Opinion
1784CV02481D
01-03-2019
Victor MORALES v. CONTRIBUTORY RETIREMENT APPEAL BOARD et al.[1]
MEMORANDUM AND ORDER ON CROSS MOTIONS FOR JUDGMENT ON THE PLEADINGS
Douglas H. Wilkins, Justice of the Superior Court
This appeal under G.L.c. 30A, § 14 is before me on cross motions by plaintiff Paul Morales ("Morales") and defendants, Contributory Retirement Appeal Board ("CRAB") and Lawrence Retirement Board ("LRB") (collectively, "Boards") for judgment on the pleadings. After LRB denied Morales’s application for disability retirement benefits, the Division of Administrative Law Appeals ("DALA") reversed, finding that the injury occurred while Morales was on duty. The Contributory Retirement Appeal Board ("CRAB") reversed, based upon its own assessment of the conflicting evidence. Mr. Morales timely appealed CRAB’s final decision to this Court.
After hearing on December 14, 2017, Morales’s motion for judgment on the pleadings is ALLOWED, and the Boards’ cross motions are DENIED .
BACKGROUND
CRAB’s decision, dated July 7, 2017 ("CRAB Decision") found the following facts: Detective Victor Morales was hired as a police officer on November 5, 1987 by the Lawrence Police Department ("LPD"). On the morning of September 27, 2002, at about 8:50 a.m., Detective Morales slipped and fell, injuring his shoulder, while entering the police station.
Here, CRAB’s findings deviate from the prior findings of the Administrative Law Judge who heard the evidence during an evidentiary hearing at the Division of Administrative Law Appeals ("DALA"). CRAB found the following. At some point after a new chief of police arrived in 1995 or 1996, some detectives’ work hours were shifted an hour earlier to provide better coverage and overlap with the uniformed officers’ night shifts. At some point Morales’ regular hours were also shifted from 9:00 to 5:00 p.m. to 8:00 to 4:00 p.m. Morales was actively involved in investigating the murder of a teenager in the Torres family and had frequent conversations with the boy’s father, Mr. Torres. "We cannot, however, agree that there is substantial evidence to support a finding that Morales was engaged in the specific work duty of interviewing a homicide victim’s father on the morning of September 27, 2002 ... We are also skeptical of the ability of each of these officers to recall, in 2012 and 2015, Morales’ assigned work hours for the specific date of September 27, 2002."
CRAB adopted the following DALA findings regarding subsequent events. At around noon on September 27, 2002, Detective Morales went to the emergency room due to the pain in his shoulder from the morning’s accident. He was examined by Doctor James Smith and diagnosed with a potential rotator cuff tear in his left shoulder.
After the accident, Detective Morales continued to work as a detective in the LPD for eight years. He had two surgeries to address shoulder pain.
On August 31, 2010, Detective Morales ceased working as a police officer because of a recurring pain associated with his shoulder injury. His injury had limited his range of motion in his left arm and caused him significant pain if he attempted to move his arm to the limit of his shoulder’s mobility. As a consequence, he could not perform the duties of a police officer any longer.
On October 12, 2011, Chief John Romero submitted an application to involuntarily retire Detective Morales for superannuation. The LRB ruled in favor of Chief Romero, involuntarily retiring Detective Morales for superannuation effective December 29, 2011, while leaving the decision to file for accidental disability retirement still open to Detective Morales. In considering whether involuntary retirement would prejudice Morales’s rights, the LRB set forth its "view of the statute ... that Chief Romero has the right to seek Morales’ involuntary retirement, and since he qualifies for such a retirement and is not in any way prejudiced or precluded from seeking an accidental disability retirement, the Board has no basis to take any action other than to grant Chief Romero’s Involuntary Retirement Application ..." A.R. 101-02.
On January 4, 2012, Detective Morales filed an application for accidental disability retirement, claiming that the injury to his shoulder had made him unable to perform the duties of a detective or police officer. In the application, he described the injury as occurring "during the day shift" and stated that "while running up [a] flight of stairs, [he] lost footing, grabbed railing with left hand to break fall, resulting in hyper extending left shoulder, felt pop, burn." The application was signed under the penalties of perjury.
