Opinion
No. 15–P–1382.
12-29-2016
Jan WITKOWSKI v. CONTRIBUTORY RETIREMENT APPEAL BOARD & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Jan Witkowski, an employee for many years of Massport, was working at Boston Logan International Airport on September 11, 2001, when hijackers boarded two planes and caused them to crash into the towers of the World Trade Center in New York City. Ten years later, Witkowski applied for accidental disability retirement benefits pursuant to G.L. c. 32, § 7 (statute), claiming that he suffered from posttraumatic stress disorder (PTSD) stemming from the emotional stress he experienced as a result of the events of September 11, 2001. The Massport Authority Employees' Retirement Board (MAERB) denied the claim on the ground that it had not been filed within two years of the hazard undergone, that is, September 11, 2001, as required by the statute. That denial was affirmed by the Contributory Retirement Appeal Board (CRAB), after which Witkowski sought judicial review pursuant to G.L. c. 30A, § 14. A judge of the Superior Court concluded that CRAB did not err in determining that Witkowski was not eligible for accidental disability retirement benefits, and this appeal ensued. For substantially the reasons set forth in the judge's comprehensive memorandum of decision, we affirm.
General Laws c. 32, § 7(1), as amended by St.1967, c. 826, § 12, provides in relevant part: "no such retirement shall be allowed unless such injury was sustained or such hazard was undergone within two years prior to the filing of such application or, if occurring earlier, unless written notice thereof was filed with the board by such member or in his behalf within ninety days after its occurrence ."
1. Background. The relevant facts are not disputed. Witkowski began working as a terminal manager at Logan Airport in 1997. He became a member of the Massport Authority Employees' Retirement System, which is administered by MAERB, in connection with his employment. On September 11, 2001, Witkowski was the manager of terminal C at the airport. His responsibilities included overseeing the arrival and departure of passengers and ensuring their security. On the morning of September 11, 2001, while Witkowski was attending a mandatory staff meeting, fifty-one passengers and five hijackers passed through security in terminal C and boarded United Airlines flight no. 175. That plane was deliberately crashed into the south tower of the World Trade Center, killing everyone on board. As Witkowski explained in his application for accidental disability retirement benefits, he "always believed that [he] would have spotted the terrorists and might have been able to avoid the devastation and destruction that occurred" had he been present in the terminal and scanning the security line instead of attending the meeting.
The facts are taken from the findings of the administrative magistrate, which CRAB adopted and which neither party challenges, and the underlying medical reports and certifications that were exhibits before the magistrate.
Over a period of several years following September 11, 2001, Witkowski developed multiple ailments brought on, in part, by his emotional stress and the guilt he felt over failing to thwart the hijackers' plan. He experienced depression, fatigue, joint pain, and had difficulty sleeping. He underwent several tests but was unable to obtain a definitive diagnosis. In early 2003, Witkowski had heart surgery that included a stent implant, and in 2008 he was diagnosed with chronic fatigue syndrome. As Witkowski's health deteriorated, he took multiple leaves of absence, but he always returned to work until October 15, 2009, when he began an extended and indefinite medical leave of absence.
Witkowski was also diagnosed with chronic viral infection with cytomegalovirus, Epstein–Barr virus, chlamydia, and mycoplasma.
On February 8, 2011, Massport informed Witkowski that he could no longer continue as an active employee and recommended that he apply for disability retirement benefits. Witkowski then applied for ordinary and accidental disability retirement benefits. The application for accidental disability retirement benefits was based on the hazard undergone on September 11, 2001. Between February and May, 2012, Witkowski was examined by a regional medical panel consisting of three independent physicians (an infectious disease specialist, an internist, and a psychiatrist) to determine his eligibility for retirement. See G.L. c. 32, § 6. All three doctors concluded that Witkowski's condition rendered him permanently incapable of performing the essential functions of his job and that the likely proximate cause of Witkowski's disability was the claimed hazard undergone in the scope of his employment, namely the events of September 11, 2001. None of the physicians questioned Witkowski's diagnosis of PTSD or that it developed as a result of the stress and guilt he experienced in connection with the events of September 11, 2001.
