Opinion
18-P-156
03-11-2019
BOSTON RETIREMENT BOARD v. CONTRIBUTORY RETIREMENT APPEAL BOARD & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Boston Retirement Board (BRB) appeals from a Superior Court judge's order affirming the Contributory Retirement Appeal Board's (CRAB) allowance of school teacher Antonina Khramova's application for accidental disability retirement (ADR) benefits. On appeal, BRB contends that CRAB's decision in favor of Khramova is legally erroneous and unsupported by substantial evidence. Because we agree with the Superior Court judge who, in her thorough and well-reasoned memorandum of decision, concluded that CRAB's decision is neither legally erroneous nor unsupported by substantial evidence, we affirm.
Standard of review. When reviewing a decision from CRAB, we must "give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it." G. L. c. 30A, § 14 (7). See Rotondi v. Contributory Retirement Appeal Bd., 463 Mass. 644, 647 (2012). We are mindful that "retirement law is notoriously complex." Murphy v. Contributory Retirement Appeal Bd., 463 Mass. 333, 345 (2012), quoting Namay v. Contributory Retirement Appeal Bd., 19 Mass. App. Ct. 456, 463 (1985). This standard of review is "narrow," Kalu v. Boston Retirement Bd., 90 Mass. App. Ct. 501, 507 (2016), and "highly deferential to the agency on questions of fact and reasonable inferences drawn therefrom." Police Dep't of Boston v. Kavaleski, 463 Mass. 680, 689 (2012).
"We set aside a decision by CRAB only where it is legally erroneous or unsupported by substantial evidence." Kalu, 90 Mass. App. Ct. at 507. Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support [CRAB's] conclusion." G. L. c. 30A, § 1. Murphy, 463 Mass. at 344. It is not our province "to determine whether the CRAB decision is based on the 'weight of the evidence,' nor may we substitute our judgment for that of CRAB." Retirement Bd. of Salem v. Contributory Retirement Appeal Bd., 453 Mass. 286, 289 (2009), quoting Damiano v. Contributory Retirement Appeal Bd., 72 Mass. App. Ct. 259, 261 (2008). Although we review questions of law de novo, see Arlington Contributory Retirement Bd. v. Contributory Ret. Appeal Bd., 75 Mass. App. Ct. 437, 441 (2009), "[u]nder the substantial evidence test, [we are] 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 [CRAB]." Murphy, supra.
Discussion. a. Burden of proof. A "member in service" applying for ADR benefits pursuant to G. L. c. 32, § 7 (1), 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 inability is likely to be permanent." G. L. c. 32, § 7 (1). See Kalu, 90 Mass. App. Ct. at 509 (declaring need for causal connection between disability and employment-related injury).
"A member in service is 'any employee included in the state employees' retirement system . . . who is regularly employed in the performance of his duties.'" Murphy, 463 Mass. at 335. See G. L. c. 32, §§ 1; 3 (1) (a) (i).
On appeal, BRB appears to contest all three prongs of this standard.
In such cases, a three-physician medical panel examines the applicant and certifies in writing whether the applicant is "incapacitated," whether the "incapacity is likely to be permanent," and "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." Murphy, 463 Mass. at 335. See G. L. c. 32, § 6 (3) (a). The "medical panel's certificate is not conclusive regarding the ultimate fact of a causal connection," but it does "represent[] some evidence on the issue." Murphy, supra. Thereafter, the local retirement board -- here BRB -- then considers "the relevant evidence, including the medical panel's certificate of incapacity," and determines whether the applicant is entitled to benefits. Id. at 335-336. See G. L. c. 32, § 7 (1).
"Once an appeal reaches CRAB, the findings of the local retirement board are of no particular significance" (citation omitted). Murphy, 463 Mass. at 336.
Applicants who are "aggrieved by any. . . decision of the retirement board . . . may appeal to [CRAB]." G. L. c. 32, § 16 (4). CRAB then assigns a division of administrative law appeals (DALA) magistrate to hear the case, and after hearing, the magistrate issues a "written decision that is final and binding on the retirement board involved and on all other parties, unless a party objects to such decision in writing to CRAB." Murphy, 463 Mass. at 336. See G. L. c. 32, § 16 (4). In reviewing the applicant's appeal from DALA's decision, while "CRAB is not bound by the DALA administrative magistrate's recommendation," nevertheless, "all subsidiary findings made by the magistrate are entitled to some deference by CRAB, and those findings that are based on credibility determinations by the magistrate are entitled to substantial deference" (citation omitted). Murphy, supra at 336. CRAB makes "the final determination regarding whether an applicant for [ADR] benefits has proved a causal relationship between [the applicant's] permanent disability" and their employment-related injury, "based on the facts found and all the underlying evidence, including both the medical and nonmedical facts." Id. at 337. The findings of CRAB, "if supported by substantial evidence, will be determinative." Namay v. Contributory Retirement Appeal Bd., 19 Mass. App. Ct. at 461.
