Pursuant to G.L.c.32, §16(4), the Petitioner, Traci J. Nelson, is appealing the August 31, 2006 decision of the Respondent, State Board of Retirement, denying her request for accidental disability retirement benefits. (Ex.2) The appeal was timely filed. (Ex. 1) A hearing was held September 11, 2007, 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 - 16) One tape was used. The Petitioner testified. Both parties made arguments on the record.
FINDINGS OF FACT
1. Traci J. Nelson, d.o.b. 2/14/58, worked from February 1991 for a private contractor in food services that serviced Massachusetts Correctional Facilities. She worked at a correctional facility as an Assistant Food Services Manager. She became a Department of Correction (DOC) employee, a Correction Officer (CO) I/ Head Cook, working out of M.C.I. Concord as of December 1991. ("A". Exs. 6 & 9. Testimony)
2. Ms. Nelson passed an entry physical for the CO I job. (Ex. 8)
3. In her job application, Ms. Nelson listed that she left her prior employment May 1983 to July 1990 in food services as a manager due to sexual harassment and discrimination. (Ex. 9)
4. The essential role of a CO is to,
maintain custodial care and control of inmates; patrol correctional facilities; observe conduct and behavior of inmates; investigate suspicious inmate activity; and perform related work as required … basic purpose of this work is to maintain order and security in a correctional institution. (Ex. 7)
CO I is the entry-level position. All COs escort or transport inmates under restraints, do periodic rounds in the institution where they do head counts and other security checks, monitor the movements and whereabouts of inmates, and guard and direct inmates when they are doing work assignments. All COs watch the conduct and behavior of inmates and take note of any significant behaviors in order to prevent disturbances, escapes or other crises and violence. They investigate suspicious inmate conduct involving potential contraband items, weapons or other devises through conducting searches of inmates, packages, mail, inmate quarters, and vehicles. They develop working relationships with inmates so that they are able to refer them for supportive services such as medical psychiatric, or vocational assistance, as well as to foster cooperation. They respond to emergencies and incidents that include fires, disturbances, accidents, security breaches, threats, assaults, and medical emergencies. They produce reports on such events. They must be able to properly and skillfully use firearms, restraints, and fire safety equipment, and to give CPR and First Aid. They do monthly evaluation reports on inmates, make log entries of various activities, and review daily activity reports. They screen visitors, and inspect fire extinguishers and sprinkler systems or alarms or other safety apparatus. The CO I receives direct supervision, including work assignments and instruction on how to carry out assignments. They do not do job performance evaluations. (Ex. 7)
5. The CO's working conditions include being "subject to verbal and physical abuse … subject to injury from firearms … work alone in an isolated area."
(Ex. 7) The CO has to;
make decisions and act quickly in emergency and dangerous situations … motivate others … interact with people who are under physical and/or emotional stress … establish rapport with persons from different ethnic, cultural and/or economic backgrounds … establish and maintain harmonious working relationships with others … deal tactfully with others … assemble items of information in accordance with established procedure … communicate effectively in oral expression … write concisely, to express thoughts clearly and develop ideas in logical order … prepare general reports … maintain a calm manner in stressful and emergency situations … exercise discretion in handling confidential information … adapt to varying work situations. (Ex. 7)
6. All COs have to possess knowledge that includes;
terminology used in correctional institution work … standard methods used in identifying, collecting and preserving evidence … methods of general report writing … ability to recognize in others the symptoms of mental and/or emotional instability … ability to determine the proper format and procedure for assembling items of information. (Ex. 7)
7. A fellow CO working with CO Nelson in the kitchen complained to the Food Services Director sometime in July 1991, that he "was being sexually harassed by other staff in the kitchen." In and around October 1991, the Food Services Director provided copies of the DOC's Sexual Harassment Policy to the kitchen staff, but the CO found this simply led to further incidents against him. The CO felt, upon reporting these further incidents, that nothing was done, and the harassment continued. Into the spring 1992, the CO told his supervisors he was not trying to get officers disciplined, but just wanted the harassment to stop. The harassment continued into the fall 1992. The CO came to feel he was being retaliated against for asking for an end to the harassment. Eventually, this matter was investigated by DOC's Office of Investigations by early January 1993. The CO gave details of his complaints at a January 6, 1993 interview. (Ex. 7)
8. CO Nelson was interviewed by this Investigation Office on January 7, 1993 in connection with the complaints of the harassed CO. She reported the Food Services Director had gone over the DOC Sexual Harassment Policy with the kitchen staff during her first week of work in February 1992. She reported that the harassed CO was out from work due to an industrial accident for some time period between February and April 1992, and that while out, she heard "numerous comments" about him. He was referred to as being gay, a queer, a fag, and a homosexual. When he came back to work, she reported some fellow COs told him he had faked the injury. She also reported fellow COs had told him he had made up the harassment claims. CO Nelson reported how the Food Services Director reviewed the Sexual Harassment Policy with certain COs over their conduct. She told the investigators the CO told her in early April 1992 that he feared the Food Services Director because no action had been taken to stop the harassment. She saw the harassed CO put entries into a log book he kept on these matters. (Ex. 11)
