Hollup v. Worcester Retirement Board

• Court: Massachusetts Appeals Court
• Decided: August 25, 2023
• Docket: AC 21-P-707
• Status: Published

Opinion

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us

21-P-707 Appeals Court

ROBERT HOLLUP vs. WORCESTER RETIREMENT BOARD & another.1

No. 21-P-707.

Worcester. September 14, 2022. - August 25, 2023.

Present: Rubin, Henry, & Walsh, JJ.

Contributory Retirement Appeal Board. Retirement. Municipal Corporations, Retirement board. Division of Administrative Law Appeals. Public Employment, Accidental disability retirement. Administrative Law, Findings.

Civil action commenced in the Superior Court Department on January 15, 2020.

The case was heard by Shannon Frison, J., on motions for judgment on the pleadings.

Michael Sacco for Worcester Retirement Board. David R. Marks, Assistant Attorney General, for Contributory Retirement Appeal Board. Charles E. Berg for the plaintiff.

RUBIN, J. This case involves two important issues. First,

we address the circumstances in which it is permissible for the

1 Contributory Retirement Appeal Board. 2

Contributory Retirement Appeal Board (CRAB) to reverse factual

findings made by a magistrate of the Division of Administrative

Law Appeals (DALA) when CRAB reviews a decision made by that

magistrate after hearing and evaluating the credibility of the

testimony of live witnesses. Second, we address CRAB's reading

of Vest v. Contributory Retirement Appeal Bd., 41 Mass. App. Ct.

191 (1996), which it has construed to mean that an employee may

not receive disability retirement benefits unless the employee

establishes that he or she was permanently unable to perform the

essential duties of his or her position as of the last day the

employee actually performed those duties. We conclude that that

construction, which would eliminate the protection of disability

retirement for myriad workers who suffer sequelae of, or a

degenerative or progressive disease caused by, a work accident,

is in error.

Introduction. This case involves an application for

accidental disability retirement benefits brought by Robert

Hollup based on a psychiatric sequela to a closed-head injury he

suffered when he fell off the back of a garbage truck on

September 14, 2004. The instant application indicated that the

medical reason for the application was "depression caused by

head injury." A regional medical panel, defined by the statute

as a "three member independent medical panel," G. L. c. 32, § 1,

composed of three doctors, answered all three questions listed 3

on the Public Employee Retirement Administration Commission's

(PERAC) preprinted "Regional Medical Panel Certificate" in the

affirmative, thus finding that Hollup was "MENTALLY OR

PHYSICALLY INCAPABLE OF PERFORMING THE ESSENTIAL DUTIES OF HIS

OR HER JOB AS DESCRIBED IN THE CURRENT JOB DESCRIPTION," that

"SAID INCAPACITY [IS] LIKELY TO BE PERMANENT," and that "SAID

INCAPACITY [IS] SUCH AS MIGHT BE THE NATURAL AND PROXIMATE

RESULT OF THE PERSONAL INJURY SUSTAINED OR HAZARD UNDERGONE ON

ACCOUNT OF WHICH RETIREMENT IS CLAIMED,"2 i.e., his falling off

the garbage truck on which he worked. With respect to that

third question, relating to causation, the certificate correctly

stated:

"If the acceleration of a pre-existing condition or injury is as a result of an accident or hazard undergone, in the performance of the applicant's duties, causation would be established. However, if the disability is due to the natural progression of the pre-existing condition, or was not aggravated by the alleged injury sustained or hazard undergone, causation would not be established."

The narrative, written by one of the doctors on the regional

panel and concurred in by the other two, stated that

"given the fact that his condition seemed to worsen markedly following the head injury, we would say that he meets criteria for aggravation of a preexisting condition standard, and that therefore said incapacity is such as might be the natural and proximate result of the personal

2 The preprinted certificate states in a note, "When constructing your response to the question of causality (#3) in accidental disability narrative reports, your opinion must be stated in terms of medical possibility and not in terms of medical certainty." 4

injury sustained or hazard undergone on account of which retirement is claimed."

It further stated, "Our working diagnosis for [Hollup] is as

follows: 1. Major depressive disorder; 2. Neurocognitive

disorder due to traumatic brain injury; 3. Personality disorder

NOS."

