Opinion
18-P-1126
09-03-2019
BOSTON RETIREMENT BOARD v. CONTRIBUTORY RETIREMENT APPEAL BOARD & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Boston retirement board (BRB) appeals from a Superior Court judgment affirming the Contributory Retirement Appeal Board's (CRAB) allowance of Deborah Walsh's application for accidental disability retirement benefits. We affirm.
Discussion. 1. Standard of review. Judicial review of a CRAB decision pursuant to G. L. c. 30A, § 14, is narrow and we set aside a decision only where it is, inter alia, legally erroneous or unsupported by substantial evidence. G. L. c. 30A, § 14 (7). See Retirement Bd. of Salem v. Contributory Retirement Appeal Bd., 453 Mass. 286, 288-289 (2009). "Under the substantial evidence test, a reviewing court is not empowered to make a de novo determination of the facts, to make different credibility choices, or to draw different inferences from the facts found by the [agency]." Medi-Cab of Mass. Bay, Inc. v. Rate Setting Comm'n, 401 Mass. 357, 369 (1987). Rather, our review "must give due weight to the experience, technical competence, and specialized knowledge of CRAB." Murphy v. Contributory Retirement Appeal Bd., 463 Mass. 333, 344 (2012).
2. Analysis. a. Personal injury arising out of performance of job duties. On appeal, the BRB argues that the three incidents cited in Walsh's application are not compensable personal injuries because the tasks she was performing when injured were not part of her job duties and did not occur during work hours. We disagree.
Walsh alleges she sustained injuries as a result of the following incidents occurring on (1) September 1, 2009, while lifting and carrying a computer to her classroom from a location on a different floor; (2) October 28, 2009, while moving heavy tables; and (3) December 23, 2009, while breaking up an altercation among several students.
Pursuant to G. L. c. 32, § 7 (1), applicants applying for accidental disability retirement must demonstrate (1) that they are "unable to perform the essential duties of [their] job"; (2) "by reason of a personal injury sustained ... in the performance of [their] duties"; and (3) "that such inability is likely to be permanent." See Murphy, 463 Mass. at 345. Applicants must prove that the disability stemmed "either from a specific incident or series of incidents at work, or from an identifiable condition that is not common and necessary to all or a great many occupations." Adams v. Contributory Retirement Appeal Bd., 414 Mass. 360, 365 (1993), quoting Zerofski's Case, 385 Mass. 590, 594-595 (1982). Walsh proceeded under the first theory. Accordingly, Walsh's proof had to satisfy CRAB that her disability was "the natural and proximate result" of personal injuries sustained in the course of her job duties. Blanchette v. Contributory Retirement Appeal Bd., 20 Mass. App. Ct. 479, 483 (1985). The term "personal injury" is "interpreted similarly" to the same term in the workers' compensation statute. Adams, supra at 361 n.1.
Here, although Walsh's job description does not specifically list carrying classroom equipment and breaking up student fights as part of a teacher's responsibilities, an "employer's determination of essential functions is not controlling ... and is subject to administrative review by [the Division of Administrative Law Appeals (DALA) ] and CRAB." Kalu v. Boston Retirement Bd., 90 Mass. App. Ct. 501, 515 (2016). The DALA magistrate heard testimony from Walsh concerning her responsibilities in addition to those listed on her job description, including how teachers are responsible for setting up their classrooms, maintaining control of their classrooms, and intervening in student fights when necessary. Contrast Kalu, 90 Mass. App. Ct. at 515 (teacher applying for accidental retirement disability did not provide any evidence that she was required to physically intervene in fights between students). Walsh stated that she had to find her computer and set it up prior to the first day of school, and that on the date she moved the tables, no one was available to help her move them. Had she not set up her classroom, Walsh's evaluation would have suffered. The job description itself also states that a teacher must maintain a classroom that is attractive and assume general responsibility for the welfare of the students, further supporting Walsh's assertion that she was engaged in the performance of her job duties on each date. Accordingly, each task was "attributable to the ‘nature, conditions, obligations or incidents of the employment.’ " Zerofski's Case, 385 Mass. at 592, quoting Caswell's Case, 305 Mass. 500, 502 (1940). Contrast Murphy, 463 Mass. at 351 (applicant had burden of producing testimony to support scope of his job duties, "even if it was simply his own testimony").