In June 2012, Detective Morales was examined separately by a panel of orthopedic surgeons composed of Victor Conforti, M.D., Ronald Rosenthal, M.D. and George Hazel, M.D. In their reports, the medical panel determined that Detective Morales’s injury to his left shoulder was disabling and likely to be permanent, and might be the natural and proximate result of the personal injury he sustained in 2002. The doctors concluded that the injury resulted in limited mobility at the shoulder joint and pain at the end ranges of motion of his left shoulder. On August 29, 2012, the LRB voted to award accidental disability retirement to Detective Morales. On September 28, 2012, PERAC remanded the matter to the Board, because it appeared that Detective Morales was not in the performance of his duties as he was not on duty when the injury occurred, according to the detective’s "9:00 a.m./5:00 p.m." description of his hours given in his injury report.
On October 31, 2012, the LRB conducted a hearing. The Board considered affidavits from Captain Michael Molchan and Police Chief John Romero in which they declared that Detective Morales worked an 8-4 shift rather than a 9-5 shift. On November 28, 2012, the Board again approved Detective Morales’s accidental disability retirement application. On January 10, 2013, PERAC again remanded Detective Morales’s application for accidental disability retirement.
On January 29, 2013, the LRB voted to deny accidental disability retirement due to PERAC’s remands and Detective Morales’s failure to produce documentary evidence of his work shift.
The record contains a letter dated February 13, 2013, by which Mr. Morales appealed the LRB’s decision. The findings below stated that the appeal was timely filed on February 22, 2013.
The matter was referred for evidentiary hearing before a DALA magistrate. DALA issued its decision on October 23, 2015 ("DALA Decision"). The DALA Decision found that Morales was "traveling from one job duty as a Detective in the Lawrence Police Department to another" when the injury occurred and reversed LRB’s denial Mr. Morales’s application for disability retirement benefits. CRAB adopted findings 1, 2 and 6-16 of the DALA decision, but declined to adopt findings 3-5 of the DALA Decision as its own. CRAB "conclude[d] that Morales has not proven by a preponderance of the evidence that he was engaged in a work activity at the time he incurred the injury that led to his disability." It found that the injury did not occur while Morales was on duty, added a discussion of the issues, and affirmed the LRB decision on July 7, 2017. CRAB stated that the stipends Mr. Morales received under the CBA for Student Activities Advisor failed to qualify as compensation for "additional services" under G.L.c. 32, § 1, because the service was "not adequately" or "not sufficiently set forth in his annual contract, as required by 807 CMR 6.02(1)." AR 262, 267, 271.
DISCUSSION
I.
This court reviews CRAB’s decision under the standard set out in G.L.c. 30A, § 14(7). See Megiel-Rollo v. Contributory Ret. Appeal Bd., 81 Mass.App.Ct. 317, 320 (2012). The Court applies "a deferential standard and ... will reverse only if [CRAB’s] decision was based on an erroneous interpretation of law or is unsupported by substantial evidence." Id., quoting Foresta v. Contributory Ret. Appeal Bd., 453 Mass. at 676. It may reverse, remand, or modify a CRAB decision if "the substantial rights of any party may have been prejudiced" by such an error in the decision. G.L.c. 30A, § 14(7). The moving party bears the burden of demonstrating the invalidity of the agency’s decision. Merisme v. Bd. of Appeals on Motor Vehicle Liab. Policies & Bonds, 27 Mass.App.Ct. 470, 474 (1989).
