Mathewson v. Contributory Retirement Appeal Bd.

• Decision Date: 29 March 1957
• Citation: 141 N.E.2d 522,335 Mass. 610
• Parties: Mildred F. MATHEWSON, Administratrix, v. CONTRIBUTORY RETIREMENT APPEAL BOARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 522

141 N.E.2d 522

335 Mass. 610

Mildred F. MATHEWSON, Administratrix, v. CONTRIBUTORY RETIREMENT APPEAL BOARD.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 5, 1957.

Decided March 29, 1957.

George W. McLaughlin, Boston, for petitioner.

Matthew S. Heaphy, Asst. Atty. Gen., for respondent.

Robert J. DeGiacomo, Boston, amicus curiae.

Before WILKINS, C. J., and SPALDING, COUNIHAN and CUTTER, JJ.

WILKINS, Chief Justice.

On May 3, 1955, Edward B. Mathewson, a uniformed, paid member of the fire department of Cohasset and a member of the Norfolk County retirement system, applied for an accidental disability retirement allowance. G.L.(Ter.Ed.) c. 32, § 7, as appearing in St.1945, c. 658, § 1, as amended. From a denial of his application by the Norfolk County retirement board he appealed to the respondent contributory retirement appeal board (which we shall call the appeal board), G.L. (Ter.Ed.) c. 32, § 16(4), as so appearing, as amended. The appeal board affirmed the decision of the county board. Upon this petition for a writ of certiorari to quash the action of the appeal board, judgment was entered dismissing the petition. The petitioner appealed. G.L.(Ter.Ed.) c. 213, § 1D, inserted by St.1943, c. 374, § 4. After his death his administratrix was substituted as party petitioner.

Except for procedure, the important question for decision is the effect the presumption that hypertension or heart disease is service connected, as defined by G.L. (Ter.Ed.) c. 32, § 94, added by St.1950, c. 551, as appearing in St.1951, c. 594, has upon earlier enacted provisions of the accidental disability retirement statute, namely, G.L. (Ter.Ed.) c. 32, § 7(1), as appearing in St.1945, c. 658, § 1; ¹ and § 6(3)(a) as so appearing, as amended by St.1946, c. 603, § 2, and St.1947, c. 388, § 7. 1

From the return of the appeal board it appears that at the time of his application for the allowance in 1955 the petitioner was sixty-three years of age. He was examined by a medical panel of three physicians pursuant to G.L. (Ter.Ed.) c. 32, § 6, as appearing in St.1945, c. 658, § 1, as amended. A majority of the panel found that he was suffering from 'hypertensive arteriosclerotic heart disease, aortic stenosis, myocardial infarction, by history'; that he was 'mentally or physically incapacitated for further duty in his present position'; that his 'disability is likely to be permanent'; and that 'the disability * * * is not the natural and proximate result of the accident or hazard undergone on account of which the retirement is claimed.' In a minority report Dr. Reid, who was his attending physician stated that in his opinion the disability was 'service connected.' He relied upon a history given by the petitioner of two episodes (1) shortness of breath following a fall upon the ice in front of the fire house on February 1, 1954, and (2) being obliged to make a rapid transfer of fire fighting equipment from a stalled fire truck he was driving to a fire on January 1, 1955, which preceded a heart attack two weeks later. On July 7, 1955, the county board voted: 'Inasmuch as a majority of the medical panel stated that in their opinion * * * the disability is not the natural and proximate result of the accident or hazard undergone on account of which the retirement is claimed, it was unanimously voted to deny Mr. Edward B. Mathewson's request for an accidental disability allowance.'

On December 16, 1955, the appeal board promulgated its decision, stating that it 'does not consider that Edward B. Mathewson is entitled to be retired, on the record, on his application for accidental disability retirement.'

Pertinent provisions relating to accidental disability retirement are found in G.L. (Ter.Ed.) c. 32, entitled 'Retirement Systems and Pensions.' 'Any member * * * who becomes totally and permanently incapacitated for further duty * * * 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 * * * upon his written application on a prescribed form filed with the [appropriate retirement (§ 1)] board * * * shall be retired for accidental disability as of a date which shall be specified in such application * * *. No such retirement shall be allowed unless the board after such proof as it may require, including in any event an examination by the medical panel provided for in subdivision (3) of section six and including a certification of such incapacity by a majority of the physicians on such medical panel, shall find that such member is mentally or physically incapacitated for further duty to the extent and under the circumstances set forth in this section, that such incapacity is likely to be permanent, and that he should be so retired', § 7(1), as appearing in St.1945, c. 658, § 1. 'No member shall be retired for disability under the provisions of this section or of section seven unless he has first been examined by a medical panel and unless a majority of the physicians on such medical panel shall, after such examination and after a review of all of the pertinent facts in the case, certify to the board in writing that such member is mentally or physically incapacitated for further duty and that such incapacity is likely to be permanent, and, in any case involving a retirement under section seven, the board shall further state whether or not the disability is such as might be the natural and proximate result of the accident or hazard undergone on account of which such retirement is claimed under said section' § 6(3)(a), as appearing in St.1945, c. 658, § 1, as amended by St.1946, c. 603, § 2, and St.1947, c. 388, § 7.

In Hunt v. Contributory Retirement Appeal Board, 332 Mass. 625, 127 N.E.2d 171, which was not a hypertension or heart disease case, we held that a retirement board acting under § 7 cannot allow a retirement for accidental disability unless there is before it, as a condition precedent to its finding, "a certification of such incapacity by a majority of the physicians" on the medical panel. 332 Mass. at page 627, 127 N.E.2d at page 172. The phrase 'such incapacity' in § 7 must refer to the earlier part of that section where the right to apply for this kind of retirement is conferred upon a member 'who becomes totally and permanently incapacitated * * * by reason of a personal injury sustained or a hazard undergone as a result of, and while in the performance of, his duties.' Under § 6(3)(a) the medical panel must state whether the disability 'might be the natural and proximate result of the accident or hazard undergone.' In two cases where the presumption defined in § 94 did not apply, we have said that the certification of the medical panel was not binding on the county board, which is to decide the case on all the evidence. Cassier v. Contributory Retirement Appeal Board, 332 Mass. 237, 240, 124 N.E.2d 516. Hunt v. Contributory Retirement Appeal Board, 332 Mass. 625, 627, 127 N.E.2d 171, 172. This statement must mean that in such cases the county board cannot allow an accidental disability retirement application in the absence of the 'certification of such incapacity,' but the board is not required to follow it when the board has it.

We turn to a consideration of § 94 added by St.1950, c. 551, as appearing in St.1951, c. 594, which provides: 'Notwithstanding the provisions of any general or special law to the contrary * * * any condition of impairment of health caused by hypertension or heart disease resulting in total or partial...