9. CO Nelson reported to the investigators about specific instances of harassment she saw toward the CO. She explained how a Lt./CO remarked to the CO as he bent over, that he had a nice ass, after which he gestured as if he was going to touch the CO's bottom. She reported that a CO called out the name of the harassed CO over the public address system in the dining area, saying he was a homosexual. She noted at least six COs and several inmates were present. She gave the name of an inmate she understood was encouraged by staff to expose himself to the harassed CO. She reported that the harassed CO told her this inmate put his penis in a pita bread pocket and exposed himself to the CO. She also reported that this inmate began to walk around the kitchen with his zipper open and penis showing, covered by an apron he would lift in front of the harassed CO. She noted the Food Service Director asked her if an inmate had ever exposed himself to her, and she said no. (Ex. 11)
10. CO Nelson also described an inmate's drawing of a sexually explicit looking naked female which was hung on the wall of the kitchen office, and that the Lt./CO who had been harassing the CO, told her it was of her. She reported asking the Lt./CO to remove it, but the next day it was still hanging, this time on the kitchen door so many more could view it. She further reported that she was seeking termination of an inmate from doing further kitchen work since he had poor job performance, but this Lt./CO encouraged her to keep him on duty. She said she told the Food Services Director about the drawing. She had removed it from the door. The Food Services Director asked her if she wanted to file a complaint, and she told the investigators she had declined this offer of help. Although she said she did not see this, she heard the Lt./CO who was harassing the CO had also exposed himself to the harassed CO. (Ex. 11)
11. CO Nelson further reported to the investigators that harassing comments continued to be directed at the CO by the same Lt./CO and by a CO with a history of harassing that CO. She reported this happened into the fall 1992 and early 1993. She reported she told the Lt./CO not to call the CO a cunt as she found that word offensive, but that he responded that she and the CO were two of a kind. She reported that she felt he was implying she was gay. She reported that on January 5, 1993, she overheard a conversation where the Food Services Director clapped upon hearing that the harassed CO would be transferred. (Ex. 11)
12. In his interview on January 7, 1993 with the investigators, the Lt./CO was questioned about many of the incidents the harassed CO and CO Nelson described. He denied harassing the CO. As a result of his interview, this Lt./CO became "detached with pay without prejudice pending the outcome of this investigation." The CO who was implicated in the harassing conduct was also questioned by the investigator about the incidents the harassed CO and CO Nelson had described. He also denied harassing the CO, and faced the same status as the Lt./CO pending the outcome of the investigation. The Food Serviced Director was questioned just as the COs had been. He denied the CO had "confronted him with the sexual harassment complaints and thinks that if he did he … would have been able to help him." He acknowledged to the investigators how CO Nelson came to him about the offensive drawing, and that he offered to take care of this, but that she did not want to press charges and that she was taking care of the situation. He reported talking to the Lt./CO and other CO accused of being responsible for the drawing, and told them this conduct would not be tolerated. (Ex. 11)
13. On January 11, 1993, CO Nelson composed a long report about incidents and confrontations she was involved in. In her report she provided dialogue between persons in the kitchen area. She reported on various problems she had, including with an inmate she wanted to leave kitchen duty due to poor job performance, but that she encountered no support for this action. She noted that the inmate had claimed serious chest pains after she sought to remove him from the kitchen. She did not believe the pains were genuine, but were a way to keep his kitchen job. She also did not find it fair to have her participate at a hearing on this inmate's dismissal. She did not want to be shown up in front of an inmate. She noted how numerous grievances she filed had not been addressed. She reported how she felt belittled and harassed at times, and not given the necessary support to do her work adequately. She reported times when she would get nauseous at work over her treatment by superiors. The trigger for the long report was a verbal confrontation with the Food Services Director that was witnessed by fellow officers and by inmates. She reported he was hostile and harassing toward her, and done in retaliation for her cooperation with the investigation of sexual harassment. (Ex. 11)
14. When CO Nelson was re-interviewed by the investigators on January 12, 1993, she reported to them the verbal confrontation she had with the Food Services Director. She reported how after this confrontation "she began to cry and that she vomited twice." In a January 12, 1993 report the Food Services Director wrote for the investigators, he noted how "he questioned C.O. Nelson as to the events regarding the termination of an inmate by her … that his conversation resulted in her crying and that he tried to calm her down." He reported "that she attacked him" about his decision to hold a hearing about the inmate's termination from the kitchen work. (Ex. 11)
15. The DOC Superintendent, Paul L. DiPaolo wrote to CO Nelson on January 13, 1993 to inform her that she was being placed in the status of "detached with pay and without prejudice pending the outcome of an ongoing investigation … that … [the] detachment … [was] in no way to be considered a disciplinary matter. It is a result of concerns … regarding ... [her] ability to perform … duties … as a result of symptoms related to stress observed at our meeting on January 13, 1993." The Superintendent noted that she had shown "courage … in coming forward and cooperating with authorities." He explained that he did not want her working in an environment that was unprofessional and not safe. (Ex. 11)
16. By memorandum of February 4, 1993, the Office of Investigations reported that a meeting with the investigators and CO Nelson occurred on February 2, 1993 at a restaurant parking lot in Taunton for purposes of receiving from CO Nelson the drawing of the naked female. At this meeting, CO Nelson said she felt being kept out of work meant she was being disciplined as she was losing overtime pay. She also did not want to turn over the offensive drawing without a guarantee that no discipline would be taken against her. CO Nelson was given a direct order to turn over the offensive drawing to the investigators, and she did on February 8, 1993. (Ex. 11)
