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.