Retirement Board v. Contributory Retirement Appeal Board

601 N.E.2d 481, 33 Mass. App. Ct. 478, 1992 Mass. App. LEXIS 866
CourtMassachusetts Appeals Court
DecidedOctober 29, 1992
DocketNo. 91-P-833
StatusPublished
Cited by27 cases

This text of 601 N.E.2d 481 (Retirement Board 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
Retirement Board v. Contributory Retirement Appeal Board, 601 N.E.2d 481, 33 Mass. App. Ct. 478, 1992 Mass. App. LEXIS 866 (Mass. Ct. App. 1992).

Opinion

Brown, J.

The Brookline retirement board (local board) appeals from a judgment of the Superior Court affirming a decision of the Contributory Retirement Appeal Board (CRAB) which allowed the claimant’s application for accidental disability retirement benefits under G. L. c. 32, § 7. As both parties have placed principal reliance on Quincy Retirement Bd. v. Contributory Retirement Appeal Bd., 340 [479]*479Mass. 56 (1959), our task on appeal is to fit the reasoning and result reached in that case to the instant circumstances.

We rehearse the underlying facts, which are undisputed, in summary fashion. The claimant, Richard Simmons, became a police officer with the Brookline police department in December of 1977. Since approximately 1976, Simmons has sustained repeated, nonwork-related injuries to his right foot, including ankle sprains. On February 20, 1985, while making an arrest, Simmons fell and twisted his right ankle. He returned to work on light duty status in March, 1985. His ankle became progressively more unstable, and, in July, 1985, his treating orthopedist, Dr. Frank Bunch, performed an ar-throscopy procedure on his right ankle joint. Simmons subsequently developed an infection at the site of the arthroscopy, which caused degenerative changes in the ankle. He returned to light duty work in September, 1985, as a police dispatcher.

In March, 1989, Simmons filed an application for accidental disability retirement benefits pursuant to G. L. c. 32, § 7. A regional medical panel, convened pursuant to G. L. c. 32, §§ 6(3)(a) & 7(1), as amended through St. 1987, c. 697, § 32, examined Simmons on April 20, 1989. Following the examination, the panel found that, although Simmons was disabled from regular duty as a police officer, he could continue his present work as a dispatcher. The panel also found that Simmons’ disability was likely to be permanent and that the disability was such as might be the natural and proximate result of the personal injury sustained or hazard undergone for which retirement is claimed.

Based on the medical panel’s determination “that [the claimant] was not substantially unable to perform all [emphasis added] the duties of a police officer,” the local board denied Simmons’ application because he could perform the duties of a police dispatcher, which is considered sedentary work. Simmons appealed from that decision to CRAB, which assigned the case to the division of administrative law appeals for a hearing. G. L. c. 32, § 16(4). Following a hearing, the administrative magistrate submitted a decision recom[480]*480mending that the decision of the local board denying the application be reversed. On July 6, 1990, CRAB issued its decision, which adopted the findings of fact made by the administrative magistrate and remanded the matter to the local board with instructions to allow Simmons’ application for accidental disability retirement benefits.

The local board sought judicial review of CRAB’s decision in the Superior Court, pursuant to G. L. c. 30A, § 14. A judge of that court affirmed CRAB’s decision, and the local board appealed.

On judicial review under G. L. c. 30A, “[a] decision of CRAB may be set aside only if based upon an error of law or unsupported by substantial evidence.”2 Robinson v. Contributory Retirement Appeal Bd., 20 Mass. App. Ct. 634, 636 (1985). See Bagley v. Contributory Retirement Appeal Bd., 397 Mass. 255, 258 (1986). “Under the substantial evidence test, a reviewing court is not empowered to make a de novo determination of the facts, to make different credibility choices, or to draw different inferences from the facts found by the [agency] . . .” (citations omitted). Pyramid Co. v. Architectural Barriers Bd., 403 Mass. 126, 130 (1988).

1. The local board argues that Simmons’ disability, if any, was due to the infection which came about as a result of the arthroscopy of the claimant’s right ankle and was not causally related to any injury sustained in the course of his employment as a police officer. Since the arthroscopy was subsequently deemed to have been unneccesary, the local board goes on to contend that it follows that there can be no causal relation between the disability caused by the infection and the injury sustained by Simmons on February 20, 1985.

The medical panel concluded that Simmons’ disability was “primarily the result of the post-operative infection following the arthroscopic procedure. This procedure was done for lateral instability which may or may not have been present prior to February, 1985, however, the injury of February, [481]*4811985, would seem to be an aggravating factor and therefore there would appear to be a causal relationship of his disability to his work as a policeman.”3 Simmons has the burden of proving that his disability was causally related to the personal injury sustained in the course of his employment as a police officer. Blanchette v. Contributory Retirement Appeal Bd., 20 Mass. App. Ct. 479, 482-483 (1985). The medical panel’s certification that the claimant’s disability might be causally related to the February, 1985, injury “is not conclusive of the ultimate fact of causal connection but stands only as some evidence on the issue. . . . The final determination in this case whether causation was proved was reserved to [CRAB], based on the facts found and all the underlying evidence, including both the medical and non-medical facts.” Blanchette v. Contributory Retirement Appeal Bd., 20 Mass. App. Ct. at 483.

In the present case, CRAB determined that the claimant had met his burden of establishing causal connection, a determination which is supported by the evidence. That the claimant’s condition worsened as a result of the arthroscopy, which was subsequently proven to have been unnecessary, does not alter the fact that the original ankle injury in February, 1985, was work-related. Once it is established that his ankle sprain was work-related, further disability that arose from complications incident to medical treatment for the ankle sprain is also work-related. “The law is well settled that, in an action of tort for negligence causing bodily injury, the negligence of a physician, properly chosen, in treating that injury does not destroy the causal connection between that injury and the consequent suffering, even so much of the suf[482]*482fering as arises from the negligent treatment and would not have arisen if the injury had been properly treated.” Sacchetti v. Springer, 303 Mass. 480, 481 (1939). See Burns’s Case, 218 Mass. 8, 10-11 (1914); Somers’s Case, 344 Mass. 581, 585 (1962). See also Locke, Workmen’s Compensation § 223 (2d ed. 1981).

2. The major contention of the local board is that since the medical panel reported that Simmons could continue to work as a dispatcher, even though he was disabled from performing the full range of the regular duties of a police officer, CRAB should not have ordered the allowance of his application for accidental disability retirement benefits. It is the local board’s position that since Simmons is medically capable of working as a dispatcher, and since the town of Brookline is willing to assign him permanently to such duties, he is not totally and permanently disabled within the meaning of G. L. c. 32, § 7. This argument is premised on an incorrect standard of law.4

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Bluebook (online)
601 N.E.2d 481, 33 Mass. App. Ct. 478, 1992 Mass. App. LEXIS 866, Counsel Stack Legal Research, https://law.counselstack.com/opinion/retirement-board-v-contributory-retirement-appeal-board-massappct-1992.