workers' compensation benefits, pursuant to G.L. c. 152, § 34, between May 22, 2007 and June 29, 2007 and between August 9, 2007 and October 31, 2007, amounting to a total of three months and twenty-nine days of benefits. (Stipulation; Exs. 2, 3, 4, 5.)
3. Subsequently, Mr. Espinola returned to full duty as a Corrections Officer with the Bristol County Sheriff's Department, and his workers' compensation benefits were terminated accordingly. (Stipulation; Exs. 2, 3, 4, 5.)
4. In 2008, Mr. Espinola inquired of the Bristol County Retirement Board ("Board") about his ability to retire pursuant to the provisions of G.L. c. 32, § 28N. (Stipulation.)
5. By letter dated July 11, 2008, the Board informed Mr. Espinola of an oral opinion it had received from the Public Employee Retirement Administration Commission (PERAC), the regulatory body for the Commonwealth's retirement law and public pension systems. PERAC opined that Mr. Espinola must work until October 25, 2009 in order to avail himself of the retirement allowance offered by G.L. c. 32, § 28N because the time that he spent on workers' compensation does not count as "performed services in said office" under § 28N. (Stipulation; Exs. 6, 7.)
6. By letter dated August 25, 2008, Mr. Espinola's counsel contacted the Board to inquire about the effect of G.L. c. 32, § 14, on Mr. Espinola's retirement request and to request a copy of PERAC's opinion letter. Mr. Espinola's counsel argued that time spent on workers' compensation is considered creditable service and, therefore, should be considered "performed services in said office" under § 28N. (Stipulation; Ex. 8.)
7. By letter dated September 8, 2008, the Board replied to Mr. Espinola's counsel clarifying its position, which was that the time during which a member receives workers' compensation does count as creditable service as defined in G.L. c. 32, § 1, but that § 28N requires performance of duty on the job at the work site. (Stipulation; Ex. 9.)
8. Mr. Espinola filed a timely appeal of the Board's opinion on September 11, 2008. (Stipulation; Ex. 10.)
CONCLUSION AND ORDER
The Petitioner, a corrections officer at a county house of correction, is seeking to retire pursuant to the provisions of G.L. c. 32, § 28N, which provides, in relevant part, that "any correction or jail officer employed by county sheriffs' offices who has performed services in said office for not less than twenty years" shall be retired and receive a retirement allowance as provided for in G.L. c. 32, §§ 12, 13. (Emphasis added.) During his employment with the Bristol County Sherriff's Office, the Petitioner collected workers' compensation on two different occasions for a total of three months and twenty-nine days. Petitioner contends that because the period during which he received workers' compensation is considered creditable service pursuant to G.L. c. 32, § 14(1)(a), it should therefore be counted as "performed services in said office" pursuant to § 28N. The Respondent agrees that the period during which the Petitioner received workers' compensation is creditable service but argues that the § 28N requirement of performed services in office is not the same thing as time for which creditable service is received.
According to the Respondent, § 28N is not based on the principle of accrued creditable service, but rather it is based on the principle of performed service in office, which requires the employee to actually perform the duties of his position for the specified period.
After reviewing the evidence in this case, I conclude that the Petitioner is not entitled to count the period that he received workers' compensation in determining his eligibility for a retirement allowance under G.L. c. 32, § 28N. Section 28N provides an enhanced retirement benefit for county corrections officers and jail officers who have performed services in said office for twenty years. The Division of Administrative Law Appeals (DALA), the Contributory Retirement Appeal Board (CRAB), and the Superior Court have consistently held that performed services under § 28N is not the same thing as creditable service, which is defined in G.L. c. 32, § 1. Creditable service can be earned in several circumstances other than performance of "service," which is defined as "service as an employee in any governmental unit for which regular compensation is paid." G.L. c. 32, § 1. See, e.g., G.L. c. 32, § 4(1)(h) (military service); G.L. c. 32, § 3(4) (prior out-of-state teaching service); G.L. c. 32, § 4(1)(r) (Peace Corps service): G.L. c. 32, § 14(1)(a) (time spent on workers' compensation).
In Perron v. State Board of Retirement, CR-05-351 (DALA 2005), aff'd (CRAB 2006), for instance, the Division of Administrative Law Appeals held, and CRAB affirmed, that creditable service based on military service and purchased pursuant to G.L. c. 32, § 4(1)(h), was not service in office for purposes of calculating the twenty-year requirement under G.L. c. 32, § 28M because that creditable service was not earned for performing services in the office of corrections officer. Using the same logic as in Perron, DALA recently held, in Fournier v. Bristol County Retirement Bd., CR-07-570 (DALA 2009), that creditable service received in a settlement agreement in lieu of arbitration did not qualify as performed services in office.