Despite this, the Worcester retirement board (board) denied

Hollup's application.3 He timely appealed to CRAB and CRAB

assigned the appeal to DALA. A hearing was conducted by a DALA

magistrate, at which the magistrate not only considered the

myriad medical reports reflecting Hollup's treatment, but also

heard live testimony from Hollup. Having heard Hollup testify,

the DALA magistrate rejected the negative finding of a prior

workers' compensation magistrate with respect to Hollup's

credibility. The DALA magistrate concluded that Hollup had met

his burden of proving that he qualified for accidental

disability retirement benefits as a result of the September 14,

2004, head injury. As the regional medical panel did not lack

pertinent medical facts, apply erroneous standards, or engage in

3 Hollup previously brought another application for accidental disability retirement based on neurological consequences of the accident. The medical panel there, see Murphy v. Contributory Retirement Appeal Bd., 463 Mass. 333, 335 (2012), concluded that Hollup was not incapable of performing his essential duties by virtue of any neurological deficit. The doctors on that panel indicated that it was beyond the scope of their evaluation to comment on the question of "worsening psychiatric dysfunction" following the accident. 5

any procedural irregularities, the DALA magistrate weighed the

panel's collective opinion heavily, noting that it was

consistent with the opinions of six other doctors (Drs. Daniel

Kirsch, Eric Smith, Mark Cutler, Lalit Savla, Michael Braverman,

and Mikhail Vydrin).

On the board's appeal, CRAB purported to adopt with minor

modifications the DALA magistrate's seventy-one findings of fact

as its own. However, it disagreed with the magistrate's

findings as to medical causation. CRAB purported to find that

Hollup's psychiatric conditions were "continuous with his pre-

existing conditions and not altered by the head injury of

September 2004." As a second, independent ground for reversing

the DALA decision, CRAB concluded that "Hollup must establish

that he suffered from a matured and established psychiatric

disability at the time he was last in active performance of his

duties." In this, it purported to rely on Vest, 41 Mass. App.

Ct. at 194. Hollup appealed to the Superior Court, which

reversed the CRAB decision. See G. L. c. 30A, § 14. CRAB has

now appealed to us.

Discussion. 1. CRAB's reversal of the DALA magistrate's

findings of fact. The factual findings made by a DALA

administrative magistrate are not immune from review and even

reversal by CRAB. "Nonetheless, all subsidiary findings made by

the magistrate are entitled to 'some deference' by CRAB, and 6

those findings that are based on credibility determinations by

the magistrate are entitled to 'substantial deference.'" Murphy

v. Contributory Retirement Appeal Bd., 463 Mass. 333, 336

(2012), quoting Vinal v. Contributory Retirement Appeal Bd., 13

Mass. App. Ct. 85, 101 (1982). Where it rejects such findings,

CRAB must provide "a considered articulation of the reasons

underlying that rejection." Vinal, supra at 102. The deference

required in review of factual findings "will permit [CRAB] to

conduct a meaningful review of a [magistrate's] findings to

determine whether they are significantly against the weight of

the evidence, or . . . suspect in light of the 'consistency and

inherent probability of testimony'" (citation omitted). Id. at

101. The requirement of an explanation "will help ensure that

[CRAB] will carefully consider any decision to reject a

[magistrate's] findings and that it will provide a reviewing

court with an adequate explanation on which to determine whether

that rejection was warranted." Id. This test must be

considered against the fundamental rule rooted in due process

that a reviewing body ordinarily may not reverse a credibility

judgment made by the administrative or judicial officer who

actually heard the testimony of the witness and found him or her 7

to be credible.4 "[I]t is inappropriate to ask [an appellate

panel who has not heard the witness] to reverse a judge's

findings involving credibility, since he saw the witnesses and

we did not" (citation omitted). Commonwealth v. Day, 387 Mass.

915, 919 (1983). As we have explained, a determination of

credibility made by one who actually heard a witness "is close

to immune from reversal on appeal except on the most compelling

of showings." Johnston v. Johnston, 38 Mass. App. Ct. 531, 536

(1995).

CRAB articulated at great length its reasons for rejecting

the conclusion of the regional medical panel and the DALA

magistrate. That articulation, required by our case law, allows

us to examine CRAB's decision to reject the magistrate's

findings. In the end, we conclude that CRAB has provided no

adequate basis for rejecting those findings or the conclusion of

the magistrate that Hollup's depression was caused by an

exacerbation by his head injury "of his pre-existing Attention

Deficit Hyperactivity and mood disorders."

