Blanchette v. Contributory Retirement Appeal Bd.

• Decision Date: 30 July 1985
• Citation: 20 Mass.App.Ct. 479,481 N.E.2d 216
• Parties: , 26 Ed. Law Rep. 795 George E. BLANCHETTE v. CONTRIBUTORY RETIREMENT APPEAL BOARD; Marlborough Retirement Board, intervener.
• Court: Appeals Court of Massachusetts

Page 216

481 N.E.2d 216

20 Mass.App.Ct. 479, 26 Ed. Law Rep. 795

George E. BLANCHETTE v. CONTRIBUTORY RETIREMENT APPEAL BOARD; Marlborough Retirement Board, intervener.

Appeals Court of Massachusetts Middlesex.

Argued June 6, 1985.

Decided July 30, 1985.

Edward J. Shagory, Boston, for the plaintiff.

Holly Salamido, Asst. Atty. Gen., for Contributory Retirement Appeal Bd.

Roy D. Toulan, Jr., Wilmington, for Marlborough Retirement Board, intervener.

Before GREANEY, C.J., and BROWN and WARNER, JJ.

GREANEY, Chief Justice.

This action was brought in the Superior Court pursuant to G.L. c. 30A, § 14, for review, under the provisions of G.L. c. 32, § 16(4), of a decision made by the Contributory Retirement Appeal Board. That decision upheld the Marlborough retirement board's denial of the plaintiff's application for accidental disability retirement under G.L. c. 32, § 7(1). A judge of the Superior Court affirmed the appeal board's decision, and the plaintiff has appealed. The sole issue is the correctness of the appeal board's conclusion that the plaintiff had not sustained his burden of establishing a definite causal relationship between his mental disability and a personal injury sustained while in the performance of his duties as a school building custodian.

We summarize the facts found by the hearings officer with some supplementation from the record. These are the facts which were relied upon by the appeal board in reaching its decision. The plaintiff, a fifty-nine year old man, had been discharged from the United States Army in November of 1943 with a diagnosis of severe psychoneurosis. After his discharge, he received some treatment for a nervous condition. Thereafter, the plaintiff held various jobs requiring relatively little interpersonal contact. At those jobs, he had difficulty with his supervisors which often led to his quitting after a short period of time. In 1963, the plaintiff was employed by the Marlborough school committee as a roving custodian assigned to various schools.

In 1969, the plaintiff was appointed head custodian at an elementary school, where he was given supervisory authority over two other custodians. In his capacity as head custodian, the plaintiff had difficulty in communicating with both his superiors and his subordinates. The plaintiff testified that he believed that the principal at the school did not support him in conflicts with his subordinates, with the other custodians, or with the administration. Over the years, a number of incidents led to the plaintiff's feeling "persecuted" by his superiors. These incidents may be summarized as follows:

(1) Some time in 1972 or 1973, the plaintiff complained to the principal about the roving custodian, who he felt did not do his work and frequently left work early. Subsequently, the custodian assaulted the plaintiff in the school kitchen, calling him a "stoolie." The plaintiff went to the principal's office, where the principal physically intervened and told the plaintiff to leave the premises. The principal refused to allow the plaintiff use of his office telephone to call the police. Although the principal reported the incident to the superintendent of schools, no disciplinary action was taken against the other custodian.

(2) In 1972, the plaintiff left work early, with the principal's permission, to go to the hospital where his brother lay dying. The next week the plaintiff complained to the principal because his pay had been docked one half day. The principal indicated that there was nothing he could do. The plaintiff made a special request to the school committee, and his pay was restored.

(3) In 1976, the plaintiff's father died. The plaintiff took off a Thursday and a Friday to attend the wake and funeral, and the following Monday to assist his mother in settling his father's affairs. His next paycheck was one day short, because the principal had interpreted the union contract's three-day bereavement clause as limited to three consecutive days. The plaintiff's pay was ultimately restored by the school committee.

(4) On March 3, 1977, a Thursday, the plaintiff left work an hour and one half early and did not return on Friday. On the following Monday, March 7, the plaintiff had a confrontation with the principal's secretary over whether he was required to sign a "sick slip." Later that day, the principal confronted the plaintiff in the school cafeteria and the two men argued over the need for a "sick slip."

