Buteau v. Norfolk County Retirement Bd.

• Decision Date: 28 September 1979
• Citation: 394 N.E.2d 993,8 Mass.App.Ct. 391
• Parties: Gladys L. BUTEAU v. NORFOLK COUNTY RETIREMENT BOARD.
• Court: Appeals Court of Massachusetts

Page 993

394 N.E.2d 993

8 Mass.App.Ct. 391

Gladys L. BUTEAU v. NORFOLK COUNTY RETIREMENT BOARD.

Appeals Court of Massachusetts, Suffolk.

Argued April 20, 1979.

Decided Sept. 28, 1979.

John A. O'Leary, Boston, for plaintiff.

James R. DeGiacomo, Boston (Judith K. Wyman, Boston, with him), for defendant.

Before KEVILLE, GOODMAN and GREANEY, JJ.

GOODMAN, Justice.

The plaintiff in this case is the widow of a firefighter who died of a heart attack; death occurred about two hours after the firefighter responded to an emergency during which he administered first aid to a choking child. It is undisputed that the firefighter's heart attack and death were caused by his exertion at that emergency. Upon application to the defendant (board), the plaintiff was awarded the benefits provided by G.L. c. 32, § 9, but was denied the higher benefits provided by G.L. c. 32 § 100. The plaintiff then brought an action for judicial review of the denial, purportedly pursuant to the State Administrative Procedure Act, G.L. c. 30A, § 14.

The obvious difficulty with this action is that the defendant is not an "agency" as defined in G.L. c. 30A, § 1(2); and therefore the proceeding sought to be reviewed is not an "adjudicatory proceeding" (as defined in § 1(1)) subject to review under G.L. c. 30A, § 14. The board is not a " department, board, commission, division or authority of the state government," nor is it a "subdivision of any of the foregoing." G.L. c. 30A, § 1(2), as amended through St.1978, c. 552, § 13. Its jurisdiction is to administer a particular county retirement system, "in general an independent unit, having its own separate assets and liabilities." O'Connor v. County of Bristol,329 Mass. 741, 746, 110 N.E.2d 492, 494 (1953). G.L. c. 32, § 20(3). Such a board functions with respect to employees of a county (and certain towns; G.L. c. 32, § 28(3)(b)) as part of the administration of a county, an entity characterized as "a municipal corporation" (Essex County v. Salem, 153 Mass. 141, 142, 153 N.E. 431 (1891); Goodale v. County Commrs. of Worcester,277 Mass. 144, 148-149, 178 N.E. 228 (1931)), which like a city or town is a "territorial subdivision of the State bounded and organized by the Legislature for political purposes and the administration of government." Goodale v. County Commrs. of Worcester, Supra at 148, 178 N.E. at 230. A county body is thus no more an "agency" subject to G.L. c. 30A than a city or town body. See Dixie's Bar, Inc. v. Boston Licensing Bd., 357 Mass. 699, 702, 259 N.E.2d 777 (1970); United Food Corp. v. Alcoholic Beverages Control Commn., --- Mass. ---, --- ^A, 376 N.E.2d 833 (1978); Brignoli v. Boston, 1 Mass.App.Ct. 829, 297 N.E.2d 512 (1973); Chase v. Planning Bd. of Watertown, 4 Mass.App. 430, 350 N.E.2d 470 (1976). Nor has it ever been thought that such local bodies are subject to the detailed provisions for rule making and hearings embodied in G.L. c. 30A. See Rep.A.G., Pub.Doc. No. 12, at 43, 61 (1962)("Application of 'Administrative Procedure Act,' to State agencies and schedule of agencies in their relation thereto") which lists the Contributory Retirement Appeal Board established pursuant to G.L. c. 32, § 16(4), but no county body.

Further, the plaintiff has not exhausted her administrative remedy for denial of benefits under § 100. Her remedy was by appeal to the Contributory Retirement Appeal Board. G.L. c. 32, § 16(4). See Baruffaldi v. Contributory Retirement Appeal Bd., 337 Mass. 495, 150 N.E.2d 269 (1958); McCarthy v. Contributory Retirement Appeal Bd., 342 Mass. 45, 172 N.E.2d 120 (1961); State Bd. of Retirement v. Contributory Retirement Appeal Bd., 342 Mass. 58, 172 N.E.2d 234 (1961); Teachers' Retirement Bd. v. Contributory Retirement Appeal Bd., 346 Mass. 663, 195 N.E.2d 318 (1964); Easthampton Contributory Retirement Bd. v. Contributory Retirement Appeal Bd., 347 Mass. 777, 199 N.E.2d 551 (1964) cases in which the Supreme Judicial Court has reviewed decisions of the Contributory Retirement Appeal Board with reference to widow's benefits under the parallel provision of G.L. c. 32, § 9.

