Pursuant to G. L. c. 32, § 16(4), the Petitioner, Ronald Halliday, is appealing the December 20, 2006 decision of the Respondent, Cambridge Retirement Board, denying his request for accidental disability retirement benefits as a matter of law for failing to show that the claimed disabling injury was suffered in the performance of his duties. (Ex. 2) The appeal was filed January 29, 2007. (Ex. 1)
A hearing was held February 20, 2008, at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, 4th Floor, Boston, MA 02114, pursuant to G. L. c. 7, § 4H. Various documents are in evidence. (Exs. 1 - 9) The parties filed pre-hearing memoranda which contain some agreed upon facts. ("A") One tape was used. The Petitioner testified. A hearing was held on the timeliness of the appeal along with a hearing on the merits of the claim. Both parties made arguments on the record.
FINDINGS OF FACT
1. Ronald Halliday, d.o.b. 2/24/55, began employment as a Cambridge Police Officer May 23, 1983. He held the rank of Patrol Officer. He became a member of the SWAT Team at the start of his police career. Over the course of his career, Officer Halliday received commendations and other awards for meritorious police service to his community. A SWAT Team member can be called upon at any time to perform these special tasks. (Exs. 5 & 7. Testimony.)
2. Officer Halliday was on duty April 21, 1995 on a 4:00 PM to 11:00 PM tour of duty. After that, he was starting vacation. It was about midnight on April 22, 1995 when he received a call at home asking him if he would like to do overtime work with Officer Burke, patrolling a high crime area of the City. Officer Burke was a fellow SWAT Team member, but this work was not SWAT Team work. Desk Officer Austin Maxwell called him with this offer of overtime work. Officer Halliday agreed to do this work, but he had the right to refuse it. He was swayed in his decision to do this overtime work because he had patrolled in this neighborhood before, and because he wanted to help out a fellow SWAT Team member. (Testimony)
3. This overtime work was to be done by Officer Halliday in uniform, but he was to drive his own car to the location. Officer Burke did not have a cruiser either, but just his own car. Officer Halliday told Officer Maxwell he was on his way. There was no need for Officer Halliday to report first to the Police Station before joining Officer Burke. He had his SWAT Team gear in his car as is his practice. He had his police officer gear as well, including his police radio. (Testimony)
4. Officer Halliday was living in Boston at the time. On his way to join Officer Burke, while still in Boston, he was stopped at a red light behind another car. To his left was a median strip. To his right was a bus. As he checked his rear view mirror, he saw a car coming toward him at a high rate of speed. The car struck the rear of his car. The blow was hard enough to cause his car to go into the car in front of him. He was driving a Lincoln Continental four-door sedan. (Ex. 7. Testimony)
5. Officer Halliday saw that the car that hit him had steam coming out of the radiator. He saw the driver of the car that hit his car begin to maneuver his car to try to squeeze between Officer Halliday's car and the bus. Officer Halliday left his car and approached the driver. He was able to grab inside the car and remove the keys from the ignition. The driver begin to leave the car and to run away. Officer Halliday was able to hold onto him. At this point, he radioed the Boston Police for assistance. He felt the driver was drunk. The Boston Police responded within a short time. The driver was arrested. He was charged with driving under the influence and with use of a car without authority. (Ex. 8. Testimony.)
6. Officer Halliday returned to his car. He drove to the Cambridge Police Station. He filed a motor vehicle accident report. He did not report any physical injuries to himself. (Ex. 8. Testimony.)
