McKenna v. Contributory Retirement Appeal Board

1 Mass. L. Rptr. 271
CourtMassachusetts Superior Court
DecidedOctober 29, 1993
DocketNo. 92-5313-C
StatusPublished

This text of 1 Mass. L. Rptr. 271 (McKenna v. Contributory Retirement Appeal Board) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McKenna v. Contributory Retirement Appeal Board, 1 Mass. L. Rptr. 271 (Mass. Ct. App. 1993).

Opinion

Houston, J.

Plaintiff John McKenna (McKenna) seeks judicial review pursuant to M.G.L.c. 30A, §14, of the affirmation by the Division of Administrative [272]*272Law Appeals (DALA) of the denial of his accidental disability retirement by the Stoneham Retirement Board (SRB). McKenna requests that this court set aside SRB’s decision, as well as the decision of the DALA affirming SRB’s denial, and order that McKenna be awarded an accidental disability retirement. Alternatively, McKenna requests that the matter be remanded and a second regional medical panel be convened. Finally, McKenna has filed a motion to submit additional evidence to this court pursuant to M.G.L.c. 30A, §14(5).

The parties agreed to submit this action for decision on the briefs. For the following reasons, McKenna’s request that the matter be remanded and a second regional medical panel convened is denied as is his request to present additional evidence. Also, the decision of the DALA affirming SRB’s denial of McKenna’s accidental disability retirement is affirmed.

BACKGROUND

McKenna was employed as a custodian by the Stoneham Public School Department when, on October 15,1986, he suffered a fall while at work. McKenna did not seek medical attention at the time of the accident, nor did he report the accident to his employer.

Between August of 1987 and February 1988, Mc-Kenna experienced a number of medical problems, including urological difficulties and difficulty walking. After visiting his family doctor in August 1987, Mc-Kenna ultimately was seen by Dr. Lawrence Borges, a neurosurgeon. Borges diagnosed McKenna with a herniated disc at T4-5 and in February 1988, performed a thoracotomy. McKenna was readmitted to the hospital in June 1988, and was diagnosed with a tethered spinal cord, for which he underwent surgery performed by Dr. Borges.

McKenna stopped working in February 1988, and on July 19. 1990, submitted an application for accidental disability retirement to the SRB. Dr. Borges completed the Statement of Applicant’s Physician in connection with McKenna’s application. Borges stated that McKenna was substantially unable to perform the duties of his job, that such disability was likely to be permanent, and that McKenna’s injury was such as might be the natural and proximate result of the October 15, 1986 fall.

On October 14, 1990, McKenna was examined by a Regional Medical Panel which unanimously concluded that although McKenna was physically incapacitated and substantially incapable of performing his job, his incapacity was not such as might be the natural and proximate result of the October 15, 1986 fall.

On November 28, 1990, the SRB denied McKenna's application and McKenna filed an appeal with the Contributory Retirement Appeal Board (CRAB). On July 15, 1992, the DALA, which heard the appeal to CRAB, affirmed SRB’s denial ofMcKenna’s accidental disability retirement and the administrative record of this proceeding is currently before the court. None of the parties filed any objections to the DALA’s decision and on August 12, 1992, McKenna filed the current action for judicial review.

DISCUSSION

A. McKenna’s Motion to Present Additional Evidence Pursuant to M.G.L.c. 30A, §14(5)

McKenna has filed a motion with this court pursuant to M.G.L.c. 30A, §14(5), to have admitted for judicial review documents that were not admitted into evidence at the DALA hearing. McKenna asserts it was procedural error not to admit 1) a deposition of Dr. Borges taken in a separate claim brought by McKenna for worker’s compensation, and 2) certified copies of pages taken from orthopedic textbooks. McKenna submitted these documents at the DALA hearing where the Administrative Magistrate denied McKenna’s request to admit them into evidence. However, the textbook pages were taken under advisement by the Administrative Magistrate and were cited in her decision.

The Administrative Procedure Act confines judicial review of administrative appeals to the record “except that in cases of alleged irregularities in procedure before the agency, not shown in the record, testimony thereon may be taken in court.” M.G.L.c. 30A, §14(5). Chapter 30A, Section 14(6) further provides that when the court is satisfied that additional evidence is material to issues in the case and there exists a good reason why it was not offered before the agency, the court may order that such evidence be taken before the agency and the agency may then choose to modify its findings and decision. See Benmosche v. Board of Registration in Medicine, 412 Mass. 82, 88 (1992); She Enterprises, Inc. v. State Building Code Appeals Board, 20 Mass.App.Ct. 271, 273 (1985); Duato v. Commissioner of Public Welfare, 359 Mass. 635, 639 (1971) (reviewing court may hear evidence and make findings only where it is necessary to show procedural irregularities not disclosed by agency record).

The evidence in question was offered at the agency hearing and McKenna has made no showing of any procedural irregularities which led to the Administrative Magistrate’s decision not to admit the offered materials into evidence. Additionally, the Magistrate did in fact consider the treatises in reaching her decision and Dr. Borges’s testimony was admitted in the form of the Statement of Applicant’s Physician, as well as medical records and correspondence. Therefore, McKenna’s motion to present additional evidence is denied and this court's review is confined to the existing administrative record.

B. McKenna’s Complaint for Judicial Review Pursuant to M.G.L.c. 30A, §14 1. Jurisdiction

Defendants argue that this court is without jurisdiction to hear this appeal because McKenna has [273]*273failed to exhaust his administrative remedies. Pursuant to the Administrative Procedure Act, an aggrieved party may seek review in this court of a final decision of an administrative agency. However, this court is without jurisdiction if the plaintiff fails to exhaust all administrative remedies prior to seeking judicial review. Construction Industries of Massachusetts v. Comm’r of Labor & Industries, 406 Mass. 162, 166 (1989); East Chop Tennis Club v. Massachusetts Comm’n Against Discrimination, 364 Mass. 444, 450-51 (1973).

General Law c. 32, §16(4), as amended by St. 1990, c. 331, provides in relevant part that after a hearing before the DALA:

[T]he [DALA] shall submit to the parties a written decision which shall be final and binding upon the board involved and upon all other parties, . . . unless within fifteen days after such decision, (1) either party objects to such decision, in writing, to the contributoiy retirement appeal board, or (2) the contributory retirement appeal board orders, in writing, that said board shall review such decision

Defendants argue that the above cited language requires that a written objection be submitted to CRAB within fifteen days of the DALA’s decision in order to exhaust administrative remedies.

If the language of a statute is unambiguous, “it must be interpreted according to its usual and natural meaning.” Boston Teachers Union, Local 66 v. Boston, 382 Mass. 553, 561 (1981), and cases cited. Viewing the language of M.G.L.c. 32, §16(4) in accordance with this standard, it is clear that, once issued, a decision of the DALA is final and binding unless an objection is filed. Therefore, such a decision would only become non-binding if in fact an objection were filed.

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1 Mass. L. Rptr. 271, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckenna-v-contributory-retirement-appeal-board-masssuperct-1993.