Mass. Appeals Court Continues Radical Assault On Public Employee Retirement – Public Safety Employee Permanently Disabled By Unsolicited Horseplay Does Not Qualify For Work-Related Retirement

Riding the media tidal wave of hostility toward public safety employees receiving workers compensation-type benefits, the Appeals Court of Massachusetts has ruled that a police dispatcher permanently disabled from her job as a result of unsolicited roughhousing at work by a police officer is ineligible for an accidental disability retirement.

In Damiano v. CRAB , 07-P-520 (July 23, 2008), a dispatcher got up from her seat intending to use the restroom and grab work-related forms. As she rose, a police officer jokingly placed her in a headlock and then dragged her eight feet. This action resulted in two employees falling against the wall and the floor. The dispatcher injured her wrist and elbow, which never fully recovered. She never returned to work as a result of the injuries from this incident.

Under Massachusetts General Laws, Chapter 32, §7, public employees are entitled to an accidental disability retirement if they are “unable to perform the essential duties of [their] job by reason of a personal injury sustained or a hazard undergone as a result of, and while in the performance of, [their] duties at some definite place and at some definite time ….” Accidental disability retirees are eligible for 72 percent of their salary for the duration of their permanent disability. In exchange for this payment, these retirees are barred from full-time jobs in the Massachusetts public sector, and also face limitations on what they can earn from outside work.

In the new case, the Appeals Court narrowly interpreted the phrase “in the performance of duty” to deny disability benefits to the dispatcher. Although the dispatcher was working at the time of the injury, was in no way at fault for the injury, and was engaging in conduct permitted by the employer, the Court held that she was not performing actual productive work in a traditional sense and therefore cannot receive accidental disability retirement. The Court seemed to acknowledge that her injury qualified for workers compensation benefits, but stated there is a higher standard of proof to qualify for accidental disability retirement.

The Court seemingly adopted a narrow view of the occasionally mundane day-to-day responsibilities of public safety employees. The Court associated work-related disability incidents with the public safety heroics popularized by the media:

A firefighter who is injured while rushing into a burning building, or fighting a fire, as well as the police officer who is injured while directing traffic, or apprehending a fleeing felon, can easily be understood to have been injured while ‘in the performance of’ duties undertaken on behalf of the public.” The same cannot be said of the dispatcher.

One wonders if the court will recognize the benefits intended by the Legislature to employees injured (for whatever reason) while completing a report, cleaning department equipment, or performing any of the many incidental, unglamorous but indispensable tasks of public safety work. In the future, retirement boards and courts will need to be educated about what actual public safety work entails, and claimants for accidental disability retirement will need to emphasize the key job functions they performed at the time of the injury.