"Once CRAB issues its decision, a party may seek judicial review of that decision in the Superior Court pursuant to G. L. c. 30A, § 14." Murphy, 463 Mass. at 337.
b. Findings in support of compensable disability. Here, CRAB adopted the DALA magistrate's findings of fact and concluded that Khramova sufficiently demonstrated both a "series of incidents" and a "gradual deterioration" from exposure to "an identifiable condition." The DALA magistrate's findings were grounded in Khramova's testimony that her supervisor assigned her to teach a class that she was not qualified to teach, and refused to provide her with essential classroom materials until nearly two months into the school year. The same supervisor also told Khramova that she should go "back to [her] country where she belonged," and began coming into Khramova's classroom daily and making loud, disparaging comments about Khramova's accent in front of students. Additionally, the school allowed a student who threatened to "shoot" Khramova back into Khramova's classroom the day after the student made the threat, despite Khramova's request that the school transfer the student to a different class.
Khramova asserted both theories in her initial application for ADR benefits, claiming that she "was exposed to a hostile, abusive, discriminatory work environment" between September 2, 2008, and December 31, 2008, on a "daily basis." CRAB concluded that "Khramova's application is written as if she were relying on the gradual deterioration theory," but "agree[d] with the DALA magistrate that the application was based on a series of specific incidents."
As we note below, at the DALA hearing, BRB elected not to cross-examine Khramova, nor did it call any witnesses of its own.
In terms of the "series of incidents" theory, CRAB concluded that Khramova's application specified that her harassment continued "on a daily basis" between September 2, 2008 through December 31, 2008, and that Khramova filed a dated incident report related to the death threat from the student, making her claim "sufficiently specific as to date and description to support a theory based on individual events." In relation to the "gradual deterioration" theory, CRAB concluded that the school's "extreme" treatment of Khramova caused her disabilities, and fell outside the typical "pressures and demands" that employees commonly face at work. Blanchette v. Contributory Retirement Appeal Bd., 20 Mass. App. Ct. 479, 487 (1985). See Plymouth County Retirement Bd. v. Contributory Retirement Appeal Bd., 60 Mass. App. Ct. 114, 120 (2003).
c. BRB's arguments. First, BRB argues that there was not substantial evidence supporting CRAB's conclusion that Khramova had a compensable disability. As BRB correctly asserts, an applicant applying for ADR benefits as a result of an emotional disability must demonstrate that the disability arose from either (1) "a single workplace event or series of events," or (2) a "gradual deterioration" from exposure "to an identifiable condition . . . that is not common and necessary to all or a great many occupations" (citation omitted). Fender v. Contributory Retirement Appeal Bd., 72 Mass. App. Ct. 755, 761 (2008). See Plymouth County Retirement Bd. v. Contributory Retirement Appeal Bd., 60 Mass. App. Ct. 114, 120 (2003) (concluding employer's obstruction of employee's ability to perform duties not "common to all or a great many occupations").
Under either theory, the applicant must prove that their "disability was causally related to the personal injury sustained in the course of [their] employment." Kalu, 90 Mass. App. Ct. at 509.
BRB cites to no evidence in the record to support its claim that the denial of supplies, inappropriate course assignments, threats, and denigration that Khramova experienced are "typical pressures and demand[s]" of teaching. Despite BRB's contention that CRAB did not rely on "any actual proof or independent evidence" when evaluating Khramova's claim, the DALA magistrate explicitly credited Khramova's testimony, and CRAB properly deferred to that credibility determination. See Kalu, 90 Mass. App. Ct. at 509 ("CRAB adopted the DALA magistrate's subsidiary factual findings, with five modifications"). At the DALA hearing, BRB could have introduced its own witnesses, or cross-examined Khramova to rebut Khramova's testimony, but elected not to do so. Consequently, BRB cannot now seek to have a reviewing court "substitute [its] judgment for that of CRAB" regarding the credibility of Khramova's testimony. Kalu, supra at 507.
CRAB concluded that the school's actions did not constitute "bona fide, personnel action[s]." G. L. c. 152, §§ 1 (7A). CRAB further concluded that there was no "good faith" or "genuine personnel" reason for assigning Khramova to classes that she was unqualified to teach, denying her necessary supplies, allowing her supervisor to comment on her accent in front of students, or returning an aggressive student immediately to her classroom. Determining whether a mental injury arises "out of a bona fide, personnel action is normally within the scope of the magistrate's competence." Fender, 72 Mass. App. Ct. at 763. As a reviewing court, like the Superior Court, we lack the authority to "substitute our judgement for that of CRAB" in relation to this finding. Kalu, 90 Mass. App. Ct. at 507.