We also disagree with the BRB's contention that Walsh's injury is noncompensable because each incident occurred during nonwork hours. Although the September 1 incident occurred prior to the first day of school, the DALA magistrate heard testimony from Walsh that the teachers were required to have their classrooms ready prior to the start of the school year. The October 28 incident occurred during Walsh's lunch hour, and the December 23 incident occurred in the morning, prior to the official start of the school day. Walsh, however, was working at the school engaging in the performance of her duties during both incidents. This is not a situation where Walsh was simply walking back from her lunch break, see Namvar v. Contributory Retirement Appeal Bd., 422 Mass. 1004, 1004 (1996), or walking down the stairs on her way to lunch, see Boston Retirement Bd. v. Contributory Retirement Appeal Bd., 340 Mass. 109, 109 (1959), when she was injured. Therefore, Walsh sustained her burden of presenting "evidence to show that at the time [she] sustained [her] personal injur[ies], [she] was engaged ‘in the performance of’ [her] ... duties." Murphy, 463 Mass. at 350, quoting G. L. c. 32, § 7 (1).
b. Causation. Next, the BRB argues that DALA and CRAB applied the wrong causation standard to Walsh's disability claim. The burden is on the applicant to establish the causal nexus between the workplace condition and her disability. See Blanchette, 20 Mass. App. Ct. at 483. "The final determination ... whether causation was proved [is] reserved to [CRAB], based on the facts found and all the underlying evidence, including both the medical and non-medical facts." Lisbon v. Contributory Retirement Appeal Bd., 41 Mass. App. Ct. 246, 254 (1996), quoting Blanchette, supra at 483.
The BRB contends that the DALA magistrate applied the wrong standard because her decision states that "[a]ggravation of a pre-existing condition to the point of total and permanent disability satisfies the natural and proximate requirement." The magistrate acknowledged that Walsh advanced a theory that the three incidents aggravated her injury to the point of total and permanent disability. However, the magistrate's decision is unclear as to whether she found support for this theory or simply relied on a direct causation standard. Nonetheless, the magistrate was correct that "[i]f a condition or incident of work aggravates a preexisting health problem, the employee has suffered a ‘personal injury,’ and may recover from the employer for [her] entire disability" (citation omitted). Zerofski's Case, 385 Mass. at 593. See Baruffaldi v. Contributory Retirement Appeal Bd., 337 Mass. 495, 500-501 (1958).
Further, CRAB's decision did rely on a direct causation standard. CRAB considered Walsh's prior condition, but found that this preexisting condition never caused her to miss work before. Instead, CRAB found that the three incidents caused a new disc protrusion in Walsh's back, which is supported by the evidence. See Murphy, 463 Mass. at 337 (causation is "the province of CRAB, based on the facts found and all the underlying evidence .... The findings of CRAB, if supported by substantial evidence, will be determinative" [quotation and citation omitted] ).
c. Credibility and weight of the evidence. The remaining arguments raised by the BRB attempt to reargue the weight and credibility of the evidence, in effect asking us to draw different medical and factual conclusions from those reached by CRAB. This court has no authority to conduct an independent de novo review of the facts or "to substitute its judgment on questions of fact for that of the agency." Southern Worcester County Regional Vocational Sch. Dist. v. Labor Relations Comm'n, 386 Mass. 414, 420-421 (1982). The BRB's challenges essentially suggest that CRAB should have assigned more weight to other evidence in the record, and should have discredited Walsh's testimony, arguing that the three incidents and Walsh's subsequent injuries never actually occurred. This argument fundamentally misapprehends the role of a court conducting judicial review of the decision of an administrative body, and where CRAB's decision is supported by substantial evidence in the record, we will not disturb it. See Kalu, 90 Mass. App. Ct. at 507 ("We set aside a decision by CRAB only where it is legally erroneous or unsupported by substantial evidence" [citation omitted] ).
The BRB specifically argues that the credibility findings concerning Walsh's disability are insufficient because her medical proof did not meet the requirements of Vest v. Contributory Retirement Appeal Bd., 41 Mass. App. Ct. 191 (1996). We disagree. Vest concerned the timing of the employee's injury, not the date of the medical opinion. The BRB's contention that the physicians' findings are invalid because the physicians did not have knowledge of Walsh's complete medical history is also without merit. See Retirement Bd. of Revere v. Contributory Retirement Appeal Bd., 36 Mass. App. Ct. 99, 106 n.7 (1994) ("A medical panel's findings as to permanence and causation are not conclusive on the local board or CRAB but only stand as ‘some evidence’ on those issues"). We note that the BRB did not make either of these arguments below. See Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989) ("An issue not raised or argued below may not be argued for the first time on appeal").
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d. Attorney's fees. Walsh has requested an award of her attorney's fees and costs incurred on appeal. We agree that such an award is appropriate given the frivolous nature of the BRB's arguments. Walsh shall, within fourteen days of the date of the rescript, file with this court and serve on the BRB a motion for determination of the amount of her attorney's fees and costs, supported by an affidavit detailing such amounts, in accordance with the procedure described in Fabre v. Walton, 441 Mass. 9, 10-11 (2004). The BRB may, within fourteen days thereafter, file with this court and serve on Walsh an opposition to the amounts so claimed.
Judgment affirmed.