Namay v. Contributory Retirement Appeal Bd.

• Court: Appeals Court of Massachusetts
• Writing for the Court: ARMSTRONG
• Citation: Namay v. Contributory Retirement Appeal Bd., 475 N.E.2d 419, 19 Mass.App.Ct. 456 (Mass. App. 1985)
• Decision Date: 08 March 1985
• Parties: L. Shirley NAMAY v. CONTRIBUTORY RETIREMENT APPEAL BOARD et al. 1

Page 419

475 N.E.2d 419

19 Mass.App.Ct. 456

L. Shirley NAMAY v. CONTRIBUTORY RETIREMENT APPEAL BOARD et al. ¹

Appeals Court of Massachusetts Suffolk.

Argued March 13, 1984.

Decided March 8, 1985.

S. James Boumil, Lowell, for plaintiff.

William H. Carroll, Sp. Asst. Atty. Gen., for Contributory Retirement Appeal Bd.

Before ARMSTRONG, CUTTER and PERRETTA, JJ.

ARMSTRONG, Justice.

The plaintiff's husband, Dr. N. Richard Namay, served as a physician for the city of Lowell, the county of Middlesex, and the Commonwealth. In 1971, while on duty at the Billerica house of correction, Dr. Namay was beaten by an inmate, and he subsequently suffered a disabling heart attack. Finding that the beating caused the heart attack, the Lowell, Middlesex, and State retirement boards granted him accidental disability retirement benefits under G.L. c. 32, § 7.

Dr. Namay died in 1974 as a result of a malignant brain tumor, and his widow applied to the Lowell, Middlesex, and State retirement boards for death benefits under G.L. c. 32, § 9. The Middlesex board found that the prison beating caused the tumor and awarded benefits under § 9. The Lowell board apparently found that the beating and the tumor were not causally related ² and denied the request. The State board also denied the request, although it did not reach the issue of causation. Instead, it interpreted G.L. c. 32, § 9(1), ³ to preclude death benefits when, as in this case, the medical condition causing death (i.e. the brain tumor) differs from the medical condition which caused retirement (i.e. the heart attack). Mrs. Namay's appeal from the two adverse findings to the Contributory Retirement Appeal Board (appeal board) was heard by a hearings officer (see G.L. c. 32, § 16 ), who concluded that the evidence bearing on the question of causal connection justified a finding either way and, on that basis, recommended deferring to the negative finding of the Lowell board. He disagreed, however, with the State board's interpretation of G.L. c. 32, § 9(1), and recommended remanding the case to the State board for a determination by it whether the beating caused the tumor.

The appeal board disagreed, expressing its own, somewhat enigmatic, view to the following effect: The State board was not incorrect in adopting a "precise reading" of § 9(1), under which Dr. Namay's widow would not be entitled to accidental death benefits under § 9 because the cause of death was different from the condition that underlay the award of accidental disability retirement benefits under § 7. The appeal board felt that it need not determine whether it was permissible for the Lowell board to adopt "a more lenient reading of [§ 9(1) ]," because "[s]ufficient doubt was raised in the medical opinions of the causal relationship between a blow and the later development of a malignant tumor for Lowell to reject the request on that basis." The appeal board thus affirmed the decisions of both the State and Lowell boards denying accidental death benefits. ⁴ Here, it is worth noting that neither the hearings officer's approach nor that of the appeal board called for or resulted in an independent finding based on the evidence received by the hearings officer as to the relationship, if any, between the malignancy that caused Dr. Namay's death and the beating he had suffered at the hands of the inmate three years before.

We first consider the interpretation given by the State board to § 9(1), because, if correct, accidental death benefits would be barred in Dr. Namay's case by reason of the statute, and there would be no reason to inquire into the causal relationship, if any, between the beating and his death. Statutory precursors of today's § 9(1) provided for death benefits where the death of the employee stemmed from (in various forms of language) an accident or a hazard occurring on the job. See, e.g., G.L. c. 32, § 2(10) and (11), as appearing in St.1935, c. 390; § 25B, inserted by St.1936, c. 400, § 1; § 31B, inserted by St.1936, c. 318, § 1. Comparable standards controlled accidental disability retirement benefits (today, G.L. c. 32, § 7 ). Accidental death or disability benefits were not payable where the death or disability was not "traceable to [an] accident or hazard .... A disease of the mind or body that arose in the course of his employment, but was not attributable to such accident or hazard, would not entitle the member to [benefits]...." ⁵ Hough v. Contributory Retirement Appeal Bd., 309 Mass. 534, 538, 36 N.E.2d 415 (1941).