4 Cf. Fox v. Commissioner of Revenue, 51 Mass. App. Ct. 336, 343-344 (2001) (in matter in which "resolution of essential conflicting factual claims depend[ed] upon credibility determinations," Appellate Tax Board decision had to be vacated as matter of due process because no "member participating in the board's decision actually attended the board's hearing," and "the board could not evaluate the credibility of the witnesses without observing their demeanor when testifying"). 8

At the end of the day, CRAB's conclusion was that Hollup's

"psychiatric conditions were continuous with his pre-existing

psychiatric conditions and not altered by the head injury."

Critical to this conclusion were two subsidiary findings that

are not supported by the record evidence. First, CRAB rejected

the conclusion of the regional medical panel that Hollup had not

received psychiatric treatment prior to the head injury. As the

DALA magistrate noted, the unanimous regional medical panel had

"all of the pertinent medical reports and diagnostic studies."

They "acknowledge[d] the previous ADHD and anger management

issues that became more symptomatic as a result of being

aggravated when [Hollup] fell and hit his head on September 14,

2004." As to the panel doctors' assertion that Hollup did not

receive psychiatric treatment prior to the accident, the DALA

magistrate concluded that

"the panel doctors, all of whom are psychiatrists, are absolutely correct. [Hollup] first saw Dr. Smith[, a psychiatrist,] at UMass in September 2004. He began treating with Dr. Kirsch[, a psychiatrist in the same clinic as Dr. Smith,] shortly thereafter. Admittedly, he participated in anger management sessions beginning in or about 1999. However, this cannot be categorized as psychiatric treatment[.] Delving deeper into his past, he was prescribed Ritalin and Celexa for his Attention Deficit Hyperactivity Disorder. However, the record does not reflect that these medications were prescribed by a licensed psychiatrist. Ergo, [Hollup] did not have psychiatric treatment until the aftermath of the September 14, 2004 accident." 9

CRAB's rejection of the medical panel's statement was based

on extra-record evidence, particularly citation to a number of

websites that were not in the administrative record, from which

it concluded, apparently contrary to the conclusion of the

actual psychiatrists on the regional medical panel, that the

treatment for anger management issues amounted to "psychiatric

treatment," so that the doctors' conclusion was in error. See

WebMD, Anger Management, https://www.webmd.com/mental-

health/anger-management#1 [https://perma.cc/YK6U-X37T]; WebMD,

Celexa - Uses, Side Effects, and More,

https://www.webmd.com/drugs/2/drug-8603/celexa-oral/details

[https://perma.cc/BVZ7-62AU].

It is impermissible for CRAB to rely on extra-record

evidence such as this, see Brantley v. Hampden Div. of the

Probate & Family Court Dep't, 457 Mass. 172, 185 n.17 (2010);

Haley's Case, 356 Mass. 678, 681-682 (1970), and there is no

basis in the record for second guessing the supported judgment

of the doctors on the regional medical panel concerning the

nature of Hollup's past treatment, of which they were aware.

The second critical basis for CRAB's conclusion was a

citation to the reports of a single doctor, Dr. Michael Rater,

who met Hollup on one brief occasion as the doctor who evaluated

him in connection with a workers' compensation claim, and who

concluded that Hollup's symptoms were due to overuse of 10

prescribed opioids. CRAB asserted that Dr. Rater had concluded,

as it did, that Hollup's psychiatric conditions "were continuous

with his pre-existing psychiatric conditions and not altered by

the head injury."

An examination of Dr. Rater's report, however, demonstrates

that he did not address the symptoms of depression at all. He

did speak about conflict and irritability, but there is no

indication in his report or anywhere in the administrative

record that Hollup suffered from depression before the accident,

although "major depressive disorder" was a primary finding of

the regional medical panel.

Throughout its decision, CRAB also emphasized changes in

the details described by Hollup when recounting the accident

over time. It certainly does appear that Hollup changed his

description in some respects over time, making the events seem

worse than he originally described them. But the critical fact

on which CRAB focused is Hollup's reporting of a loss of

consciousness. CRAB concluded that statement was false, and its

decision states as a fact that "[i]nitially, the [hospital

emergency department] report on the date of the accident

indicated that Hollup denied loss of consciousness."

To be sure, the emergency department physician record does

include a notation of "Øloc," which apparently means no loss of

consciousness. It is, however, not clear from the record that 11

this was reported by Hollup. Most significantly, Hollup

testified in person before the DALA magistrate that he had told

every doctor he had met, including in the emergency department

that day, that he had lost consciousness upon hitting his head.