7. Officer Halliday then went to work the overtime shift with Officer Burke in the Pine Street area. He was paid for eight hours of overtime work on April 22, 1995. (Testimony)
8. Officer Halliday did not take time off from work right away in connection with any injuries suffered from the April 22, 1995 accident. Until September 19, 1995, Officer Halliday performed his regular full police duties with only four isolated occasions when he was out from work during this time period. (Ex. 7)
9. On May 13, 1995, Officer Halliday had a cervical spine MRI which showed:
Small posterior bulges of C2-C3, C5-C6 and
C6-C7 intervertebral discs. Moderate posterior
protrusion of C3-C4 intervertebral disc with
slight flattening mass effect upon the ventral
aspect of the cervical spinal cord. (Ex. 9)
10. Officer Halliday signed a Police Department injury report dated July 20, 1995 that listed injuries from the April 22, 1995 car accident, and stated that he was treated by the Broadway Clinic in Cambridge. He checked off on the form that he suffered injuries while performing the police function of being on his way to perform overtime work at Pine Street with Officer Burke. (Ex. 7)
11. Officer Halliday's employment was subject to a collective bargaining agreement at the time of the April 22, 1995 car accident. By its terms, any police officer doing overtime work was not able to be compensated for travel time to reach the location of overtime work other than for purposes of going to Lowell Superior Court. Also, if overtime was offered to an officer, there was no reason to accept it. (Ex. 7)
12. Officer Halliday never received G. L. c. 41, § 111F benefits in connection with any time lost from work due to the April 22, 1995 car accident. (Ex. 7)
13. On August 27, 1995, Officer Halliday filed a notice of injury report with his employer. He claimed he was injured his left elbow in the course of arresting a suspect. He also claimed he suffered exposure to pepper spray. He was treated at an emergency room and released. He returned to duty. (Ex. 7)
14. Officer Halliday last worked September 19, 1995. In November 1995, Officer Halliday filed a notice of injury form with the Cambridge Police setting forth his claim that the car accident on April 22, 1995 was suffered while he was working; that it was an in line of duty injury. The City denied his claim, finding he was not on duty when he had the April 22, 1995 car accident. On February 2, 1996, Officer Halliday was off-duty when he was involved in a multiple car rear-end accident. Officer Halliday made an attempt to return to duty in September 1996 doing light duty tasks in the Police Department's Communications Unit, but he stopped doing that work and remained out from work thereafter. In February 1997, Officer Halliday sought a letter from his employer for his 1996 taxes, acknowledging his carpal tunnel syndrome was connected to the April 22, 1995 car accident. His employer continued to find the accident was suffered on his personal time. He was found by the City to have abandoned his position by July 14, 1997 pursuant to G. L. c. 31, § 38, and he was terminated. (Ex. 7)
15. Officer Halliday sought Supplemental Security Income (SSI) payments in March 1998. At that time he claimed an inability to work from September 1996 onward "due to right wrist, shoulder and elbow injuries." He claimed he hurt "his neck, back, wrists, and left elbow during the April 22, 1995 car accident." To support receipt of SSI benefits, he relied on reports of his treating physicians, on the records of the tests he had undergone, and on the operations he underwent. (Ex. 6)
16. Officer Halliday filed for accidental disability retirement benefits on or about May 15, 2006, based on the April 22, 1995 car accident. Dr. Vincent Okeke, an internist who had treated Officer Halliday from June 2006, supported the application. Dr. Okeke relied on the SSI report and its discussion of background medical conditions and on what Officer Halliday claimed were injuries from the April 22, 1995 car accident. Dr. Okeke also gave a physical examination. (Exs. 5 & 6.) Dr. Okeke set forth his findings:
[M]ultiple injuries dating back from April 1995-1996 involving his neck, back, wrists and left elbow; left wrist orifice, right wrist orifice, right shoulder rotator cuff repair; right ulner median nerve damage with thoracic outlet syndrome. MRI of cervical spine; at several small herniated cervical disc bulges and a moderate posterior protrusion intervertebral disc with slight flattening mass effect on the
ventral aspect of the cervical spinal cord at C3-4, C5-7 …severe cervical pain and mid-back pain, and numbness of both legs … which is a result of these injuries suffered as a Police Officer, on the job, in the line of duty. (Ex. 6)
17. No Medical Panel was convened. The Cambridge Retirement Board voted at its December 13, 2006 meeting to deny the application because Officer Halliday had not suffered any injuries while in the performance of his duties on April 22, 1995. This vote was set forth in a letter addressed to Officer Halliday dated December 20, 2006. It was mailed to him by registered mail. At the time, he was living in Suitland, Maryland in a town house that was part of a complex of housing units. The letter was addressed to him at his correct address. (Ex. 2. Testimony.)