By 1945, when the separate statutory schemes relating to the State, county, and municipal retirement systems were consolidated into one (St.1945, c. 658, § 1), the test for "accidental death benefits" was cast in its present form. "Accident" had been replaced by "injury", and the test was whether the member died as the natural and proximate result 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." G.L. c. 32, § 9. The effect of that change was to extend coverage to include deaths resulting from job-related causes regardless of whether the causes were accidental. Baruffaldi v. Contributory Retirement Appeal Bd., 337 Mass. 495, 500-501, 150 N.E.2d 269 (1958). Under § 9(1) as revised, the test became analogous to the arising-out-of-employment test for workers' compensation eligibility. Ibid. Zavaglia v. Contributory Retirement Appeal Bd., 345 Mass. 483, 486, 188 N.E.2d 147 (1963) (relating to the identical phraseology in § 7 ). The purpose of the change was to broaden coverage. Id. at 487, 188 N.E.2d 147. See Buteau v. Norfolk County Retirement Bd., 8 Mass.App. 391, 393-394, 394 N.E.2d 993 (1979).

Under the present, broadened formulation of § 9(1), there can be no doubt that Dr. Namay's death, if his brain tumor resulted from the beating, was the result of a personal injury sustained or a hazard undergone within the meaning of that section. Assuming the causal connection, his widow would be entitled to receive accidental death benefits if Dr. Namay had not previously been retired under § 7 for the heart condition, but had instead been a member in service at the time of his death. ⁶

We do not think it is consistent with the liberalizing purpose of the Legislature to interpret the last sentence of § 9(1) (see note 3, supra) to preclude death benefits in a case where the same traumatic incident at work produces two distinct physical impairments, one of which is immediately disabling and the other of which causes death. The words "personal injury" are not necessarily to be equated with the physical impairment (or impairments) caused by the traumatic incident. The Legislature's purpose in substituting the words "personal injury" for "accident" was to encompass on-the-job impacts, particularly those of a repetitive or cumulative nature, which could not comfortably be described as accidental. See Zavaglia v. Contributory Retirement Appeal Bd., 345 Mass. at 485-486, 188 N.E.2d 147. The term was meant to be functionally equivalent to the term "accident" but broader in its reach. This is not a strained interpretation. The word "injury" is appropriately used to describe "an act that damages or hurts," as well as the "hurt, damage, or loss sustained." Webster's Seventh New Collegiate Dictionary 435 (1972). In the case of Dr. Namay, it was, in our view, the inmate's assault on Dr. Namay which was the physical injury described by § 9(1). If that injury in fact resulted not only in the heart attack, which caused disability, but also in the brain tumor which caused his death, his widow is entitled to "accidental death benefits" ⁷ under the provisions of § 9.

The question remains, then: Was there a causal connection between the beating and the brain tumor? The State board made no finding one way or the other, resting its decision instead on an erroneous view of the law. The Lowell board is said to have found there was no such connection (see note 2, supra), although the record does not show an express finding to that effect. The appeal board deferred to the Lowell board's negative finding because, in the face of evidence supporting a finding either way, the negative finding could not be called erroneous.

The approach of the appeal board shows a fundamental misunderstanding of the legislatively established administrative process. After an appeal reaches the appeal board, the findings of the retirement board are of no particular significance; it is those of the appeal board which, if supported by substantial evidence, will be determinative. See, e.g., State Bd. of Retirement v. Contributory Retirement Appeal Bd., 342 Mass. 58, 60-61, 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); Methuen Retirement Bd. v. Contributory Retirement Appeal Bd., 384 Mass. 797, 424 N.E.2d 242 (1981). The applicant for benefits has no right to a hearing before the retirement boards, see Masiello v. Contributory Retirement Appeal Bd., 360 Mass. 856, 857, 275 N.E.2d 345 (1971), and c. 32 makes no provision for judicial review of their decisions. Buteau v. Norfolk County Retirement Bd., 8 Mass.App. at 392, 394 N.E.2d 993. The avenue of appeal is administrative, id. at 393, 394 N.E.2d 993; and, after an appeal is claimed, § 16(4) requires that the appeal board, through a hearings officer, accord a fact-finding hearing. Vinal v. Contributory Retirement Appeal Bd., 13 Mass.App. 85, 93-94, 430 N.E.2d 440 (1982). That hearing is adjudicatory under G.L. c. 30A, § 1(1), id. at 91, 430 N.E.2d 440; it must be conducted in accordance with the requirements of G.L. c. 30A, §§ 10 and 11. The board must make findings (§ 11 ), id. at 92, 430 N.E.2d 440; the findings must be supported by substantial evidence...