Where, as here, CRAB rejects the findings of the DALA magistrate, additional considerations apply. "First, all subsidiary findings made by a hearings officer should be entitled to some deference; second, when those findings rest on the hearing officer’s resolution of credibility questions (i.e. that a fact is true because a witness testified to it and that witness is believable), they should be entitled to substantial deference; and finally, whenever the appeal board rejects subsidiary findings made by a hearings officer, its decision should, consistent with the requirements of G.L.c. 30A, Section 11(8), contain a considered articulation of the reasons underlying that rejection." Vinal v. CRAB, 13 Mass.App. 85, 101-02 (1981) (emphasis added). See Morris v. Board of Registration in Medicine, 405 Mass. 103, 109-10 (adopting Vinal and reversing Board’s reversal of hearing officer’s findings of fact), cert. denied, 493 U.S. 977 (1989). When the courts review CRAB’s decision, they "recognize that evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Board’s than when he has reached the same conclusion." Vinal, 13 Mass.App.Ct. at 99, 100 quoting Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951). Nothing in Vinal suggests that CRAB is to apply a unique definition of "substantial evidence," as it has confusingly done in this case. See below.
To the extent CRAB’s decision rests on a question of law, the court reviews it de novo. Megiel-Rollo, 81 Mass.App.Ct. at 320 (and cases cited). On matters of fact, the court may not substitute its judgment for that of the agency, S. Worcester County Reg. Vocational Sch. v. Labor Relations Comm’n, 386 Mass. 414, 420-21 (1982), but must uphold those factual findings unless they are unsupported by substantial evidence, giving weight to the agency’s specialized knowledge and discretionary authority, and without drawing different inferences from the facts. Megiel-Rollo, 81 Mass.App.Ct. at 320-21.
II
Under these tests, the court concludes that CRAB committed an error of law, applied the wrong level of deference to the DALA magistrate’s findings of fact, and failed to make sufficient findings for the court to complete its task of judicial review.
Error of Law
CRAB committed a clear error of law in stating (Decision at 12; A.R. at 286): "We cannot, however, agree that there is substantial evidence to support a finding that Morales was engaged in the specific work duty of interviewing a homicide victim’s father on the morning of September 27, 2002." This was not a passing reference, as CRAB stated again (Decision at 16-17; A.R. 290-91): "we agree with PERAC that there is not substantial evidence to support a finding that Morales was conducting a specific witness interview at the precise hour just before his injury."
The phrase "substantial evidence" is a term of art, as discussed above. There was direct, sworn testimony that the plaintiff was engaged in interviewing a homicide victim’s father before going to the police station. CRAB acknowledged that the testimony was supported by "the significant degree of corroboration the witnesses provided of the functioning of the Lawrence Police Department’s detective Unit." Decision at 11; A.R. 214. A reasonable person might accept that sworn testimony as true, particularly upon impartial consideration of the other evidence discussed below. To say otherwise is an error of law, which misapplies the definition of "substantial evidence." Indeed, CRAB’s review is not a "substantial evidence" review, unlike that of PERAC under G.L.c. 32, § 21(1)(d). CRAB is a fact finder, albeit one that must give deference to the DALA magistrate’s findings of fact.
Indeed, the courts have affirmed many decisions (doubtless including CRAB decisions) under the substantial evidence test, where there were inconsistencies in the testimony of witnesses and lack of documentary proof. If the shoe were on the other foot, CRAB would not accept judicial review that applied the definition of "substantial evidence" that it has applied here.
Given that CRAB goes on to engage in credibility determinations (while denying that it was doing so), it is possible that CRAB simply chose the wrong words here, but that is not for the court to say. On the other hand, CRAB says that it did "not disturb" the DALA’s assessment of witness credibility. Yet, it appears to have done just that, by rejecting the witnesses’ testimony based upon contemporaneous written records.
The case law requires CRAB to give "substantial deference" to the magistrate’s decision. Vinal, 13 Mass. at 97, 100. Perhaps CRAB has confused this test with the separate, "substantial evidence" test that governs judicial review.
The court must accept CRAB’s decision as written. A reviewing forum’s credibility determination does not eliminate the existence of "substantial evidence" before the fact finder. Saying otherwise was an error of law.