17. CO Nelson returned to work. On March 1, 1993, she wrote a report about an event at work on February 28, 1993. She was on duty when she was "inappropriately grabbed" by another CO as he went for keys "tucked in … [her] pants." She responded not to do that again, and the CO responded that he needed the keys. She noted how two other COs saw this happen. She went to the CO and told him that with all the recent issues at work in the kitchen that he should never have done what he did. To this, CO Nelson heard him respond: "I don't give a fuck at this point, I don't care about anything." He then walked away. (Ex. 11)
18. CO Nelson filed another report on March 30, 1993. She reported her "strongest suspicion that … [her] automobile had been vandalized in the parking lot (sugar is being put in … gas tank)." She noted she had made prior verbal reports to Lt./COs and Sgt./COs about this, and also how she found her car's brake lines had been cut while her car was in the facility parking lot. (Ex. 11. Testimony)
19. Disciplinary proceedings were held against the COs who had harassed the CO whom CO Nelson worked with in the kitchen at M.C.I. Concord. CO Nelson testified about what she knew certain COs had done in terms of harassing the CO, and she alone testified about such conduct. Some of these COs received significant discipline as a result. It was shortly after this when she felt she became a victim of retaliation. She felt this was why her brakes and car were tampered with, and why she faced harassment on the job herself. She felt her superior officers did not stop the retaliation and harassment she experienced. (Testimony)
20. CO Nelson filed a report on April 10, 1993 of "a verbal confrontation with CO/Head Cook." The kitchen count sheet needed to be rewritten and this is what she told the Head Cook who had written it. She learned from Inner Control this needed to happen. The Head Cook asked her for the keys so she could straighten out the matter. CO Nelson responded: "No, the count has to be rewritten." The Head Cook said: "Give me the fucking keys." CO Nelson said no. The Head Cook then "slammed the office door and shouted: "I don't know who the fuck you think you are, now give me the fucking keys." CO Nelson said that she was the officer in charge and that she was not give up the keys. She reported the Head Cook said: "You're not going to fucking tell me what to do. You're no better than me … Not in my longest day will you fucking ever be over me, or ever tell me what to do." CO Nelson felt this was a dispute that was escalating so she radioed for a commanding officer to come. A Capt./CO came, and she explained what was going on. She noted how "several inmate kitchen workers" saw this conduct by the Head Cook which she asserted as being "unprofessional and retaliatory to prior events." (Ex. 11)
21. On April 11, 1993, CO Nelson was on duty when a Capt./CO "confronted" her about an earlier event in the chow hall. She found his words and tone to be "rude, uncalled for and observed by other officers." He inquired why two inmates were removed. At the time, she was writing a report, and she said she did not know why they were removed. He responded to her that he would have to explain this to the Deputy of Security, and he left. CO Nelson continued to write her report. The next day she spoke to the Lt./CO about the incident and about how she felt the Capt./CO had been rude to her. (Ex. 11)
22. On April 14, 1993, CO Nelson had a "verbal confrontation" with the Lt./CO "which was witnessed by several inmates." She had been "serving and overseeing the inmate feeding on the population service line," when he "ordered" her not to let an inmate have a particular lunch item; that if an inmate doesn't want something for lunch then he does not need to take it. He told her that is why there is a cut in the wall. She responded that he should have someone at that hole so that she can "take special orders." The Lt./CO again repeated his order to her. She again responded that is against the "written policy." Later, an inmate put an item on his tray and left it saying something that CO Nelson did not hear. Then, a Sgt./CO told CO Nelson that she was to give that inmate a tray with no meat. She responded that she does not do special orders. She reported how at one time the Lt./CO had told her not to do vegetarian meals. The Sgt./CO again told her to give the inmate the meal with no meat. She did not do this. When the meal time was over, the Lt./CO told her he knew she refused to give the inmate the meal with no meat. He told her he had given her a direct order and had expected that she would obey it. She responded that she had not refused to comply; that she had not heard the inmate. She further argued with him how she would like to see the policy that allows this to happen. She noted in her report of the incident that she found the Lt./CO's order "to be repugnant to the only policy … [she] was aware of." After she discussed this more with the Lt./CO, she began to raise with him "the problems … [she had] been having with CO Sgt.s and Lt.s … telling … [her] conflicting orders." Then, she felt sick and left for the restroom. After that, she left work. (Ex. 11)
23. On April 14, 1993, CO Nelson arrived at work and asked for the keys to the kitchen, and received no response. She asked the Lt./CO if he had his keys and he said no. She returned again to get two sets of keys. She began her regular kitchen routine. She later overheard some COs talking about a woman who lost her job at M.C.I. Concord because she became involved with an inmate. A comment was made to CO Nelson: "Traci, let that teach you a lesson." She responded: "They are all convicted felons. I don't associate with inmates." After having her confrontation with the Lt./CO about special diets, she felt uneasy about the chow line. She put herself at the start of the line near the cut out in the line. She was close to the telephone when it rang. She answered it. In response to saying her name, she was told: "You fucking cunt." Soon thereafter, the telephone rang again. She said her name, and in response heard: "You fucking piece of shit." After this she was asked a question by the Lt./CO, but was so upset she did not respond as she had lost her "composure." When the Lt./Co again asked her the question, she again did not respond. An inmate said to her that she was letting them get to her. She then left work. She felt sick, and was upset by being harassed. She wrote up an incident report. (Ex. 11)