General Laws c. 32, § 6(3)(a), as amended by St.1987, c. 697, § 32, requires that disability retirement applications first be examined by a regional medical panel prior to approval or disapproval of disability retirement benefits. Upon examination, the regional medical panel "shall certify to the board in writing whether such physicians on said panel find that such member is mentally or physically incapacitated for further duty and that such incapacity is likely to be permanent, and in any case involving a retirement under section seven [governing accidental disability retirement benefits], the panel physicians shall state further whether or not the disability is such as might be the natural and proximate result of the accident or hazard undergone on account of which retirement is claimed under said section seven."
MAERB awarded ordinary disability retirement benefits, but denied Witkowski's claim for accidental disability retirement benefits on the ground that Witkowski had not filed his application within two years of the hazard undergone (the events of September 11, 2001) which gave rise to his disability, and he had not otherwise provided timely notice of his injury.
Witkowski appealed from the board's determination to CRAB. An administrative magistrate of the Division of Administrative Law Appeals (DALA) heard the matter and affirmed. Like MAERB, the magistrate concluded that Witkowski was not eligible for accidental disability retirement benefits because it was undisputed that Witkowski did not undergo the claimed hazard within two years prior to filing his application on June 9, 2011. The magistrate also noted that there was no dispute that Witkowski did not file a notice of injury within ninety days after September 11, 2001, or at any other time, and that none of the exceptions to the notice provision set forth in G.L. c. 32, § 7(3)(a), applied to Witkowski.
Witkowski's application is dated February 28, 2011, but the application date determined by the DALA magistrate is June 9, 2011. As nothing turns on this discrepancy, we ignore it.
A party is exempted from the notice requirement if he
"received payments on account of such injury or hazard under the provisions of chapter one hundred and fifty-two or in case he was classified in Group 2, Group 3 or Group 4 and not subject to the provisions of chapter one hundred and fifty-two, if a record of such injury sustained or hazard undergone is on file in the official records of his department."
G.L. c. 32, § 7(3)(a), as amended by St.1987, c. 697, § 35.
Witkowski sought further review from CRAB, which adopted the DALA magistrate's analysis and conclusion, and further ruled that "the notice requirements [under G.L. c. 32, § 7(1) ] are mandatory and that the statute provides no exception for late discovery of a particular diagnosis." In so ruling, CRAB rejected Witkowski's assertion that he had, in fact, complied with the statute's requirements because given the nature of PTSD he was reinjured each day he was at work and his last day of work (October 15, 2009) was within the two-year limitation period. In addition, CRAB was not persuaded by the argument that Witkowski's obligation to provide notice under the statute was equitably tolled until 2011 when, Witkowski asserts, he became aware of his PTSD. As we have noted, a judge of the Superior Court upheld CRAB's decision.
Witkowski does not challenge the magistrate's findings of fact and does not argue that CRAB's decision is not supported by substantial evidence.
2. Discussion. "Judicial review of a CRAB decision under G.L. c. 30A, § 14, is narrow. We are not called upon to determine whether the CRAB decision is based on the weight of the evidence, nor may [the court] substitute [its] judgment for that of CRAB.... A court may not set aside a CRAB decision unless the decision is legally erroneous or not supported by substantial evidence." Retirement Bd. of Salem v. Contributory Retirement Appeal Bd., 453 Mass. 286, 288–289, 901 N.E.2d 131 (2009) (quotation omitted). In addition, our cases hold that if CRAB's interpretation of a statute is reasonable, that interpretation is entitled to deference and this court may not supplant CRAB's interpretation with its own. See Boston Retirement Bd. v. Contributory Retirement Appeal Bd., 441 Mass. 78, 82, 803 N.E.2d 325 (2004) ("Where an agency's interpretation of a statute is reasonable, the court should not supplant it with its own judgment"). See also Murphy v. Contributory Retirement Appeal Bd. ., 463 Mass. 333, 344, 974 N.E.2d 46 (2012).
Witkowski first argues, as he did before the Superior Court judge, that CRAB's decision is legally erroneous because it failed to adequately address the nature of PTSD. According to Witkowski, he sustained the injury not on one day, but over a period of time by reliving the events of September 11, 2001; each day he went to work and was reinjured by those memories. Thus, Witkowski asserts, he sustained an injury within two years prior to filing his application.