Wrong Level of Deference
If CRAB intended to use "substantial evidence" in the correct sense, then it failed to conduct the searching review it must conduct before overturning a DALA magistrate’s fact findings. It mischaracterized the extent of its own assessment of credibility in rejecting the DALA magistrate’s first-hand assessment of live witnesses.
CRAB nominally recognized its "obligation to give substantial deference to the DALA magistrate’s findings of fact based on his assessment of the credibility of live witnesses" (Decision at 14; A.R. 288). It claims that it did not "disturb" the magistrate’s "assessment of witness "credibility." Yet, without granting "substantial deference," it rejected findings 3-5, which turned on precisely such a credibility determination. Both in words and in fact, it applied only ordinary deference even though, as shown below, findings 3-5 did, indeed, reflect credibility determinations. In at least three ways, DALA failed actually to apply the higher level of deference owed to findings of credibility under Vinal, 13 Mass.App.Ct. at 99-101.
First, CRAB adopted an unlawfully narrow definition of witness credibility. It apparently viewed its duty to defer to the DALA magistrate’s assessment of credibility as limited to assessment of "honesty" or "sincerity," while ignoring that assessing credibility also includes the question whether witnesses are reliable and accurate. If CRAB had considered reliability and accuracy as elements of credibility, it could not have said that it accepted DALA’s credibility findings. The magistrate found the witnesses not only honest, but also reliable and accurate. CRAB’s lip service to the DALA Magistrate’s findings and nominal acceptance of his credibility determinations do not alter the reality that CRAB in fact altered credibility determinations, without acknowledging its duty to give substantial deference to the magistrate’s findings of witness reliability and accuracy.
The point may be obvious, but if further authority is needed for the proposition that credibility includes both honesty and accuracy, the court points to basic discussions of credibility in various contexts. See Commonwealth v. Crawford, 410 Mass. 75, 79 (1991) (In evaluating the veracity of informants for search warrant purposes, "the veracity test may be satisfied by demonstrating the credibility of the informant. That credibility, in turn, may be established by showing that information provided in the past by this informant has proved to be accurate)."
Second, CRAB in fact did question the honesty or sincerity of the live witnesses. Important portions of CRAB’s decision appear (not so subtly) to insinuate that the witnesses fabricated their testimony. CRAB casts such aspersions when, for instance, referring to a now-lost incident report produced on November 13, 2012 (Decision at 5 A.R. 279) or comparing Morales’ testimony on November 20, 2012 to his lack of memory "three weeks earlier" (Decision at 6: A.R. 280). In this, it echoes PERAC’s adversarial, even prosecutorial, tone (A.R. 251-53, 256-57), instead of engaging in the kind of detached analysis required to conduct a deferential review. Even on CRAB’s unduly limited formulation of "credibility" as encompassing only "honesty," it failed to acknowledge that, in fact, it was challenging witness credibility.
That failure necessarily led to a Vinal violation. Taking CRAB at its word, since it thought that it was not questioning "credibility," it cannot have given the requisite substantial deference to findings 3-5 under Vinal .
Third, whatever general statements it made about deference, CRAB failed to grant deference in fact. It did not engage in the kind of even-handed analysis, with an openness to possible inferences supporting the DALA Magistrate’s determinations, which is essential to any substantially deferential review. It failed to acknowledge facts or inferences favorable to Morales and, instead, focused upon unfavorable portions taken out of context. See Morris, 405 Mass. at 411-12 (failure to consider facts supporting the plaintiff’s account). It ignored possible benign explanations.
Only by reading the full record in context can one determine what is and is not inconsistent in Morales’ evidence. While there are certainly some discrepancies in Morales’ evidence, he consistently stated in his initial application and in every subsequent statement, including live testimony that the injury occurred during "regular tour [of] duty" and responded as follows to the printed question:
Did the injury occur during a regular tour of duty? Yes.(A.R. 74). He also consistently reported the time of injury as 8:50 a.m. and stated that he was performing the duty of "report[ing] for duty for regular tour of duty." Indeed, Morales’s application reported that the injury occurred "during routine shift," [emphasis added] which is consistent with his current claim— a consistency which CRAB’s Decision at 3-4, A.R. 277-78, fails to acknowledge. Simply put, the fact that a shift started at 9:00 a.m. does not negate the possibility that a detective "perform[ed] his duties" before that time.
