Opinion
No. 16–P–70.
12-23-2016
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 judgment of the Superior Court, affirming the decision by the Contributory Retirement Appeal Board (CRAB) to reverse the BRB's denial of Michael Parsons's application for accidental disability retirement (ADR) benefits and award benefits to him. The BRB contends that the judgment was neither legally correct nor supported by substantial evidence. We affirm for substantially the reasons expressed in the thorough memorandum of decision written by the Superior Court judge.
In its appeal, the BRB attempts 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. There is no authority that allows this court 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 Commn., 386 Mass. 414, 420–421 (1982) (quotation omitted). The standard of review, as set out in G.L. c. 30A, § 14(7), is highly deferential to the agency. See Megiel–Rollo v. Contributory Retirement Appeal Bd ., 81 Mass.App.Ct. 317, 320 (2012). We "will reverse only if [CRAB's] decision was based on an erroneous interpretation of law or is unsupported by substantial evidence." Ibid., quoting from Foresta v. Contributory Retirement Appeal Bd., 453 Mass. 669, 676 (2009).
CRAB's decision, adopting the decision of the administrative magistrate of the Division of Administrative Law Appeals (DALA), is supported by substantial evidence appearing in the record. See Seagram Distl. Co. v. Alcoholic Bevs. Control Commn., 401 Mass. 713, 721 (1988). In particular, CRAB's decision finds support in Parsons's testimony, medical evaluations based on magnetic resonance imaging and computerized tomography scans, expert medical opinion on the risks and benefits of instrumented spinal fusion surgery, and the conclusions of a three-doctor medical panel that reviewed Parsons's claim and certified unanimously that he met the medical requirements for ADR benefits. BRB's challenge to CRAB's conclusions essentially suggests that CRAB should have assigned more weight or credibility to other evidence in the record, and should have disbelieved certain evidence weighing in Parsons's favor. The argument fundamentally misapprehends the role of a court conducting judicial review of the decision of an administrative body. See Merisme v. Board of Appeals on Motor Vehicle Liab. Policies & Bonds, 27 Mass.App.Ct. 470, 474 (1989).
The magistrate found that Parsons had proven by a preponderance of the evidence that his disability resulted from the aggravation of a preexisting condition, and not from the "natural, cumulative, deteriorative effects of his preexisting ... condition." Lisbon v. Contributory Retirement Appeal Bd., 41 Mass.App.Ct. 246, 255 (1996).
CRAB's decision, adopting the findings of the magistrate, also concluded that Parsons's decision not to undergo the surgery was reasonable and did not break the "causal nexus" between his injury and the performance of his duties, because the instrumented spinal fusion surgery was invasive and complex, and did not guarantee that Parsons could have returned to perform his work duties. Blanchette v. Contributory Retirement Appeal Bd., 20 Mass.App.Ct. 479, 483 (1985). Contrast Retirement Bd. of Revere v. Contributory Retirement Appeal Bd., 36 Mass.App.Ct. 99, 107–113 (1994). Again, the conclusion finds evidentiary support in the record, and we discern no basis to disturb it.
To the extent that the BRB faults Parsons for his failure to pursue physical therapy, CRAB concluded, with support in the evidence, that participation in physical therapy would not have meaningfully contributed to his ability to return to work. See Vinal v. Contributory Retirement Appeal Bd., 13 Mass.App.Ct. 85, 101 (1982).
Parsons has requested an award of his attorney's fees and costs incurred on appeal. We agree that such an award is appropriate. Parsons shall, within fifteen days of the date of the rescript, file with this court and serve on the BRB a motion for determination of the amount of his 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 fifteen days thereafter, file with this court and serve on Parsons an opposition to the amounts so claimed.
Judgment affirmed.