Opinion
14-P-420
08-19-2015
JOSEPH F. DRISCOLL 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 plaintiff, Joseph F. Driscoll, appeals from a Superior Court judgment affirming the Contributory Retirement Appeal Board's (CRAB) decision. CRAB's decision affirmed a Division of Administrative Law Appeals (DALA) administrative magistrate's decision upholding the determination that Driscoll was not entitled to receive accidental disability retirement benefits. We affirm.
Discussion. In 2003, Driscoll, then employed by the town of Framingham (town) highway department, was injured at work when he jumped into a garbage truck. An independent medical examiner (IME) opined that he had a soft-tissue injury consistent with a back strain. After treatment, Driscoll improved and was deemed able to return to work. In late 2003, the town offered Driscoll light duty work. Driscoll, claiming total disability, refused the offer. The town subsequently terminated Driscoll's employment.
Over the next several years Driscoll was essentially unemployed as he consulted numerous physicians. He did some work during 2006-2008. In 2007, Driscoll, claiming that he was totally disabled as a result of his 2003 industrial injury, filed for accidental disability retirement benefits. In 2008, while working for a private contractor, he sustained an additional back injury. In April, 2008, a three-member regional medical panel (medical panel) convened and determined unanimously that Driscoll was totally disabled as a result of the 2008 injury, but that his disability had no relationship to the 2003 work injury. In 2009, a second medical panel was convened, rendering a split decision. All three of the doctors found that Driscoll was permanently disabled; two of them found causation, as to which the third doctor disagreed. Of the two doctors in the majority, one opined that Driscoll was "permanently disabled as a result of the combination of his accidents as described, but predominantly as a result of the [2008 accident]." The other doctor concluded that, "although [Driscoll's] disability is predominantly due to the [2008 injury], in my opinion, . . . [the 2003] injury certainly cannot be ruled out as a significant factor in his inability to perform his former occupation." The panel presented its determination to the town's retirement board (retirement board), which denied Driscoll's application. The matter went to a DALA administrative magistrate, who made various findings and remanded the matter to the retirement board, requesting that the medical panel reconsider its recommendation and consider additional evidence, including Driscoll's return to work during the time period of 2006 to 2008, his job description (in order to determine whether he was unable to perform the essential duties of his job when he stopped working in 2003), and his medical documents. In 2011, the medical panel reconvened and issued a new report and certificate, this time concluding that Driscoll was not disabled, there was no reason he could not return to full duty employment, and he had only been temporarily unable to complete his job duties in 2003 but would have been able to perform the temporary light duty the town offered him. Based on these findings, the retirement board denied the application.
Eventually, the reviewing board of the Department of Industrial Accidents concluded that Driscoll was entitled to temporary disability benefits from the date of his 2003 industrial injury through April 1, 2004. We have concurrently affirmed this decision in a separate appeal. See Driscoll's Case, No. 14-P-776, Memorandum and Order Pursuant to Rule 1:28, issued this day.
The matter was sent to a second DALA administrative magistrate (second magistrate), who made new findings and affirmed the denial of Driscoll's application; CRAB then summarily affirmed. Driscoll appealed, and a Superior Court judge affirmed CRAB's decision, generally concluding that CRAB's decision, which explicitly incorporated the second magistrate's findings and decision, was based on a correct application of law, supported by substantial evidence, and entitled to deference.
In reviewing CRAB's decision, "[w]e 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) (citations omitted). We defer to the agency on questions of fact and reasonable inferences drawn therefrom. See Police Dept. of Boston v. Kavaleski, 463 Mass. 680, 689 (2012). Lastly, "[i]t is not for this court 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). Here, this deferential standard of review requires us to uphold the Superior Court's affirmation of CRAB's decision unless CRAB's decision violates constitutional provisions; exceeds the statutory authority or jurisdiction of the agency; or is based upon an error of law, made upon unlawful procedure, unsupported by substantial evidence, unwarranted by the facts found by the court on the record, or arbitrary and capricious. See G. L. c. 30A, § 14(7); Rivas v. Chelsea Hous. Authy., 464 Mass. 329, 334 (2013). Driscoll bears the burden of showing that CRAB's decision is invalid. See Merisme v. Board of Appeals on Motor Vehicle Liab. Policies & Bonds, 27 Mass. App. Ct. 470, 474 (1989).
To qualify for accidental disability retirement benefits, a regional medical panel must examine the applicant and
"issue a certificate as to (1) the applicant's incapacity for further duty, (2) the likelihood that the incapacity is permanent, and (3) 'whether or not the disability is such as might be the natural and proximate result of the accident . . . undergone on account of which such retirement is claimed.'"Malden Retirement Bd. v. Contributory Retirement Appeal Bd., 1 Mass. App. Ct. 420, 423 (1973), quoting from G. L. c. 32, § 6(3)(a). Driscoll did not prove his entitlement to the benefits. The 2011 medical panel determined that Driscoll was "not physically incapable of performing the essential duties of his job as described in the current job description." This makes clear that Driscoll was not "permanently unable to perform the essential duties of the job," as is required to qualify for the benefits. Murphy v. Contributory Retirement Appeal Bd., 463 Mass. at 345.
General Laws c. 32, § 7(1), is read in conjunction with § 6(3)(a) to define the procedure for accidental disability retirement applications.
Driscoll also argues that the medical panel applied an erroneous legal standard in its determination. We agree with the Superior Court judge's observation that it was, in fact, Driscoll who argued for application of the incorrect standard, in reliance on Quincy Retirement Bd. v. Contributory Retirement Appeal Bd., 340 Mass. 56, 60 (1959). That standard was modified by statute in 1996, see St. 1996, c. 306, § 14. See also Foresta v. Contributory Retirement Appeal Bd., 453 Mass. 669, 679-680 (2009) (under revised statute, employer has leeway to modify job responsibilities in order to accommodate physical limitations of injured employee). Similarly, we agree with the judge that Noone v. Contributory Retirement Appeal Bd., 34 Mass. App. Ct. 756 (1993), cited by Driscoll, is inapt, because the 2011 medical panel here considered the extent of his disability, not the question of causation.
Driscoll argues that CRAB's decision was based solely on the 2011 report of the medical panel and was not supported by substantial evidence. We disagree and conclude that there was substantial evidence; "such evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 344. Lisbon v. Contributory Retirement Appeal Bd., 41 Mass. App. Ct. 246, 257 (1996). CRAB's decision incorporated the second magistrate's decision by reference, adopted his findings of fact, and affirmed for the same reasons. The supporting evidence included a 2007 report from the IME stating that Driscoll was "not totally disabled" and could "regain full employment"; a 2003 report by Dr. Lawrence Shields stating that Driscoll had a "temporary partial disability"; and Driscoll's work history indicating that he worked at different times between 2006 and 2008.
Finally, Driscoll argues that CRAB and the Superior Court erred by not considering several injuries he sustained prior to 2003. We agree with the Superior Court judge's affirmance of CRAB's decision here, deferring to its judgment that to determine whether Driscoll could perform the essential duties of his job in 2003, the medical panel did not need to consider those past injuries, and, additionally, the panel found no reason why Driscoll could not return to full duty employment in 2011.
Driscoll's final argument, that his incapacity arose from specific events at work and that he is permanently disabled and entitled to the benefits, asks us to overstep our authority by essentially reviewing the case de novo and substituting our judgment for that of CRAB. See Retirement Bd. of Salem v. Contributory Retirement Appeal Bd., 453 Mass. 286, 289 (2009).
Judgment affirmed.
By the Court (Katzmann, Meade & Rubin, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: August 19, 2015.