Burnham v. Contributory Retirement Appeal Board

Massachusetts Appeals Court

Burnham v. Contributory Retirement Appeal Board

448 N.E.2d 1133, 15 Mass. App. Ct. 1007, 1983 Mass. App. LEXIS 1328

DecidedMay 5, 1983

StatusPublished

This text of 448 N.E.2d 1133 (Burnham v. Contributory Retirement Appeal Board) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Burnham v. Contributory Retirement Appeal Board, 448 N.E.2d 1133, 15 Mass. App. Ct. 1007, 1983 Mass. App. LEXIS 1328 (Mass. Ct. App. 1983).

Pincite

Opinion

Burnham, employed as a laborer and heavy motor equipment operator by the city of Gloucester, applied to the Gloucester retirement board (GRB) for accidental disability retirement under G. L. c. 32, § 7(1), because of injury in the course of duty to his right elbow. A medical panel, appointed by GRB after objections to a previous panel, considered Burnham’s reapplication and found and certified against it by a vote of two to one, answering no to the question whether the applicant was incapacitated for further duty. Upon review, the Contributory Retirement Appeal Board (CRAB) upheld GRB. Burn-ham sought judicial review under the State Administrative Procedure Act, G. L. c. 30A, § 14. The Superior Court entered judgment reversing CRAB and remanding the matter to GRB. The judgment cannot stand. As conceded at argument, the only alleged defect in the record that Burn-ham can point to is a statement by the dissenting member of the panel (Burnham’s nominee) referring to the possibility of corrective surgery, an impermissible consideration; but that in no way infects the majority’s certificate, explained in the panel report. Burnham did not sustain his burden of showing that the majority applied an erroneous standard, contrast Wakefield Contributory Retirement Bd. v. Contributory Retirement Appeal Bd., 352 Mass. 499, 502 (1967), and the judge had no proper basis for his belief that there was error of law in the action of the medical panel or insufficient evidence to support it. Correspondingly CRAB’s decision was correct. See Malden Retirement Bd. v. Contributory Retirement Ap[1008]*1008peal Bd., 1 Mass. App. Ct. 420, 424 (1973). The judgment will be reversed and a new judgment is to enter reinstating GRAB’S decision.

Vincent L. DiCianni, Assistant Attorney General, for Contributory Retirement Appeal Board. Bruce H. Tobey for Retirement Board of Gloucester. James E. Riley, Jr., for the plaintiff.

So ordered.

Free access — add to your briefcase to read the full text and ask questions with AI

Burnham, employed as a laborer and heavy motor equipment operator by the city of Gloucester, applied to the Gloucester retirement board (GRB) for accidental disability retirement under G. L. c. 32, § 7(1), because of injury in the course of duty to his right elbow. A medical panel, appointed by GRB after objections to a previous panel, considered Burnham’s reapplication and found and certified against it by a vote of two to one, answering no to the question whether the applicant was incapacitated for further duty. Upon review, the Contributory Retirement Appeal Board (CRAB) upheld GRB. Burn-ham sought judicial review under the State Administrative Procedure Act, G. L. c. 30A, § 14. The Superior Court entered judgment reversing CRAB and remanding the matter to GRB. The judgment cannot stand. As conceded at argument, the only alleged defect in the record that Burn-ham can point to is a statement by the dissenting member of the panel (Burnham’s nominee) referring to the possibility of corrective surgery, an impermissible consideration; but that in no way infects the majority’s certificate, explained in the panel report. Burnham did not sustain his burden of showing that the majority applied an erroneous standard, contrast Wakefield Contributory Retirement Bd. v. Contributory Retirement Appeal Bd., 352 Mass. 499, 502 (1967), and the judge had no proper basis for his belief that there was error of law in the action of the medical panel or insufficient evidence to support it. Correspondingly CRAB’s decision was correct. See Malden Retirement Bd. v. Contributory Retirement Ap[1008]*1008peal Bd., 1 Mass. App. Ct. 420, 424 (1973). The judgment will be reversed and a new judgment is to enter reinstating GRAB’S decision.

Vincent L. DiCianni, Assistant Attorney General, for Contributory Retirement Appeal Board. Bruce H. Tobey for Retirement Board of Gloucester. James E. Riley, Jr., for the plaintiff.

So ordered.

Cite This Page — Counsel Stack

Bluebook (online)

448 N.E.2d 1133, 15 Mass. App. Ct. 1007, 1983 Mass. App. LEXIS 1328, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burnham-v-contributory-retirement-appeal-board-massappct-1983.

Opinion

Related

Cite This Page — Counsel Stack