Likewise, in Lane v. State Retirement Board, No. 9501231B, 1996 WL 1251387, at *4 (Mass. Super. Ct. Mar. 29, 1996), the Superior Court held that prior creditable service as a county correction officer could not be added to creditable service as a state correction officer to satisfy the twenty-year requirement in either § 28M or § 28N. The Court deferred to CRAB's reasoning that the necessary twenty years service must be performed in either the county or state systems, but not a combination of both, because CRAB's interpretation was consistent with the clear statutory language in §§ 28M and 28N, which do not provide for the combination.
Moreover the Legislature uses the term "creditable service" later in § 28N when detailing how the retirement allowance is to be calculated. If the Legislature had wanted to grant the enhanced benefit that § 28N affords based upon creditable service, instead of upon the more stringent test of whether or not the member performed "services" in office, it could easily have done so.
Notwithstanding the clear language of the statute and the consistent treatment of it, Petitioner contends that defining performed service in office as anything other than creditable service is inconsistent with G.L. c. 32, § 14(1)(a), which addresses the effect of receiving workers' compensation payments on members' retirement benefits. Petitioner specifically points to part of § 14(1)(a) which states that a member receiving workers' compensation "retain[s] all the rights of a member in service while he is living, unless and until a retirement allowance becomes effective for him under the provisions of sections one to twenty-eight, inclusive" and separately provides that the member shall receive creditable service for time spent receiving workers' compensation benefits.
Petitioner argues that § 14(1)(a)'s retention of rights applies not just to § 5 superannuation retirement benefits, but also to any retirement allowance provided for "under the provisions of sections one to twenty-eight, inclusive." The main problem is that Petitioner's argument fails to recognize the difference between creditable service and performed service. G.L. c. 32, § 1 defines "creditable service" as "all membership service, prior service and other service for which credit is allowable to any member under the provisions of sections one to twenty-eight inclusive" and "service" as "service as an employee in any governmental unit for which regular compensation is paid." Petitioner's workers' compensation payments are not regular compensation; therefore, Petitioner did not perform "service" in said office for the period that he received workers' compensation payments. The fact that § 14(1)(a) entitles Mr. Espinola to creditable service for the time that he received workers' compensation is irrelevant because he did not perform the "service" as it is defined in § 1.
A related problem is that § 28N does not fall between § 1 and § 28. Section 28N is a completely different section and is not a part of § 28, which deals exclusively with acceptance of the contributory retirement law by local governments. In addition, § 28N is codified after § 28 in the general laws. On its face this means that the retention of rights provided for in § 14(a)(1) is inapplicable to retirement allowances pursuant to § 28N. Moreover, it can be inferred that the Legislature intended performed service to mean something different from creditable service because all of the early retirement provisions that require "performed services in office" are codified after § 28 in the General Laws and are all related to law enforcement. See G.L. c. 32, §§ 28A (state police), 28M (state corrections workers), 28N (county corrections workers).
Petitioner additionally asserts that it would be impossible to read chapter 32 as a whole if performed service meant anything other than creditable service and that defining the two terms differently would thus lead to an absurd result. Petitioner's argument is not very well fleshed out, but there is nothing to support such an assertion. As discussed above, chapter 32 itself defines "creditable service" and "service" differently. Therefore, to ignore the plain language of § 28N, or equate the words "performed services in said office" with "creditable service" would effectively amend § 28N. Cf. Damiano v. Contributory Retirement Appeal Bd., 72 Mass. App. Ct. 259, 262-63 (2008) (civilian 9-1-1 dispatcher injured due to horseplay by a fellow employee was not injured in the performance of her duties, and thus was not entitled to accidental disability retirement benefits pursuant to G.L. c. 32, § 7); Hosking v. Contributory Retirement Appeal Bd., 49 Mass. App. Ct. 710, 711-12 (2000) (receiving workers' compensation and being a "member in service" pursuant to §§ 3(1)(a)(i) and 14(1) does not satisfy "active payroll" requirement of Massachusetts Turnpike Authority's early retirement incentive program).
What is more, § 28N, along with §§ 28A and 28M, are special provisions of chapter 32 that allow state police and corrections officers to retire after only twenty years of "service" in office, regardless of the member's age. In effect, these sections act as an early retirement option, potentially boosting a member's retirement allowance far above the § 5 superannuation allowance to which the member would otherwise be entitled. Of course, any of the covered members have the option of staying employed in their positions and taking the standard superannuation retirement allowance provided for in § 5. Since the retirement allowance under § 28N is potentially so much greater than under § 5 when a member has performed services for twenty years, it makes eminent sense that the Legislature would use a more stringent yardstick than creditable service to measure the service required for a § 28N retirement allowance. This result is far from absurd.
The decision of the Bristol County Retirement Board in this matter is hereby affirmed. The three months and twenty-nine days that the Petitioner received workers' compensation payments shall not be counted as performed services in office for the purpose of determining his eligibility for a retirement allowance pursuant to G.L. c. 32, § 28N.
DIVISION OF ADMINISTRATIVE LAW APPEALS
__/s/_Kenneth J. Forton _______________________
Kenneth J. Forton
DATED: July 24, 2009