(5) The following day, March 8, 1977, a second-grade girl dropped her tray of food on the cafeteria floor. The assistant principal told the plaintiff to clean up the mess. The plaintiff agreed to pick up the food and debris, but not the tray because he believed that school policy required the child to pick up her own tray. The assistant principal summoned the principal who ordered the plaintiff to pick up the tray. The plaintiff refused. The principal indicated that he intended to cite the plaintiff for insubordination and that a hearing would be held on Thursday, March 10, 1977.

(6) On March 10th, the plaintiff arrived at the school in the early morning. He wrote a letter to the principal and left it on a desk in the boiler room. After the children had arrived and entered the building, the plaintiff went out to his automobile with his dog, connected a length of hose from the tailpipe to a side window, got in, and turned on the engine. At some point the plaintiff left the automobile and went to the school cafeteria, where he was found crying by his coworkers. He was taken by ambulance to a nearby hospital and treated for carbon monoxide poisoning. The plaintiff was hospitalized for nineteen days under the care of the hospital's chief of psychiatry for a "psychotic depression reaction."

(7) During his stay in the hospital, the plaintiff was visited by the superintendent of schools, who presented the plaintiff with a petition stating that the teachers at the school did not want him to return. The plaintiff was discharged from the hospital on March 29, 1977, and has not worked since. On March 30, 1977, he applied for accidental disability retirement. The medical panel that examined the plaintiff pursuant to G.L. c. 32, § 6(3)(a), certified that he was permanently disabled from performing his duties as a custodian as the result of a psychotic depression and that the depression might be the result of his employment.

The plaintiff argues that the certification of the medical panel, considered along with the medical evidence in the case, conclusively established a causal relationship between his disability and a personal injury occurring in the performance of his duties as a custodian and, as a consequence, that the appeal board's denial of accidental disability retirement benefits has no support in the record. We disagree.

In order to qualify for accidental disability retirement under G.L. c. 32, § 7(1), as appearing in St.1982, c. 630, § 18, an applicant must prove permanent and total disability "by reason of a personal injury sustained or a hazard undergone as a result of, and while in the performance of, his duties at some definite place and at some definite time." ¹ The parties do not dispute that the plaintiff's psychotic depression may constitute a "personal injury" within the meaning of G.L. c. 32, § 7(1), so as to qualify for accidental disability retirement benefits. Emotional disability may constitute a personal injury within the meaning of the workers' compensation act, G.L. c. 152, see Kelly's Case, 394 Mass. 684, 686, 477 N.E.2d 582 (1985), and the term "personal injury" is given the same meaning under G.L. c. 32. Zavaglia v. Contributory Retirement Appeal Bd., 345 Mass. 483, 486, 188 N.E.2d 147 (1963). The crucial question here is causation--has the plaintiff's disability been shown to have been the natural and proximate result of a personal injury sustained as a result of the performance of his duties as a school custodian?

The plaintiff had the burden of establishing the requisite causal nexus. See Hough v. Contributory Retirement Appeal Bd., 309 Mass. 534, 540, 36 N.E.2d 415 (1941); Wakefield Contributory Retirement Bd. v. Contributory Retirement Appeal Bd., 352 Mass. 499, 502, 226 N.E.2d 245 (1967). The medical panel's certification as to the plaintiff's condition (that his disability "might be the natural and proximate result" of a personal injury which the plaintiff sustained as a result of his employment) is not conclusive of the ultimate fact of causal connection but stands only as some evidence on the issue. Wakefield Contributory Retirement Bd. v. Contributory Retirement Appeal Bd., supra. The final determination in this case whether causation was proved was reserved to the appeal board, based on the facts found and all the underlying evidence, including both the medical and non-medical facts. ²

The general picture revealed that the plaintiff's mental problems were of long duration, reaching as far back as 1943, when he was discharged from military service with a diagnosis of psychoneurosis. He subsequently received some medical treatment for a nervous condition. Between 1943 and 1963 he unsuccessfully held a variety of jobs, most of which lasted for a few months to two years. In practically all his jobs, the plaintiff had recurring problems and frequent arguments with his supervisors, and he usually felt that he was being harassed. He quit many jobs after a short time. The same problems beset his employment in the Marlborough schools, which was marked by frequent conflicts with coworkers and supervisors and by feelings of persecution.

The chairman of the medical panel submitted a letter which was admitted in evidence. This doctor indicated that "[f]or years [the plaintiff] feels that he has been harassed and picked on by people, and cannot understand what he does to deserve such treatment." Based on a review of the plaintiff's history, this doctor found "long standing...