24. On April 17, 1993, CO Nelson reported that her time card had been written on. She asked a few COs if they knew if anyone had done this, and one CO said he saw a particular CO he named looking at her card. She was also told that another CO "had been spreading a rumor that … [her] speaking with an officer (a union rep.) was beyond that of being of a professional nature and out of protocol to his position (union rep.)." The next day she "confronted" the CO. She asked if he had written on her time card. He said he would not do that. She responded she was told he had by two other COs. He acknowledged looking at her time card only. She told him her card was "no one's business." (Ex. 11)
25. On April 20, 1993, CO Nelson was on duty when she talked to the Acting Food Services Director about prior problems in the kitchen. CO Nelson "raised the issue of someone writing on my time card." She asked to "turn in a hand written card to payroll," but the Lt./CO said she could not. CO Nelson continued to press this point, and received the same response from the Acting Food Services Director. This resulted in a meeting with the Acting Food Services Director, the Lt./CO, and CO Nelson. CO Nelson asserted that she wanted her time card with an inaccurate time on it, and to be handled by a particular Sgt./CO she felt was in charge of the time cards. The Acting Food Services Director responded that this was her authority not the Sgt./CO's. She also reprimanded CO Nelson for being disrespectful with her and shouting at her. CO Nelson asserted she was not shouting or being disrespectful. The Acting Food Services Director talked to CO Nelson about leaving work without informing her. CO Nelson said she did not know the Acting Food Services Director was present at the time, and that she had instead told the Lt./CO. CO Nelson explained that she went home sick and had forgotten to punch out her time card. The Acting Food Services Director told CO Nelson she would not write her up. The Acting Food Services Director also spoke to CO Nelson about the proper ways to write up reports. CO Nelson later met with the Sgt./CO she had wanted to see about the time card at a meeting with her union representative CO. She handed over her reports to the Sgt. /CO. She was asked about refusing to submit her time card. She said she had not refused to submit her time card. She was asked the name of the CO who had named a particular CO as the person who wrote on her time card. She refused to reveal any names. She said she had been through enough and did not want more harassment. He then ordered her to reveal the name. She again refused. He said she was refusing a direct order. She left and went back to the kitchen. She wrote another incident report. (Ex. 11)
26. CO Nelson had transferred out of M.C.I. Concord to M.C. I. Bridgewater, by May 1993. She stayed there until December 1993, when she again transferred to M.C.I. Framingham. She did this because she was able to secure a permanent job status by taking the Framingham CO slot. (Ex. 9. Testimony)
27. CO Nelson was able to work successfully at both M.C.I. Bridgewater and at M.C.I. Framingham until 2002. (Testimony)
28. On May 2, 2002, CO Nelson received information from an inmate claiming that a staff member had engaged in sexual misconduct with a female inmate. The inmate named the staff person who was a mental health worker, and named the inmate involved. The inmate told her specific sexual acts involved in the misconduct, and discussed how the staff person brought things for the inmate. This inmate elaborated on other sexual favors staff persons had received from inmates. CO Nelson put all this information, including the names of the staff persons and inmates involved, in a report. She did not reveal the name of the inmate who told her these things. (Ex. 11) She wrote:
At this point, out of fear for my personal safety, I cannot reveal the name of the inmate informant. Please be advised said inmate, in addition to the above information, did provide to this reporting officer additional information regarding other issues I am compelled to disclose. However, I cannot do so without utmost confidentiality. (Ex. 11)
29. While on duty on January 2, 2003, CO Nelson was told disturbing information by an inmate. The inmate provided the name of a Sgt./CO who was "going to kill himself" over a situation the inmate described as the Sgt./CO having a life insurance policy in the name of an inmate. He had been bringing things in for this inmate the informant inmate told her. The inmate told her further information about violent actions planned against certain COs by inmates. CO Nelson felt during this talk, that the inmate broke out in hives. The inmate told her not to tell anyone about the Sgt./CO planning to kill himself. Also, the inmate asked that she not report any of the information she has just been told. CO Nelson reported this information in a confidential report. She did not identify the inmate who told her this information. (Ex. 11)
30. On January 10, 2003, CO Nelson was on duty when she received information from an inmate informant. The inmate had been tested for Lupus at the Shattuck Hospital and CO Nelson was asking her how she was doing. She told CO Nelson that a CO had questioned her about a gold chain with a cross; whether she had given the chain to a particular inmate. The inmate told information to this CO that she now told CO Nelson was a lie to cover for another inmate. CO Nelson questioned the inmate about conduct of some of the inmates in terms of death threats against COs, and why they were made at all. The inmate told her accounts of staff's conduct with inmates. The inmate provided specific details with names of inmates and names of staff. The inmate told CO Nelson after giving her all this information: "I don't want to get involved with the … situation. I don't want to be a rat. You know how it is. I have to live here." CO Nelson said "everything was confidential." All this information was put into a report by CO Nelson. (Ex. 11)
31. On March 3, 2003, CO Nelson was approached by a detainee offering her "cash in exchange for contraband." The detainee told her: "I need you to help me out and do me a favor." CO Nelson refused, but the detainee insisted and pleaded with her. The detainee was saying that she could do this. The detainee was asking her for cigarettes. CO Nelson reported this incident, naming the detainee. (Ex. 11)