The magistrate, who heard the live testimony of Hollup, found

him credible. Because CRAB did not see the witness or hear

Hollup testify, and because there is not the kind of evidence in

the record that demonstrates by anything close to the requisite

certainty that that credibility judgment was in error, see

supra, CRAB was not free to conclude that Hollup was lying in

reporting his loss of consciousness.

CRAB also asserts that the cause of any psychiatric

disability was not the head injury. It identifies a series of

stressors that it says contributed to the depression, but the

medical records do not indicate that these are causes of

depression but that rather, Hollup suffered from

"decompensation" in their presence. CRAB finally says that

"family and marital discord, financial stressors, medication

overuse and opiate dependence, and lack of a structured life,"

which it suggests were causes of his depression, were withheld

from the regional medical panel. But the medical panel had

access to all the medical reports that noted these issues, the

significance of which has been described above. To be sure,

lack of a structured life caused by his inability to return to 12

work, may have played some role in Hollup's depression. But the

record does not support CRAB's conclusion that "Hollup has not

met his burden to show that the head injury of September 2004

was the predominant cause of his psychiatric disability."5

2. The significance of Vest. As an alternative basis for

rejecting the decision of the DALA magistrate, CRAB purported to

rely on Vest, 41 Mass. App. Ct. 191, which CRAB says it has

"extended" in its own prior decisions to "mean the employee must

establish that he or she was permanently unable to perform the

essential duties of his or her position as of the last day the

employee actually performed those duties."

This is a serious misapplication of Vest. In Vest, we

concluded that because G. L. c. 32, § 7 (1) (1994 ed.), provided

that "[a]ny member in service . . . who becomes totally and

permanently incapacitated . . . by reason of a personal injury

5 CRAB also concluded that neither the medical panel's certification nor the reports of Drs. Kirsch, Smith, Cutler, Savla, Braverman, and Vydrin could even support "a prima facie case for accidental disability retirement benefits," see Retirement Bd. of Revere v. Contributory Retirement Appeal Bd., 36 Mass. App. Ct. 99, 106 (1994), a conclusion that again relied on the erroneous premise that these reports were based on inaccurate statements from Hollup and lacked pertinent information regarding external stressors. CRAB's conclusion was without merit. To take the most obvious case, as the medical review panel had access to all the medical reports that noted these issues, its opinion certainly constitutes, in CRAB's own words, "sufficient evidence that, if unrebutted and believed, would allow a factfinder to conclude that [Hollup] suffered a permanent disability based on [a personal injury] sustained while performing [his work duties]." 13

sustained or a hazard undergone as a result of, and while in the

performance of, his duties . . . shall be retired for accidental

disability," where an employee leaves government service, in

that case due to a nonmedical termination without having "an

established disability," the employee, after that termination,

i.e., while not a "member in service," may not claim an

accidental disability retirement benefit. Vest, 41 Mass. App.

Ct. at 193-194.6

This has nothing to do with Hollup's case, as he was

receiving workers' compensation benefits at the time he applied

for accidental disability retirement, and retained under G. L.

c. 32, § 14, all the rights of a "member in service."7 Indeed,

the rule articulated by CRAB that requires a permanent inability

to perform essential duties "as of the last day the employee

6 The statutory language referring to becoming "totally and permanently incapacitated" has since been revised to refer to being "unable to perform the essential duties of [the individual's] job and that [sic] such inability is likely to be permanent." G. L. c. 32, § 7 (1). With respect to the holding in Vest, and its meaning, the change in the language of the statute is immaterial.

7 General Laws c. 32, § 14 (1) (a), provides:

"Any employee who was a member in service at the time of sustaining an injury or undergoing a hazard on account of which he becomes entitled to payments under the provisions of chapter one hundred and fifty-two shall, during the period while he is receiving weekly payments for total incapacity . . . retain all the rights of a member in service . . . ." 14

actually performed those duties" is without support in the

statute. It would deny disability retirement benefits to

someone who was injured on his last day at work, which injury

caused a disabling stroke the next day. It would eliminate

disability retirement for employees who are exposed to something

at work that ultimately manifests in cancer. Indeed, it would

eliminate from eligibility for accidental disability retirement

all employees who suffer an injury that results in sequelae or a

progressive or degenerative condition that is ultimately

permanently disabling. The statute contains no such limitation,

and Vest does not suggest that it does.

Conclusion. Because CRAB articulated no adequate basis for

rejecting the DALA magistrate's conclusion with respect to

causation or the subsidiary findings discussed above, it should

have affirmed that conclusion with respect to causation.

Consequently, the judgment of the Superior Court is affirmed.

So ordered.