Opinion
18-P-1285
12-30-2019
Mary K. MORSE v. CONTRIBUTORY RETIREMENT APPEAL BOARD & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Contributory Retirement Appeal Board (CRAB) denied accidental disability retirement benefits, under G. L. c. 32, § 7 (1), to the plaintiff, Mary Morse, a court reporter in the Superior Court in Salem who claimed that she had suffered a permanent mental disability caused by the vicarious trauma she experienced through exposure to the details of violent crimes during her employment. Because CRAB could reasonably have viewed the facts and evidence of this case as failing to establish the causal nexus required for entitlement to accidental disability retirement, we affirm.
Discussion. 1. Standard of review. Our review of CRAB decisions under G. L. c. 32, § 7, is "narrow and highly deferential." Sugrue v. Contributory Retirement Appeal Bd., 45 Mass. App. Ct. 1, 5 n.5 (1998). We give considerable deference to CRAB's experience and discretionary administrative authority. Plymouth County Retirement Bd. v. Contributory Retirement Appeal Bd., 60 Mass. App. Ct. 114, 119 (2003). Accordingly, we will set aside or modify a CRAB decision only if, "after giving due regard to CRAB's expertise ..., the appellant has convincingly demonstrated that CRAB's decision was, considering the entirety of the record ... based upon an error of law or wholly unsupported by substantial evidence." Sugrue, 45 Mass. App. Ct. at 5 n.5. It is not a basis to reverse CRAB's decision that we, upon de novo review, would have come to a different conclusion; a reviewing court may not substitute its judgment for that of "the expert agency when there is evidentiary support in the record for the agency's conclusion." Id. at 6.
2. Uncommon condition. To establish entitlement to accidental disability retirement, Morse bore the burden to show, by a preponderance of the evidence, that her permanent mental disability was caused by an "identifiable condition ... not common and necessary to all or a great many [jobs]." Zerofski's Case, 385 Mass. 590, 595 (1982). See Narducci v. Contributory Retirement Appeal Bd., 68 Mass. App. Ct. 127, 136-137 (2007). On appeal, Morse faults CRAB for comparing her conditions of employment to a subset of all employment types.
Our decision in Fender v. Contributory Retirement Appeal Bd., 72 Mass. App. Ct. 755 (2008), is controlling. There, the employee claimed entitlement to accidental disability retirement based on a permanent mental disability resulting from a gradual deterioration on account of stress caused by job pressures, including increasing demands by superiors and limited resources. Id. at 761-762. CRAB compared this "[i]dentifiable condition" to other "management positions across a broad spectrum of employment" and found that, as compared to that subset of all occupations, the employee's identifiable condition was common. Id. On appeal, we declined to disturb CRAB's conclusion even though CRAB had not compared the employee's job with all jobs and instead focused on a subset of jobs –- those involving management responsibilities. Instead, we deferred to CRAB's "comparative analysis of different professions, an undertaking that was, in the circumstances of this case, properly within the province of its expertise." Id. at 762. Reviewing the evidence before CRAB, we held that, only where there is an "overwhelming probability" that CRAB erred in its analysis, can we "disturb its conclusion." Id. See Plymouth County Retirement Bd., 60 Mass. App. Ct. at 119-120 (deferring to CRAB's determination that highway department superintendent, who was exposed to extreme insubordination during particularly snowy months and other job stresses, suffered an uncommon identifiable condition not shared by managers in many occupations).
In this case, CRAB compared Morse's exposure to the details of criminal cases to the exposure to those details in numerous other occupations involved in the aftermath of criminal activity. Specifically, CRAB determined that the type of exposure experienced by Morse is common across a broad spectrum of jobs in the judicial system, medical fields, and law enforcement. These jobs included police officers, victim advocates, attorneys, judges, court officers, interpreters, and medical personnel. CRAB determined that "the categories of persons" who experience such indirect trauma "are numerous" due to how our society
"responds to violent crime with a panoply of measures designed to ensure that the perpetrator is correctly identified and apprehended, that evidence is collected and witnesses located, that the suspect receives his rights such as bail, counsel, and pretrial and trial protections, that the victim or family are provided with services and medical treatment, that court proceedings and appeals are conducted properly, that records are preserved, and that the offender receives appropriate parole, probation, or re-entry services."
Morse has not shown that there is an "overwhelming probability" that CRAB erred in its comparative analysis. Fender, 72 Mass. App. Ct. at 762.
3. Proximate cause. Relying on the opinions of her medical experts and the medical panel, Morse also contends that CRAB erred in concluding that she failed to show that the criminal cases proximately caused her disability. However, CRAB may reject expert opinions on the basis of its own review of the entirety of the record (including medical and nonmedical evidence). See Narducci, 68 Mass. App. Ct. at 135 ; Lisbon v. Contributory Retirement Appeal Bd., 41 Mass. App. Ct. 246, 254 (1996).
Here, CRAB relied on nonexpert evidence that Morse's alcohol dependency problem, along with depression and anxiety, stemmed back to the time of her first divorce and that her alcohol dependency continued on and off even after she stopped her employment. Because these findings are supported by the record, CRAB acted within its discretion to reject the medical expert evidence. See Narducci, 68 Mass. App. Ct. at 137 ("Findings that disclose facts fairly detracting from the plaintiff's case are sufficient to show that ... [CRAB] was not acting arbitrarily and capriciously even if those facts are not parsed and marshaled by ... [CRAB] in the most convincing manner"). See also Lisbon, 41 Mass. App. Ct. at 255-257 (even where medical panel submitted affirmative certification and physician opinion favorable to applicant, reasonable for CRAB to find lack of causation where evidence showed applicant's longstanding health problems). Under the circumstances, "it cannot be said that there was no evidence from which a reasonable mind could reach a contrary conclusion [from that of the medical experts]." Id. at 258, quoting McCarthy v. Contributory Retirement Appeal Bd., 342 Mass. 45, 48 (1961).
Morse also argues that CRAB's decision should be overturned because the division of administrative law appeals (DALA) had found Morse qualified for accidental disability. CRAB is not bound by DALA's findings and decisions. See Murphy v. Contributory Retirement Appeal Bd., 463 Mass. 333, 336 (2012).
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Judgment affirmed.