32. On or about June 5, 2003, CO Nelson was called in to discuss the reports she filed about what inmates had told her. She felt she was being "stigmatized as an inmate lover." She was told by superior officers that one of the inmates was a known gang member. CO Nelson learned at this meeting that the inmate had been told CO Nelson had reported what the inmate told her to keep confidential. This caused CO Nelson to feel unable to keep her composure. She knew gang member inmates had a history of violence. She told the superior officers she had to leave work. She left after talking to them for about an hour. (Ex. 11. Testimony)
33. CO Nelson wrote a letter on June 9, 2003 seeking a transfer from M.C. I. Framingham. She discussed her fear of retaliation by inmates if she stayed. She mentioned she had experienced retaliation at M.C.I. Concord, and stated: "I cannot tolerate the same again." She was referred to the Stress Unit. (Ex. 11)
34. After this incident, CO Nelson began to see a psychologist, Donald W. Steele, on a regular schedule of visits. She reported on the stress she had in being "obligated to make reports [at work] but not at all guaranteed confidentiality … that when she becomes known as the author of reports she encounters retribution." Dr. Steele detected no "paranoia or delusions … is legitimately fearful for her safety." He concluded she had been a "diligent" CO. He concluded she showed "physical reactions consistent with Acute Stress in the form of fear, hyper-vigilance, sleep disturbance, anorexia, nausea, and preoccupation with thoughts of safety, lack of motivation and weepiness." Dr. Steele concluded these fears were "accurate and grounded in personal experience, both now and in the past, of abuse and retaliation as well as observation of the experiences of others with retaliation by both officers and inmates." He found her unable to perform CO work. (Ex. 14)
35. Although in time she was offered another transfer within DOC, CO Nelson did not take the transfer as she felt unable to continue working as a CO. (Testimony)
36. Dr. Alan Rosansky, a psychiatrist, evaluated Ms. Nelson on August 5, 2003. He diagnosed her with Axis I: Major Depression-Single Episode, and prescribed medications. He continued to routinely treat her into January 2004, prescribing medications. (Ex. 15)
37. DOC's Superintendent, by memorandum of September 24, 2003 from the Deputy Superintendent at M.C.I. Framingham, was informed how CO Nelson had, left the institution claiming she was afraid of staff … provided information to the IPS Team regarding an inmate and a contract employee … was told that an inmate was questioned about her information [and] she stated she was too scared to return to work … began calling in sick and asked for a transfer … was immediately referred to the DOC Stress Unit … In mid July … denied … use of vacation and comp time … had run out of sick time. On July 18, 2003 … met with her and … Stress Unit … asked what we could do to get her back to work … she is afraid of staff and could not return to work here … gave no specific reasons for being afraid, nor did she provide any names of staff … no reported incidents of Traci Nelson being harassed or suffering verbal abuse from other staff … has submitted no reports and in her July interview she could not provide any specific incidents … just afraid to return to this institution. As a result she had been off the payroll. (Ex. 11)
38. The Acting IPS Commander wrote up her interview with CO Nelson for the DOC Superintendent. The report was dated October 14, 2003, and the interview occurred on August 11, 2003. The interview was about CO Nelson's fear of staying at work, and this interview followed an earlier June 4, 2003 interview involving "a confidential report she submitted regarding various instances of inappropriate activities by staff members." The Acting IPS Commander noted how at that time CO Nelson had raised the issue of being in fear and unable to stay at work. Prior to leaving, CO Nelson provided "a note and … [stated] that [an] inmate [she named] had passed her the note the night before … a request … for Officer Nelson to bring her make-up from the street." This inmate heard that CO Nelson had been providing contraband to inmates. When CO Nelson was interviewed, she was asked about these rumors and about other events at work that led to her leaving. CO Nelson said she was aware of this rumor for over a year, but had not "reported each rumor directly to a Supervisor or in a confidential report." In regard to the note from the inmate, she said she read it "and decided she would turn it in to IPS." She explained "her fears for her safety crystallized during her interview with [the Sgt./CO she handed the note to] when she learned the inmate who had told her information confidentially about staff learned she had reported what the inmate told her. That inmate had been interviewed by IPS staff and denied giving CO Nelson the information. She said "this fact, in addition to the nearly constant rumors she had been hearing about herself and various types of problems she had had with other staff members resulted in her … departure from M.C.I. Framingham … Officer Nelson … insisted that she had never brought anything in for an inmate." (Ex. 11)
39. At the interview CO Nelson also said she heard from a Lt./CO of rumors that "she was allowing inmates in her units to have sex with their girlfriends and … that she had brought Chinese food in for inmates." She noted she had been warned by a Lt./CO to "watch her back" because she could be getting set-up. In addition, CO Nelson at the interview described problems she had with staff members. She gave specific information about particular incidents where she felt harassed. In connection with one incident, CO Nelson reported a Sgt./CO said to her: "Do you know what a fucking inmate lover is." At the close of the interview, CO Nelson stated she had to leave as she felt "unsafe at M.C.I. Framingham - that she had done all that she could do to improve the situation but that it was not possible." (Ex. 11)
40. CO Nelson completed an Employee's Claim of Injury form on August 21, 2003, listing the first date of incapacity as June 7, 2003, and listed the reason for the incapacity as harassment and stress at work. She received a lump sum workers compensation settlement approved January 7, 2005. Liability was not accepted.