Neither of the parties has raised these matters (see Assuncao's Case, 372 Mass. --- ^B), 359 N.E.2d 1304 (1977). Rather, they entered into an "Agreed Statement of Material Facts," presumably pursuant to G.L. c. 30A, § 14(4)(c), as amended by St.1976, c. 411, §§ 1 & 2, providing for review on "a statement of the case agreed to by the agency and the parties." This statement set out the proceedings and stipulated that: "If the circumstances surrounding the death of Lt. Buteau, as set forth above, constitute an 'accident' or injury as those terms are used in c. 32, § 100, then his widow is entitled to the benefits provided in that section. If the events described do not constitute an 'accident' or 'injury' within the terms of the statute, then the plaintiff, who is receiving benefits pursuant to G.L. c. 32, § 9, is entitled to nothing further, and the suit should be dismissed." We take that to mean that the board agrees to reconsider its decision if the firefighter's death as a result of a heart attack can, as a matter of the construction of G.L. c. 32, § 100, be the result of "injuries" sustained by the firefighter. However, the defendant's brief does not argue that death from a heart attack could not be construed as death from "injuries" within the meaning of § 100. It has apparently abandoned that ground for decision as well it might, since that view is very likely erroneous. Teachers' Retirement Bd. v. Contributory Retirement Appeal Bd., 346 Mass. 663, 195 N.E.2d 318 (1964). Easthampton Contributory Retirement Bd. v. Contributory Retirement Appeal Bd., 347 Mass. 777, 199 N.E.2d 551 (1964). See Baruffaldi v. Contributory Retirement Appeal Bd., 337 Mass. 495, 150 N.E.2d 269 (1958). That the relationship of the heart attack to the plaintiff's duty must be proved without the benefit of the presumption of G.L. c. 32, § 94, does not make the heart attack any the less an "injury."

The defendant instead raises two different issues: (1) whether § 100 requires an "accident" rather than merely an "injury" at the scene of the emergency and (2) whether, assuming an "injury" is sufficient, it was sustained "while at the scene of . . . any emergency" within the meaning of G.L. c. 32, § 100, as amended through St.1978, c. 487, § 18. ¹

However, we do not decide these questions because we believe this is a particularly appropriate case in which to apply the doctrine of exhaustion of administrative remedies and to refrain from "frustrating the statutory scheme" (Gallo v. Division of Water Pollution Control, --- Mass. ---, --- - --- ^C, 372 N.E.2d 1258 (1978)) by bypassing the Contributory Retirement Appeal Board. The Contributory Retirement Appeal Board has been given broad fact finding powers. Quincy Retirement Bd. v. Contributory Retirement Appeal Bd., 340 Mass. 56, 61, 162 N.E.2d 802 (1959). Masiello v. Contributory Retirement Appeal Bd., 360 Mass. 856, 857, 275 N.E.2d 345 (1971). "(A) court should not act upon subject matter peculiarly within the agency's specialized field without taking into account what the agency has to offer." Nelson v. Blue Shield of Massachusetts, Inc., --- Mass. ---, --- ^D, 387 N.E.2d 589 (1979), Selectmen of Framingham v. Civil Serv. Commn., 366 Mass. 547, 554, 321 N.E.2d 649 (1974). The subject matter and the administrative procedure here involved make pertinent the considerations applicable in the administration of the Workmen's Compensation Act where "(t) he policies underlying the exhaustion doctrine have been particularly applicable." Assuncao's Case, 372 Mass. at --- ^E, 359 N.E.2d at 1305. The issues tendered by the defendant are not matters of jurisdiction (contrast Saint Luke's Hospital v. Labor Relations Commn., 320 Mass. 467, 468, 70 N.E.2d 10 (1946); Lahey Clinic Foundation, Inc. v. Health Facilities Appeals Bd., --- Mass. ---, --- ^F, 380 N.E.2d 675; but see East Chop Tennis Club v. Massachusetts Comm. Against Discrimination, 364 Mass. 444, 450 (1973)). Nor are they questions of law in which...