Morales never altered his statements that he was on duty, that he was reporting for work and that the injury occurred at 8:50 p.m. There is no contemporaneous evidence that anyone questioned Morales’ statements, or viewed them as in any way inconsistent with the facts or with each other. On the contrary, the Supervisor’s Investigative Report of Injury, dated September 27, 2002 recorded 9 to 5 in the box labelled "shift working when injured," [emphasis added] which evidently confirms that Morales was in fact "working when" the accident occurred. When, in 2011, Chief Romero applied to retire Morales against his will, he believed that Morales was injured in the course of performing his duties and therefore would remain eligible for disability retirement. So did the LRB. Any common sense and reasonable interpretation of the application would lead to the inference that the LPD considered "report[ing] for work" to be the "performance of his duties." Read as a whole, the initial application represented exactly what Morales’ witnesses said under oath: that Morales was working (i.e., performing his duties) at 8:50 a.m. on September 27, 2002. At the time, for whatever reason, the people with personal knowledge understood that Morales was working at 8:50 on the day of the accident. That is the entire crux of their testimony from 2012 to the present. Fairly read, then, there is no "contradiction by an existing, contemporaneous report," as CRAB contended. Decision at 18, A.R. 290.
Under any deferential standard of review, let alone a standard of substantial deference, CRAB should have at least have acknowledged that the facts and inferences from the initial reports can be taken to support the gist of Morales’ claim. A deferential review would at least have considered the possibility that Morales and his witnesses were accurate about the gist of their testimony that he was on duty when the accident occurred, whether or not they were honestly mistaken about the details. Instead, CRAB considered only one possibility: that the failure of decades-old memories about the details entirely negated the most important aspect of original report— that Morales was performing his duties when injured. Fixating on a conclusion of "contradiction" when alternative, favorable conclusions are possible is the antithesis of deference.
Not until a decade later, when PERAC sent its remand letter of September 28, 2012, did anyone question the account of the facts given by Morales, Chief Romero and the investigating supervisor. At that time, PERAC essentially required Morales and the witnesses to recall or reconstruct what happened ten years earlier, with predictable difficulties that the agencies now hold against Morales. Nothing in its form asked for such information or even had a place to write what happened before "the time ... illness/injury occurred." To hold the absence of such information on the printed injury form against Morales effectively required him and his superiors, somehow, to know the Namvar/Richard rule or at least foresee that PERAC and CRAB would later require that information.
As a fair reading of the documents in this case shows, however, heavy administrative reliance upon a printed form may be ill-adapted to the realities of police detective work. Not only is the form deficient for failure to request essential information under Namvar/Richard, but it also (1) asks for shift hours without consideration for the fact that a detective’s performance of duties may regularly occur outside strictly defined shift hours, and (2) apparently does not account for the possibility that timely "performance of his dut[y]" to "report for duty" may require appearing shortly before the exact time when the shift nominally commences. DALA’s objectivity in reading forms as an ordinary employee or employer might read them, without superimposing the superior legal knowledge and attendant assumptions characteristic of an expert agency, may well be one reason why the Legislature gave the initial fact-finding role to DALA.
Even going beyond the gist of the initial reports and the live testimony, CRAB did not grant the required deference. For one thing, assuming (contrary to the above discussion) that there was an irreconcilable inconsistency on the report of injury form, there are two ways to resolve it. So far as appears, CRAB considered only one. There is no obvious reason to discredit the statement that Morales was "on duty" at 8:50 a.m. and accept the statement that his shift was only from 9 to 5. CRAB could have done the opposite, or adopted a view that would avoid an inconsistency altogether. The choice between the two plausible narratives turned upon precisely what CRAB disclaimed: an evaluation of witness credibility.