(Exs. 6 &11)
41. CO Nelson resigned from her DOC CO position on January 25, 2005.
(Exs. 6 & 10)
42. CO Nelson was evaluated by psychiatrist, Alfred G. Jonas, on November 4, 2003. This was done in connection with her workers compensation claim. Dr. Jonas learned about her DOC work history. He learned she had been a CO from 1992 with prior work experience in food services performed for a private contractor in Massachusetts correctional facilities. She reported "completely satisfactory employment" as a CO at M.C.I. Concord for about one and one-half years. (Ex. 16) Dr. Jonas learned that after that time, she was, interviewed in connection with some possible misbehavior on the part of a co-worker, and … that it became assumed that she had reported the co-worker … that she was intimidated, 'harassed,' and that her vehicles were tampered with … Because of this collection of problems, Ms. Nelson felt acute stress, and she was transferred to … Bridgewater … elevated to permanent employment [after about a year] … transferred to … Framingham … there since about 1993 or 1994. (Ex. 16) CO Nelson told Dr. Jonas she did well and "she was appreciated" at Framingham with "no incidents of stress … her experiences in Concord 'didn't follow' her to the other settings." Then, in January 2003, CO Nelson told Dr. Jonas that "she began to receive tips and other pieces of information from inmates implicating corrections officers. She began to file reports about this. At some point, she began to feel again harassed … eventually, a co-worker told her to 'watch [her] back'." (Ex. 16) Dr. Jonas found that when she learned on June 6, 2003 that a Sgt./CO had revealed her name to an inmate as a reporter on what that inmate had told her, she began to fear for her safety with respect to inmates … developed acute symptoms including anxiety, a feeling of stress, restlessness, and vomiting … left work, unable to continue … contacted by correctional authorities in July asking for her welfare and encouraging her to try to return to work … did … in July of 2003, but … was too anxious to be able to function there. She has not returned to work since. (Ex. 16)
43. At this evaluation Dr. Jonas learned about CO Nelson's "substantial symptoms." She reported that she "feels somewhat unreal, … has had persistent ruminations and memories of some of her experiences in Concord … has lost motivation completely … has stopped all of her usual activities. These include exercising, hosting or participating in … [social events] and taking 'mini vacations'." Dr. Jonas learned that she called the Stress Unit for help upon leaving work in June 2003. He understood she sought a transfer, but did not receive it. Dr. Jonas found CO Nelson's interest in returning to work with a transfer to another correctional facility at odds with her feeing unable to continue working. He had knowledge of her sessions with psychologist, Dr. Steele, and of securing medications to help her from psychiatrist, Dr. Rosansky. Dr. Jonas understood that she had no prior psychiatric history. (Ex. 16)
44. Dr. Jonas diagnosed for Axis I, "an initial adjustment reaction, resulting in a formal clinical depression." He did not find the situation was a post traumatic stress disorder, although "her emotional circumstance is close to this diagnosis." (Ex. 16) He noted at Axis IV, that she had "continued apprehension and perhaps a lack of income." He noted at Axis V that she had a "moderate level of symptomatology and constriction of functioning." He did not find her "current regimen of medication nor the current conduct of psychotherapy … helpful to her." Dr. Jonas explained:
[S]he encountered a situation in which she felt she had reason to be fearful … [which] echoed for her a situation she had about ten years ago, in which there was some form of threat against her, vandalism of her vehicle, and a resulting motor vehicle accident. Because of the past episode and the current similar dynamic … has become quite fearful … even upon leaving her employment, she has continued to feel uneasy, symptomatic, and lacking motivation …. (Ex. 16)
Dr. Jonas found the source for CO Nelson's condition to be "the experience she had at M.C.I. Concord, and its amplification because of potentially threatening information she
received in the context of her employment at M.C.I. Framingham." He found her ability to work, "significantly impaired … not manifesting appropriate emotional control … indications of impaired concentration … is overestimating her capacity when she thinks if only given a transfer, she would potentially be able to function well." He opined that "if motivated and with the restrictions of not working in her current work setting and able to redevelop a sense of personal security and safety with treatment she should be able to return to work full time under those conditions in approximately 3 months." (Ex. 16)
45. Dr. Jonas updated his assessment of CO Nelson in December 2003 after reviewing records from Dr. Steele. He noted Dr. Steele's diagnosis of acute stress. Dr. Jonas opined that CO Nelson has been "somewhat preoccupied with her work-related circumstances, but it was not clear that she did not have a reasonable reserve of capacity which she was simply not actualizing … be more functional than she is, if she were sufficiently motivated." (Ex. 16)
46. CO Nelson sought to retire under accidental disability in and around May 2005. Dr. Rosansky supported her claim. (Exs. 3 & 4)
47. A Medical Panel was convened on September 23, 2005 with: Dr. Melvyn Lurie, a psychiatrist; Dr. Thomas R. Sciascia, a neurologist; and, Dr. Joseph Albeck, a psychiatrist. The Panel physicians answered the certificate unanimously in the affirmative. The Panel physicians had before them reports of Dr. Steele, Dr. Rosansky and Dr. Jonas. They had an understanding of CO Nelson's jobs with DOC and of the working conditions at each of the facilities where she worked. They had knowledge of the circumstances of when she felt retaliated against and harassed at the Concord facility early on when she started CO work, and then later on at the Framingham facility. (Exs. 12 & 13) They understood that she left work due to the aftermath of her reports made of, inappropriate and threatening behavior involving inmates and staff at Framingham, and … that she was promised confidentiality as to the source of the report … subsequently learned that her identity had been revealed to the inmate she had reported … became upset, went home, and sought counseling from the stress unit … did not return to her duties … unable to remain there due to her upset at being in that location. (Ex. 13)