Per G. L. c. 152, § 1 (7A), an applicant will not be compensated for an "emotional disability" that "aris[es] principally out of a bona fide, personnel action." G. L. c. 152, § 1 (7A). Fender, 72 Mass. App. Ct. at 762-763.
Second, BRB argues, as it did unsuccessfully in the Superior Court, that there was not substantial evidence supporting CRAB's determination that Khramova complied with recommended medical treatment. BRB submits that, per Retirement Bd. of Revere v. Contributory Retirement Appeal Bd., 36 Mass. App. Ct. 99, 102, 108 (1994), Khramova did not have an "absolute right to refuse available medical treatment," and that CRAB should have considered Khramova's cessation of antidepressant medications as part of its causation analysis.
The DALA magistrate found that "none of the medical providers [Khramova] saw recommended any form of treatment that she refused, except for continuing [to take] antidepressant medications that made her feel suicidal . . . which is a valid reason to stop taking them." CRAB adopted DALA's findings on this issue.
CRAB adopted the DALA magistrate's finding that Khramova reasonably discontinued taking antidepressant medications after she began experiencing suicidal ideation. Substantial evidence supports this finding, including testimony from Khramova, as well as numerous reports by her treating medical professionals. Moreover, unlike the findings in Retirement Bd. of Revere, 36 Mass. App. Ct. at 108 -- where the applicant could have corrected his disability through surgery -- here, there was no guarantee that taking further antidepressant medications would have alleviated Khramova's mental health conditions. See id. at 101-102.
Contrary to BRB's claims that Khramova's mental health issues were "easily treatable" with antidepressant medications, substantial evidence in the record supports CRAB's conclusion that Khramova remained disabled even after she resumed taking such medications. See Murphy, 463 Mass. at 345. In essence, BRB urges that we discredit Khramova's statements to her treating mental health professionals. Once again, we are without authority to conduct an independent de novo review of the facts or "substitute our judgment for that of CRAB" in relation to "credibility choices." Kalu, 90 Mass. App. Ct. at 507. See Murphy, supra at 344. We discern no basis for disturbing CRAB's amply supported medical causation findings and conclusions in support of Khramova's application. See Kalu, supra ("We set aside a decision by CRAB only where it is legally erroneous or unsupported by substantial evidence").
CRAB specifically found "[t]hat Khramova had not made any significant improvement in her condition as of the date of the DALA hearing in 2014," despite the fact that she resumed taking antidepressant medications in 2010.
Finally, BRB argues that there was insufficient evidence that Khramova's condition "matured" before her last day of work, because her medical evaluations postdated her final day of teaching. Per our decision in Vest v. Contributory Retirement Appeal Bd., 41 Mass. App. Ct. 191, 194 (1996), an ADR applicant "who has left government service without an established disability may not . . . claim [ADR] status on the basis of a subsequently matured disability." In Vest, we held that CRAB properly denied benefits to an ADR applicant who filed four years after retiring for nonmedical reasons, reasoning that his disability did not manifest while he was "regularly employed in the performance of his duties." Id. at 192-194.
Conversely, in this case, CRAB agreed with the findings of the DALA magistrate that Khramova's disability manifested while she was "performing her teaching duties" in the fall of 2008. CRAB, as did the DALA magistrate, properly based its conclusion on Khramova's testimony about her teaching experiences in the fall of 2008, in addition to reports from two medical professionals who examined Khramova less than a month after she stopped teaching. Substantial evidence in the record also supports CRAB's conclusion that there was "near unanimity" among the medical professionals who evaluated Khramova that she was permanently disabled, and unanimity that her work caused her disability. Given the substantial evidence supporting DALA's findings adopted by CRAB, the Superior Court judge correctly affirmed CRAB's conclusion that Khramova's condition "matured" before her last day of work. See Murphy, 463 Mass. at 344.
Khramova testified that she vomited before going to work, and had panic attacks during school days. Khramova did not return to work after the holiday break. Khramova's primary care physician diagnosed her with depression, anxiety, panic attacks, and insomnia on December 31, 2008, and a mental health professional diagnosed her with a major depressive disorder and panic disorder on January 7, 2009.
Only two medical professionals who examined Khramova did not opine that her disability was permanent. One member of the medical panel who examined Khramova in 2010 opined that she was "undertreated" and that her conditions could subside with the passage of time. An impartial medical examiner who examined Khramova in the summer of 2009 concluded that Khramova could potentially recover because the "natural course of depression can be up to eighteen months," and eighteen months had not yet passed since Khramova developed her depression.
Conclusion. For the reasons stated above, we affirm the order of the Superior Court.
To the extent that we do not address the defendant's other contentions, "they 'have not been overlooked. We find nothing in them that requires discussion.'" Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgment affirmed.
By the Court (Rubin, Milkey & McDonough, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 11, 2019.