For another thing, there is absolutely no affirmative evidence to contradict Detective Morales’ testimony that he was working off-site before going to the police station. Cf New Boston Garden Corp. v. Bd. Assessors of Boston, 383 Mass. 456, 466 (1981) (The lack of evidence proving one proposition is not substantial evidence of the opposite proposition). As just noted, the initial report of injury is consistent with that testimony. It is also consistent with the basic nature of a detective’s job. Although CRAB acknowledges that job feature on page 11 of its Decision (where it purports to accept the DALA magistrate’s credibility determinations), for some reason, it fails to account for that fact when evaluating the possible meanings of the initial reports of injury.
A full acknowledgement of "the factual allegations that point to Morales being in the performance of his duties at 8:50 a.m. on Friday, September 27, 2002" (Decision at 2; A.R. 276) would include recognizing that a detective’s job necessarily includes a great deal of work done off-site and out of established shift timelines. In Morales’ job, "reporting" for work does not necessarily negate the performance of work before arriving at the station to report for duty. So viewed, the contemporaneous statement that Morales was "reporting for work" is not inconsistent with his testimony. The DALA magistrate’s findings acknowledge this reading of the initial application. CRAB’s approach to the contemporaneous documents— at best uncharitable and at worst one-sided— led to a failure to grant "substantial deference" to DALA’s findings regarding witness credibility, which are more consistent with contemporaneous accounts than CRAB acknowledged.
In addition, it is unclear why CRAB counts the supposed November 13, 2012 report against Morales, when the reference came not from Morales, but from the LRB. Morales testified (Tr. at 94; A.R. 385) that he had no idea who presented that document to the LRB, but it wasn’t him. Yet in using its interpretation of the documents to impeach Morales and his witnesses, CRAB made credibility determinations that were not inevitable and contravened those of the DALA magistrate. It neither acknowledged this, nor gave substantial deference.
CRAB made no secret about its view that the documents lacked corroboration for the essentials of Morales’ claim. It accepted PERAC’s assertion that "all the factual allegations that point to Morales being in the performance of his duties at 8:50 a.m. on Friday, September 27, 2002 rely on memories by Morales and other officers of events occurring a decade or more earlier." Decision at 2; A.R. at 276. As the preceding discussion points out, however, that is not true. Nor is it a fair reading of DALA’s findings. There were accrediting circumstances, including the very nature of police detective work, a scope of duties that includes reporting for duty, and possible interpretations of the contemporaneous documents that were far more consistent with Morales’ witnesses’ account than CRAB contended.
Even without a requirement to give "substantial deference" to CRAB’s factual findings, an agency may not rely upon speculation, or fail to confront the weaknesses in the evidence. Herridge v. Board of Registration, 420 Mass. 154, 164-65 (1995). Given Vinal, it is particularly clear that CRAB failed to grant the necessary deference here.
Inadequate Findings
Likewise, CRAB’s explanation for rejecting the findings of reliability and accuracy, falls short of what is necessary to show that CRAB gave deference to those findings. While the findings are sufficient to determine that CRAB did not follow Vinal, they do not show deference to findings of fact that turn upon "credibility." Here, as in Vinal, 13 Mass.App.Ct. at 101, CRAB has failed to provide adequate findings to permit the court to determine that CRAB’s decision complies with the agency’s obligation under G.L.c. 30A, § 11(8), to provide a "considered articulation of the reasons" for rejecting DALA’s findings of fact under the correct level of deference.
In the absence of complete findings, the court lacks authority to order final relief granting or denying disability retirement. Nor is it necessary to decide whether the record permits CRAB to reaffirm its original decision, after making additional findings. What is clear is that CRAB must grant substantial deference to DALA findings 3-5 and must at least consider the possible inferences and conclusions discussed above, which (1) acknowledge basic consistencies between Morales’ witnesses’ testimony and the documentation, and (2) harmonize the documentary evidence (on which CRAB placed near total reliance) with the testimonial evidence. A review of a DALA Magistrate’s fact findings that fails even to address these matters is not deferential at all, within the meaning of Vinal .