The Panel physicians understood CO Nelson had no prior psychiatric history, and that from 2003, she has been treated by Dr. Steele and Dr. Rosansky with psychotherapy and medication. (Ex. 13) They understood that she, has frequent intrusive recollections of … her brakes … cut … daily activities consist mostly of staying in bed … does not go out anymore … no longer able to pay her own bills … usually doesn't answer the phone … had previously been an active and much more social individual. (Ex. 13)
48. The Panel physicians evaluated CO Nelson, and concluded that she "meets
the criteria for … Post Traumatic Stress Disorder, delayed onset, and Major Depressive Disorder." They found her treatments to be appropriate, but that she has experienced "minimal relief of her symptoms." (Ex. 13) They attributed the current condition to the events of June 2003, in the context of the prior life-threatening incidents while she was working at Concord about ten years earlier … [ability to] return to employment, even with continued treatment, is minimal, given her failure to significantly respond to treatments to date … is mentally incapable of performing the essential duties of her job … likely to be permanent, and … is such as might be the natural and proximate result of the personal injury sustained or hazard undergone on account of which retirement is claimed. (Ex. 13)
49. The State Board of Retirement denied accidental disability benefits to CO Nelson based on finding the ultimate causation for the disability was not what she asserted in her claim. She filed a timely appeal. (Exs. 1 & 2)
The evidence supports, including the Medical Panel certificate responses, that the Petitioner is totally and permanently disabled from work as a CO. The Respondent Board does not dispute this. In terms of causation, the Petitioner carries the burden of proof to show that the incidents at work and the working environment she relies upon, are the primary reason for her disability; that they are more than just a contributing cause. Campbell v. Contributory Retirement Appeal Board (CRAB), 17 Mass.App.Ct. 1018 (1984) The Medical Panel only address the medical possibility that the incidents at work and the work environment are the natural and proximate cause of the disability. The local board and CRAB on appeal determine the ultimate causation issue. Lisbon v. CRAB, 41 Mass.App.Ct. 246 (1996); Noone v. CRAB, 34 Mass.App.Ct. 756 (1993) The Panel majority considered all the pertinent factual information, including both medical and non-medical information, and they employed proper standards of evaluation. Malden Retirement Board v. CRAB, 1 Mass.App.Ct. 420 (1973) The Respondent Board did not find sufficient proof of natural and proximate causation in the incidents CO Nelson relies upon.
In Blanchette v. Contributory Retirement Appeal Board (CRAB), 20 Mass.App.Ct. 479, a US Army veteran diagnosed with a severe psychoneurosis who had been treated for this condition and held jobs where interpersonal contacts were at a minimum, found he had difficulties in his school custodian job when he had to interact with a supervisor he could not get along with. He also had trouble in communications with the school principal, and with co-workers. His claim for accidental disability benefits included a number of incidents where he had interactions with those he worked with that caused him great stress. After the last incident, there was evidence he tried to kill himself, became hospitalized, and while hospitalized received a petition from teachers at the school asking that he not return to work at that school. All this caused him emotional harm. Citing G.L.c.32, §7(1), the workers' compensation laws in G.L.Chapter 152, and Zavalgia v. CRAB, 345 Mass. 483, 486 (1963), the Court determined that Mr. Blanchette had to show an emotional stress disability that was the natural and proximate result of a personal injury sustained as a result of the performance of duties. Id., at pgs. 482-483. The Court explained how Mr. Blanchette needed to prove his emotional stress disability was due to a single work event or series of such events, or that the disability was due to a gradual deterioration from doing his work duties under conditions that were not common to all or to most occupations, citing workers' compensation cases of Kelly's Case, 394 Mass. 684, 686 (1985), and Zerofski's Case, 385 Mass. 590, 595 (1982). The Court explained how even if that burden of proof was met, the employment had to be the primary cause of the incapacity, citing Campbell v. CRAB, supra. The Court clarified that both the workers' compensation and accidental disability provisions involve this same standard as a threshold matter in determining entitlement to benefits. Id., pg. 485. The Court found this burden of proof not met by Mr. Blanchette; that his work was a contributor to his disability but not the main reason for it. The Court found his working conditions were not shown to be out of the ordinary, and the incidents at work were not more of a reason for his disabling emotional state than his pre-existing condition.
In Sugrue v. CRAB/Public Employee Retirement Administration (PERA), 45 Mass.App.Ct. 1 (1997), the Blanchette, supra, standard was further clarified for claims involving interpersonal relationships with co-workers and supervisors. Mr. Sugrue claimed accidental disability through having been harassed and discriminated against by fellow police officers and supervisors. In terms of the conflicts with supervisors, the Court found Mr. Sugrue had failed to demonstrate "any intent to inflict emotional harm" upon him. The Court relied on the workers compensation statute, at G.L.c.152, §1(7A), which exempts from being a cause of harm, a "bona fide personnel action." In addition, the Court found that, "the cumulative stress created by his humiliating encounters and job conflicts with his superiors was not an 'identifiable condition … that is not common and necessary to all or a great many occupations,' citing to Blanchette, supra. Id. at pgs. 3-5. The Court emphasized:
As Blanchette teaches, job conflicts and arguments with superiors
and subordinates, including a series of incidents over several years creating feelings of "persecution" and unfair treatment and ultimately
a diagnosed mental illness, do not "distinguish [the applicant's]
occupation from a wide variety of other occupations where
employees face similar pressures and demands." Id., at p.6.