Relying, as our cases instruct, on the experience, technical competence, and specialized knowledge of DALA and CRAB, the judge concluded that CRAB's interpretation of the statute was reasonable. See ibid. She noted that to accept Witkowski's argument would essentially vitiate the statute's notice requirements. We agree with the judge's point. In addition, we observe that Witkowski's application for accidental disability retirement benefits was not based on an injury he sustained, but on his exposure to a workplace hazard. The statute provides that the two-year time period begins to run when either "such injury was sustained or such hazard was undergone," indicating, by use of a disjunctive, a distinction between the two. It matters not, as Witkowski alleges, that he could proceed under both theories, because he chose to proceed only under the theory that his disability resulted from a hazard undergone. The concepts of "injury sustained" and "hazard undergone" are distinct. Given Witkowski's express acknowledgment that the basis for his request for benefits is a "hazard [that was] undergone" ten years prior to the filing of his application, we discern no legal error in CRAB's refusal to adopt Witkowski's theory that he was injured continuously, such that the two-year filing deadline was reset daily.
The preprinted application form submitted by Witkowski contains two boxes: one box states "personal injury" and the other box states "hazard." Witkowski checked the box next to "hazard."
We do not decide whether the result would be different if Witkowski had proceeded under the "injury sustained" theory.
Next, Witkowski argues that principles of fairness and equity require that CRAB toll the two-year limitation period because he did not discover that he suffered from PTSD until 2011. Essentially, Witkowski argues that CRAB's decision is legally erroneous because CRAB did not apply the discovery rule to toll the statute's two-year limitation. We disagree.
Witkowski raises an alternative theory for the first time on appeal. He claims that he suffered an initial injury that gradually deteriorated over time, leaving him completely disabled on his last day of work. Because this argument was not raised in any of the prior proceedings, it is waived and we do not reach it. See Lincoln Pharmacy of Milford, Inc. v. Commissioner of the Div. of Unemployment Assistance, 74 Mass.App.Ct. 428, 436, 907 N.E.2d 1128 (2009).
Recognizing the unfairness of a rule that holds that statutes of limitations have run even before a plaintiff knew or reasonably should have known that she may have been harmed, the Supreme Judicial Court adopted a discovery rule "for the purpose of determining when a cause of action accrues, and thus when the statute of limitations starts to run." Bowen v. Eli Lilly & Co., 408 Mass. 204, 205, 557 N.E.2d 739 (1990). The discovery rule "prescribes as crucial the date when a plaintiff discovers, or any earlier date when she should reasonably have discovered, that she has been harmed or may have been harmed by the defendant's conduct." Id. at 205–206, 557 N.E.2d 739. The rule has been applied to a variety of causes of action including, among others, claims of negligence, medical malpractice, and fraudulent misrepresentation. Id. at 206–207, 557 N.E.2d 739.
As a matter of law, CRAB did not err by declining to apply the discovery rule, for two reasons. First, the discovery rule is applied to certain actions only in the absence of a governing statute. Phinney v. Morgan, 39 Mass.App.Ct. 202, 204, 654 N.E.2d 77 (1995) (applying discovery rule out of fairness and equity, in absence of governing statute, to tort action arising out of incestuous child abuse). Second, as the judge observed, the statute sets out two narrow exceptions to the two-year filing requirement. See G.L. c. 32, § 7(3)(a), set out in note 7, supra. The presence of these exceptions demonstrates that the Legislature has already considered when and under what circumstances an employee may be excused from complying with the statute's time requirements. See General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798, 805–806, 711 N.E.2d 589 (1999) (exceptions to statute "are not to be implied. Where there is an express exception, it comprises the only limitation on the operation of the statute and no other exceptions will be implied"). See also Harborview Residents' Comm., Inc. v. Quincy Hous. Authy., 368 Mass. 425, 432, 332 N.E.2d 891 (1975) ("[A] statutory expression of one thing is an implied exclusion of the other things omitted from the statute"). In sum, where, as here, the statute does not provide an exception when the medical consequences of a hazard undergone are not discovered until years later, CRAB was not required to create one.
Judgment affirmed.