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SJC Gives Public Employers New Tool For Blocking Disability Retirements

John Becker
John Becker May 19, 2009

In a recent decision, the Massachusetts Supreme Judicial Court has allowed a public employer to block an injured employee’s attempt to retire on disability by modifying his work duties so that they no longer resemble his original core job duties.  The decision, Foresta v. Contributory Retirement Appeal Board, was issued on April 24, 2009 as 453 Mass. 669 and can be found here . Sandulli Grace, PC, filed a friend-of-the-court brief on behalf of the Boston Police Patrolmen’s Association, Inc. and the Massachusetts Coalition of Police, in support of the disability employee.

 Foresta involves an employee of the Mass. Turnpike Authority who sought a disability retirement after two job-related lower back injuries.  His job as safety inspector primarily involved driving around the state inspecting fire extinguishers.  A small portion of his job involved teaching courses and doing paperwork.  After Foresta suffered two on the job injuries, his doctors concluded that he was disabled from lifting the fire extinguishers, or driving for significant periods of time.  In other words, the work injuries prevented him from performing his essential job duties.  As a result of his disability, the Authority gave the fire extinguisher duties to another employee and assigned clerical/desk duties to Foresta, which used to be a minute function of his job.  Although a panel of doctors agreed that Foresta could not perform his core duties, it concluded that he could perform the duties of his new job. Foresta still sought a disability retirement, arguing that he was entitled to it because his job injuries prevented him from performing the essential functions of the job as it existed at the time of his injuries.

 The SJC disagreed with Foresta and instead ruled in favor of the Massachusetts Turnpike Authority Employees’ Retirement Board’s decision to deny the accidental disability retirement application.  The SJC found that the Board’s denial was consistent with the history and purpose of the disability retirement laws.  In particular, those laws encourage employers to make accommodations for injured employees and provide rehabilitation for them to keep them on the job, which allegedly limits the Commonwealth’s liability and prevents possible abuses of the system.

 Foresta argued that anti-discrimination laws such as the Americans with Disabilities Act only require employers to make reasonable accommodations, and changing the essential duties of the job is unreasonable.  The SJC ruled instead that the employer may make accommodations that go beyond its obligations under anti-discrimination law, as the Turnpike Authority did here.  Therefore, the SJC held, Foresta was not disabled if he could perform the essential duties of the job after the Turnpike Authority modified it into a desk job.  The bottom line of the SJC’s distinction between an employer’s rights and responsibilities under ADA and disability retirement law is that the public employer gets the final word on the employee’s employment– a public employer can deny a request to change the essential functions of the job when sought by an employee or applicant without violating the ADA, but the employer may force an injured employee to change the essential duties of his or her job in order to prevent him from leaving work on a disability retirement. 

 The SJC did place some limits on the changes that an employer may make to accommodate an injured employee.  “The essential duties of the job as modified must be similar in responsibility and purpose to those performed by the employee at the time of the injury, and must result in no loss of pay or other benefits,” the Court stated.  Presumably, then, there must be some continuity between the original job and the modified position in terms of duties performed.

 The SJC’s decision leaves a number of questions unanswered, notably, How will employers and retirement boards determine which duties are similar in responsibility and purpose to those the employee performed at the time of the injury?  What if other employees with the same job title performed the duties but the injured employee did not?   Does this case extend to light duty assignments for police and fire fighters, whose essential functions involve physically demanding crime and fire prevention/suppression?  Unfortunately, further litigation may be required to answer these and other questions that arise from the SJC’s vague language.  Only time will tell how severely public safety employees will be affected.  But there is no question that the right has been restricted by the Foresta decision: if a public employer wants to block an employee from getting a disability retirement – even where the disability results from the employee’s public service – the employer now has one more weapon in its arsenal.

 

 

In Our Opinion...

Anxiety/Depression in Response to Work-Related Events May Qualify for Accidental Disability Retirement

Sandulli Grace Staff October 15, 2008

The Massachusetts Appeals Court recently highlighted the difficulty a public employee applying for accidental disability retirement faces when trying to establish a mental disability was caused by work.  Fender v. CRAB, 07-P-0621 (Oct. 3, 2008).    To establish entitlement to accidental disability retirement benefits, a member of a Massachusetts public employment retirement system must show that that the employee is “unable to perform the essential duties of his job and that such inability is likely to be permanent . . . by reason of a personal injury sustained . . . as a result of, and while in the performance of, his duties.”  G.L. c. 32, § 7(1).  Emotional and mental disabilities qualify as “personal injury” under the law, as well as under the workers’ compensation act.  Therefore, to establish that the series of events at work caused his disability, the applicant must show that the disability stemmed from (A) “a single work-related event or series of events” OR (B) the employee was exposed to “an identifiable condition . . . that is not common and necessary to all or a great many occupations” and this resulted in gradual deterioration.

 In the case of Fender v. CRAB, the acting superintendent of a municipal Department of Public Works claimed that he experienced a series of stressful events between 2001 and 2003, including:  (1) a record snowfall; (2) the sudden death of the key department head of the town’s operations department; (3) an unexpected and expensive seaweed cleanup that raised environmental concerns and upset beachgoers; (4) a suicide attempt by the successor to the operations department director position; (5) a fatal case of Legionnaire’s disease, which is highly infectious, in the town; (6) an onerous work schedule during the late summer months of 2003; (7) a threatened strike by DPW employees reporting to him; and (8) a DPW board meeting during which his superiors criticized him.

 Despite a three-person medical panel unanimously endorsing the applicant’s claim that his anxiety/depression disability was caused by the above events, the Plymouth County retirement board rejected the application for accidental disability retirement.  The Contributory Retirement Appeal Board (“CRAB”) and the Superior Court affirmed this decision. 

 The Appeals Court agreed here that the employee could not show that these events were a unique “identifiable condition” entitling him to retirement benefits:  demanding and critical supervisors and unfilled job vacancies created by the deaths and suicide attempt of his employees are common and necessary job pressures for managers.  However, the Court left open the possibility that the employee could show that the 8 numerated incidents above could qualify under the other definition of “personal injury”: “a single work-related event or series of events.”  CRAB found that the deaths and suicide attempt by co-workers were not “personal injuries”, but the agency failed to explain why or how it reached this conclusion.  The Court disagreed with CRAB’s interpretation of what constitutes a “personal injury” under the law, noting that “a mental or emotional disability stemming from a series of work-related events has long been recognized as a ‘personal injury’.”  The case is not over:  the Court sent it back to CRAB for more proceedings.  (The Court criticized CRAB for its failure to provide facts or argument to explain why these events did not qualify as a “personal injury”).

 The Appeals Court ordered CRAB to decide whether the claimed series of work-related events “caused” the applicant’s disability.  Even if CRAB agrees that these events “caused” his disability, the applicant still could be denied accidental disability retirement benefits.  In a footnote, the Court discussed an argument raised by CRAB that the DPW board meeting qualified as a “bona fide, personnel action,” thereby excluding the event from the definition of “personal injury” and supporting a claim for work-related disability.  The Court’s discussion indicates that CRAB conceivably could find that some or even all the events cited are “bona fide, personnel actions”.  The Court declined to rule on whether any event meets the definition of “bona fide, personnel actions”, thereby increasing the possibility that there will be further litigation on this issue.