In addition to these standards, CO Nelson's claim does not fail because she was a CO, a job that contemplates having to deal with difficult and dangerous inmates in an overall stressful work environment. In Erkkila v. CRAB & Gloucester Retirement Board, Suffolk Superior Court Civil Action No. 95-5670-D, at p. 5, n. 1, (9/17/97) Judge Cratsley concluded that the job of a police officer is an occupation where the employee is exposed to traumatic incidents that are beyond what many workers are exposed to in their work. He notes that Blanchette, supra, at 487, n. 1., acknowledges that there are occupations where the nature of the work can encompass the out of the ordinary or common such as "life threatening situations or to continual traumatic or depressing events." See, Lydia MacDonald v. New Bedford Retirement Board, CR-98-552 (DALA 8/5/99) (No CRAB Decision) (Police Officer from 1981 with career until 1996 when she became disabled with Post Traumatic Stress Disorder and Major Depression, had affirmative Medical Panel findings and was awarded accidental disability benefits with her claim based on the cumulative impact of many traumatic incidents experienced over her career.) The medical opinion evidence has to go far enough to prove the situation at work is the most important of all triggers to the current state of disability. Robinson v. CRAB, 20 Mass.App.Ct. 634 (1985) CO Nelson's inability to work further as a CO is not just the result of the demands of her CO job wearing her out, but involve very specific, very understandably harassing and/or anxiety producing incidents at work. See, Dubose v. CRAB & State Board of Retirement, Suffolk Superior Court Civil Action No. 98-41486, Ball, J. (5/24/00).
CO Nelson appeared from her testimony and the other evidence in the record to like her CO job at Concord upon commencing it. The difficulty she then faced in this job occurred not too long after she started it. These difficulties were a direct result of her reporting and then testifying at disciplinary proceedings on behalf of a harassed fellow CO kitchen worker and against the interests of other COs who were accused of doing the harassing. The record shows these accused COs did face discipline. Since she alone among the staff stood up for the harassed CO, she was in a difficult situation at work as a result. And, as a result of the reporting of wrongful conduct, she ended up becoming the target of harassment through rude and crude comments made to her on the job. After the discipline was given out, she also faced retaliation from some fellow COs. Her account of her car being vandalized and significantly tampered with I find to be credible and sufficient proof of the occurrences actually happening that she spoke about.
The record further shows that she could not cope with this harassment and retaliation, and ended up having to leave work for a time period. In being put on leave by her employer, she was specifically told that she was not being disciplined, but that it was for her own benefit pending the outcome of a full investigation. After that she was able to do CO work with a transfer granted to another facility where she would be away from the COs who had been harassing and retaliating against her. This shows how her employer was not a party to this harassment and retaliation. On the other hand, the findings made show that this harassment and retaliation was not a subjective feeling CO Nelson formed on her own, but quite objectively proven by the evidence and even acknowledged by her employer. There is no proof that CO Nelson's emotional difficulties at M.C.I Concord and later at M.C.I. Framingham were primarily due to some underlying psychiatric impairment. She appeared to be very sensitive to how she was treated while at M.C.I. Concord. Her reports show this, including her often seeming to refuse to follow direct orders. But, that conduct did not follow through into her future work for DOC, and emerged in connection with her strong anxiety reactions to the harassment and retaliation she faced at M.C.I. Concord.
The record further shows that she was able to successfully get on with her career after this transfer and after another transfer to M.C.I. Framingham where she received a permanent CO slot. She then worked for about ten years without any claims of harassment and retaliation against her as she had faced at M.C.I. Concord. There is no evidence that CO Nelson was receiving ongoing psychiatric care or psychological counseling in order to handle her work as a CO following the first transfer and return to work.
Her current mental health disability was triggered by encountering starting in and around 2002 at M.C.I. Framingham, encounters with inmates and with fellow COs that made her relive her M.C.I. Concord emotional feelings of anxiety, stress and fear of doing her job. This new emotional state she developed is what there is no dispute about between the parties and which the medical evidence supports as permanently disabling, be it post traumatic stress disorder or a severe stress disorder. (See, Exs. 13, 14, 15 & 16)
The types of events she encountered at M.C.I. Framingham included reports she made to her employer in writing about death threats to COs, sexual misconduct, and staff bringing in contraband to inmates. They also involved inmates with gang connections. She also had to cope with rumors that she was bringing in contraband to the inmates. The record is not clear that fellow COs were trying to harass and intimidate her. Rather, this new set of difficulties appear to have been inmate initiated. But, it is credible and understandable to accept her account that she became in fear of her life and safety upon learning that one of the inmates who had told her about serious misconduct occurring or being planned was told that CO Nelson had revealed the inmate's name to investigators. This is what triggered CO Nelson into not being able to continue working as a CO. The evidence presented does not show her reaction to this event was an exaggerated reaction or a set of developments quite common or typical for COs to face. Perhaps if this had been her only occasion at work as a CO to have faced such issues, she might have been able to get over it and continue working. But, against the background of the M.C.I. Concord difficulties, she simply could not continue working. This is what the medical opinion evidence explains.
The Medical Panel found this set of circumstances to merit their affirmative certificate causation response. The opinions of Dr. Steele, Dr. Rosansky, and Dr. Jonas all support the ultimate causation standard being met to support an award of accidental disability benefits. The Petitioner has met her burden of proof. Wakefield Retirement Board v. CRAB, 352 Mass. 499 (1967)
For these reasons, the decision of the Respondent Board is reversed, and the Petitioner is awarded accidental disability retirement benefits.
DIVISION OF ADMINISTRATIVE LAW APPEALS
Sarah H. Luick, Esq.
DATED: January 18, 2008