III.
Finally, PERAC’s citation to Namvar v. Contributory Retirement Appeal Bd., 422 Mass. 1004, 1005 (1996), and Richard v. Retirement Board of Worcester, 431 Mass. 163 (2000) misunderstands the nature of the issue to be decided. Those cases construed "performance of his duties" to exclude disability retirement for injury during travel to or from a place of employment. "If the employee had been going from one place at which she had had an employment obligation to another such place, if she had had an employment duty at the cafeteria (as well as at her office), or if she had been performing a duty of her employment while walking to her office, the result would be different." Namvar, 422 Mass. at 1005; Richard, 431 Mass. at 165. The undisputed evidence here showed that Morales fell on the police station’s property while returning to the station to report for his regular tour of duty. He was not travelling; he had arrived. To the extent that CRAB cited Namvar and embraced PERAC’s argument about the lack of substantial evidence, it may have repeated PERAC’s erroneous reliance on these cases, which it should correct on remand.
Doing so will require evaluating the "performance of ... duties" not just the time of Morales’ shift. The statutory test is not "within the hours of an assigned shift." It is: "while in the performance of his duties ..." G.L.c. 32, § 7(1). The statute views an injury as compensable if it occurs because of, and during, performance of the detective’s duties regardless of the time of performance. It may be administratively convenient to deny a claim simply based upon the reported shift hours, but that is not what the statute says. On remand, therefore, CRAB’s focus cannot be simply upon whether Morales’ injury occurred within the hours of his shift.
Reporting for duty, while already on premises, would seem to qualify as "performance of his duties," whether or not Morales was returning from a witness interview. The agencies have cited no authority for the proposition that a detective cannot be performing his duties outside the hours of his regular tour of duty, let alone ten minutes before the shift began. CRAB’s search for inconsistencies in Morales’ evidence has not only misdirected it away from what is consistent in the initial reports, but has also kept it from addressing the issue of whether reporting for duty after arriving at the police station, on the facts of this case, is enough to establish the necessary "performance of his duties."
None of the authorities cited by CRAB (Decision at 16, A.R. 290) addresses a circumstance where the employee was performing an aspect of his duties on premises. Nor do they undermine the obvious inference that reporting for duty is "performance of his duties" and whether reporting for duty, after arriving at the employer’s premises, falls outside that phrase if it occurs ten minutes before the beginning of an assigned shift— an interpretation that would give a counter-productive incentive not to report until the last minute. Since a police detective’s job calls for performance in numerous off-site locations, the act of reporting for duty at the station is not equivalent to returning to one’s office from a cafeteria. Compare Namvar v. Contributory Retirement Appeal Bd., 422 Mass. 1004, 1005 (1996) (rescript).
Drawing a natural, and perhaps inevitable, inference that "performance of [Morales’] duties" included reporting for duty— and accepting CRAB’s determination that Morales had already arrived at his workplace and was doing just that— the undisputed facts would appear to meet the "while in the performance of his duties" test. That is particularly so where the testimony (and common understanding) showed that the timing of detective work is dynamic, and detectives are always on call. Indeed, designating a particular hour as the beginning of a shift strongly implies that the employee must arrive at the premises before that hour, in order to report timely; that is, if arrival before the hour is required for timely report, the "performance of his duties" necessarily include arrival some minutes before the nominal commencement of the shift. The police department could have prohibited arrival before the beginning of the shift, but there is no evidence that it did so and every reason to believe that it did not, because it would logically want its officers to report in timely fashion. On remand, CRAB should address all these considerations, using the statutory test, rather than a single focus upon the hours of the shift.
ORDER
Plaintiff/Appellant’s Motion for Judgment on the Pleadings (Docket # 13) is ALLOWED . Defendant’s Cross Motion for Judgment on the Pleadings (Docket # 14) is DENIED . Final Judgment shall enter vacating the decision of the Contributory Retirement Appeal Board and remanding the matter for further proceedings consistent with this Memorandum of Decision.