Wakefield Contributory Retirement Bd. v. Contributory Retirement Appeal Bd.

• Decision Date: 02 May 1967
• Citation: 352 Mass. 499,226 N.E.2d 245
• Parties: WAKEFIELD CONTRIBUTORY RETIREMENT BOARD v. CONTRIBUTORY RETIREMENT APPEAL BOARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 245

226 N.E.2d 245

352 Mass. 499

WAKEFIELD CONTRIBUTORY RETIREMENT BOARD v. CONTRIBUTORY RETIREMENT APPEAL BOARD.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Feb. 8, 1967.

Decided May 2, 1967.

Francis C. McGrath, Town Counsel, for petitioner.

Lillian C. Levine, Wakefield, for James F. Hurton (Herbert E. Tucker, Jr., Asst. Atty. Gen., for Contributory Retirement Appeal Board, with her).

Before WILKINS, C.J., and WHITTEMORE, CUTTER, KIRK and SPIEGEL, JJ.

KIRK, Justice.

The Wakefield contributory retirement board (the local board) appeals from a decree of the Superior Court affirming, after review under G.L. c. 30A, § 14, the decision of the contributory retirement appeal board (the appeal board) (G.L. c. 32, § 16(4)) which set aside the local board's decision and ordered the payment of retirement benefits for total and permanent disability under G.L. c. 32, § 7, to James F Hurton, the intervener, a call fireman employed by the town. Pursuant to our order that a copy of all the proceedings before the appeal board be transmitted to us on the original papers as filed in the Superior Court, we have before us everything that was before the judge.

The record shows that on July 2, 1962, the local board notified Hurton with appropriate forms attached that under G.L. c. 32, § 5(1)(a), he must retire for superannuation, sixty-five years, by August 31, 1962. A letter from Hurton's attorney, dated July 19, 1962, enclosing a request for retirement for accidental disability, purportedly dated July 12, 1962, was received by the local board. A medical panel appointed under G.L. c. 32, § 6(3), certified that Hurton was (1) physically incapacitated for further duty, that the diagnosis was '(s)evere pulmonary emphysema and chronic bronchitis,' and (2) that the disability was likely to be permanent. A majority of the panel answered 'Yes' to the question whether (3) the disability was 'such as might be the natural and proximate result of the * * * hazard undergone on account of which retirement is claimed.' The local board, after hearing, denied Hurton's request. The appeal board rightly remanded the case to the local board because the medical panel had followed an incorrect standard in answering (3), and ordered that an examination be given Hurton by a new panel.

In March, 1964, the second medical panel, consisting in part of two doctors who had been on the first panel, certified answers (1) and (2) as had the first panel; and to the third question answered: 'Yes. Aggravation of existing disease.' The chairman of the second panel wrote to the local board that 'the job as fireman means smoke inhalation of varying severity, repeated as often as there is a fire and for which exposure his pulmonary condition is completely unsuited' and that, 'while smoke inhalation at his fire-fighting occupation is not believed to be the causative agent in the present condition of Mr. Hurton, it is recognized as a recurrent aggravation and a worsening of his underlying condition.'

The local board, on April 17, 1964, conducted a second hearing at which fifteen documents, including those heretofore mentioned, were admitted as exhibits by agreement. The town's fire chief, a brother of the applicant, testified. Based upon the testimony and the exhibits the local board made a comprehensive and analytical report of seven typed pages which concluded 'that James F. Hurton was not physically incapacitated for further duty as an officer or firefighter in the Fire Department as a result of, and while in the performance of, his duty at a definite time and at a definite place and that he should not be retired under * * * (G.L. c. 32, § 7) and further that his application was not submitted in accordance with * * * (G.L. c. 32, § 7 (1)).' The application for retirement for accidental disability was denied.

Hurton then submitted his case to the appeal board on the same fifteen exhibits which had been presented to the local board. The appeal board also received as an exhibit the complete 'minutes' or report of the second hearing before the local board and a copy of a claim for '(l)ung damage from smoke inhalation,' filed with an insurance company on April 20, 1963. The latter claim had been denied by the insurance company. There was no testimony before the appeal board at the second hearing.

The appeal board reversed the local board. It found that Hurton's disability was 'the proximate and natural result of an injury or hazard received as a result of and while in the performance of his duties.' It stated, citing Zavaglia v. Contributory Retirement Appeal Bd., 345 Mass. 483, 188 N.E.2d 147, that the local board had applied an incorrect standard of law in denying Hurton's application.

The appeal board's reliance upon the Zavaglia case, both in its decision and in its brief, is misplaced. The Zavaglia case dealt specifically with the meaning, under G.L. c. 32, § 7(1), of the words 'personal injury' and 'at some definite place and at some definite time' (pp. 485--487, 188 N.E.2d p. 149). The question before the court was whether asthma resulting from the inhalation of coal and chalk dust over a period of years while employed as a school janitor constituted a 'personal injury' 'at some definite place and at some definite time.' The appeal board appears to have...