18. In the letter of decision, the Cambridge Retirement Board informed Officer Halliday of his right to appeal the denial determination to the Contributory Retirement Appeal Board (CRAB), and that he had fifteen days to file the appeal. The Board included a copy of the pertinent provision, G. L. c. 32, § 16(4). (Ex. 2)
19. Officer Halliday was not at home at the times the postal service tried to deliver the registered letter; on December 26, 2006 at 10:12 AM, at 2:13 PM, and at 4:05 PM. Each time delivery was tried, a note was left at Officer Halliday's address about attempted delivery of the letter, with information to contact the postal service to get the letter. By January 10, 2007, the registered letter had not been claimed. It was returned to its sender, the Cambridge Retirement Board on January 18, 2007. (Ex. 3. Testimony.)
20. The Cambridge Retirement Board sent a copy of the decision letter to Officer Halliday's counsel in Maryland which was received on January 16, 2007. Thereafter, a letter of appeal was filed with CRAB on January 29, 2007. (Exs. 1 & 3. Testimony.)
TIMELINESS OF APPEAL
I held a hearing to determine if the appeal letter had been timely filed. Based on the findings made I conclude it is a timely filed appeal. Officer Halliday never received the decision letter of the Cambridge Retirement Board that was dated December 20, 2006. When the Board sent his Maryland counsel a copy of the decision letter, then, within the next fifteen days, a letter of appeal was filed with CRAB.
Officer Halliday's application for accidental disability retirement benefits was properly denied based on a failure to satisfy the threshold requirement of being in the performance of duties at the time of his April 22, 1995 car accident.
Officer Halliday testified that Officer Maxwell, the Desk Officer, told him on the telephone once he had accepted doing the overtime work with Officer Burke in the Pine Street area, that he was now on the clock. I do not find sufficient proof to agree with Officer Halliday's recollection concerning Officer Maxwell who was not called to testify and who did not complete even a sworn affidavit supporting Officer Halliday's recollection. But, even if he had told Officer Halliday that information, that does not alter the collective bargaining agreement criteria making travel to an overtime work assignment not on duty work. In reaching this conclusion, I rely on the affidavit of Raymond T. Santilli, who had been the Director of Planning, Budget, and Personnel for the City of Cambridge covering the Police Department during this time in April 1995, and who administered Officer Halliday's collective bargaining agreement.
I also find Officer Halliday was not performing a job duty when he had the car accident. He was simply driving to a location to start a job performance duty, i.e., patrolling the area with Officer Burke. For instance, he was not on the radio helping Officer Burke figure out some difficult situation.
Moreover, I do not find that Officer Halliday was in the performance of his duties under the Section 7(1) criteria when he got out of his car at the accident scene and detained the driver of the car that hit his car and used his car radio to contact the Boston Police to come to the scene. In any event, he never testified that he was injured when he left his car and confronted the driver of the other car. He testified the car accident caused him harm.
Case law has established that the member who is injured on the way to start a job duty is not in the performance of duties and is not able to pursue an accidental disability retirement claim. In Richard v. Worcester Retirement Board, 431 Mass. 163 (2000), a public health nurse was allowed to travel from her home directly to her first visit of the day without first checking in at the office. On her way to this visit from her home, she was injured. The Supreme Judicial Court concluded this was not an injury suffered in the performance of her duties. In Namvar v. CRAB, 422 Mass. 1004 (1996), a college professor left the cafeteria where she had lunch and was walking back to her office to commence office hours when she was injured. This was not found to be an injury suffered in the performance of her duties. The Supreme Judicial Court explained that she was not between job performance activities since there was no job duty she was performing in the cafeteria or in the hallway where she fell. In Saulnier v. CRAB, 57 Mass. App. Ct. 1112 (2003), a correction officer who had to be on-call for emergencies, did not suffer an injury in the performance of her duties when she fell in the parking lot since no evidence showed she was in the parking lot responding to an emergency. By denying the claim prior to the Medical Panel evaluation based on this threshold criteria, the Cambridge Retirement Board acted properly. 840 CMR 10.06(2) states that at any stage of the processing of the application the Board can deny the claim based on a matter of law.
I conclude Officer Halliday's appeal was timely filed, but that the decision of the Cambridge Retirement Board is affirmed.
DIVISION OF ADMINISTRATIVE LAW APPEALS
Sarah H. Luick, Esq.
DATED: May 9, 2008