Kalu v. Boston Retirement Board , 90 Mass. App. Ct. 501 ( 2016 )

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15-P-1148 Appeals Court
OBIDIYA KALU vs. BOSTON RETIREMENT BOARD & another.1
No. 15-P-1148.
Norfolk. May 4, 2016. - October 14, 2016.
Present: Katzmann, Carhart, & Sullivan, JJ.2
Contributory Retirement Appeal Board. Public Employment,
Accidental disability retirement, Retirement. Retirement.
Practice, Civil, Appeal. Administrative Law, Decision,
Judicial review, Official notice, Substantial evidence.
Civil action commenced in the Superior Court Department on
July 21, 2014.
The case was heard by Peter B. Krupp, J., on motions for
judgment on the pleadings.
Charles E. Berg for the plaintiff.
Elizabeth Kaplan, Assistant Attorney General, for
Contributory Retirement Appeal Board.
Edward H. McKenna for Boston Retirement Board.
1
Contributory Retirement Appeal Board (CRAB).
2
Justice Katzmann participated in the deliberation on this
case prior to his resignation.
2
SULLIVAN, J. The plaintiff, Obidiya Kalu, appeals from a
Superior Court judgment affirming a decision of the Contributory
Retirement Appeal Board (CRAB). CRAB had determined that while
Kalu's appeal from the denial of accidental disability
retirement benefits by the Boston Retirement Board (BRB) was
timely, she was not entitled to those benefits.3 We conclude
that the appeal was timely, but we vacate the judgment affirming
the denial of benefits and remand the case for further
proceedings.
1. Timeliness of appeal from retirement board decision.
The first issue presented is whether the fifteen-day appeal
period from an adverse decision of a retirement board set forth
in G. L. c. 32, § 16(4), begins to run when a represented
applicant receives proper notice of the retirement board's
decision, or when an applicant's legal counsel receives such
notice. We defer to CRAB's reasonable interpretation of its
enabling statute and conclude that the appeal period begins to
run when notice is received by the applicant's counsel.
After a hearing, an administrative magistrate of the
Division of Administrative Law Appeals (DALA) made factual
3
The BRB denied Kalu's application for accidental
disability retirement benefits. An administrative magistrate of
the Division of Administrative Law Appeals (DALA) found that the
appeal was timely, and awarded benefits. CRAB agreed on the
procedural issue, but reversed the DALA magistrate's award of
benefits.
3
findings on the issue of when notice was received, and by whom,
all of which were adopted by CRAB. "We accept the facts found
by CRAB when there is substantial evidence to support them, and
also accept the reasonable inferences CRAB draws from the
facts." Rockett v. State Bd. of Retirement, 77 Mass. App. Ct.
434, 438 (2010) (citation omitted). We summarize the pertinent
findings, all of which were supported by substantial evidence.
Attorney James Ellis filed the claim for accidental
disability retirement benefits on Kalu's behalf on December 30,
2006. In October, 2008, the BRB held a hearing on Kalu's claim.
Kalu was represented by Attorney Dennis Ellis, who is a member
of a different law firm, at the hearing before the BRB. On June
23, 2009, the BRB denied Kalu's application, and subsequently
sent a decision letter to Kalu's home address via certified
mail. The decision letter stated that an appeal to CRAB must be
filed "within 15 days of receipt of this notice." There was no
evidence in the record that the decision letter was sent to (or
received by) either Attorney Ellis.
Kalu, due to her son's death in Nigeria, went to Nigeria
from June until August of 2009, and had arranged for her
daughter to collect her mail during this period. The daughter
signed for the BRB decision letter on June 26, 2009. Contrary
to her mother's directions, Kalu's daughter threw away some of
4
the mail, including the decision letter.4 Kalu, who retrieved
her mail from her daughter promptly upon return, did not see the
decision letter, and her daughter did not mention it to her.5
Beginning in November, 2008, Attorney James Ellis's firm
had made repeated inquiries to the BRB concerning any decision
on Kalu's application. The BRB promised him (repeatedly) that
it would provide him a copy, but did not. Attorney James Ellis
did not receive a copy of the decision until November of 2009.
James Ellis mailed Kalu's notice of appeal of the BRB's adverse
determination to CRAB on November 12, 2009.6
4
The daughter also threw away two mailed workers'
compensation checks.
5
The BRB argued to DALA and CRAB, and continues to argue on
appeal, that Kalu had not gone to Africa, that it was her
signature on the certified mail delivery receipt, and that the
DALA magistrate erred in crediting her testimony without
corroboration. Matters of credibility and weight are for DALA,
see Murphy v. Contributory Retirement Appeal Bd., 463 Mass. 333,
336 (2012), and ultimately CRAB, see id. at 336-337 & 344-345,
neither of which erred in crediting Kalu's testimony.
6
At various points in this appeal, the BRB claimed that it
sent the decision to Attorney Dennis Ellis in June of 2009,
because he was trial counsel. The BRB has also argued that it
should be presumed that it sent the decision to Attorney Dennis
Ellis because it was sent to Kalu. However, BRB offered no
witnesses at the hearing. Copies of the certified mailing to
Kalu and the signed delivery receipt were admitted in evidence,
but there were no exhibits showing that the notice of denial was
sent to Attorney Dennis Ellis. Neither the DALA magistrate nor
CRAB credited the claim that the notice was sent to Attorney
Dennis Ellis. The BRB argues on appeal that only Attorney
Dennis Ellis was entitled to notice because he alone appeared at
the hearing on this matter. Because there is no evidence of
5
The BRB argued that Kalu's appeal was untimely because it
was not filed within fifteen days of June 26, 2009, the date of
signature on the certified mail receipt. The DALA magistrate
concluded, however, that the fifteen-day appeal period "does not
come into play until the appropriate person has received notice
of the board's decision." Because Kalu was represented by legal
counsel, the magistrate reasoned, "it was her legal counsel's
receipt of [the decision letter] that triggered the fifteen day
filing period and not . . . Kalu's receipt of that letter as
received by her daughter on June 26, 2009." CRAB likewise
concluded:
"[T]he appeal to DALA was filed 'within fifteen days of
notification of such action or decision of the retirement
board,' as required by G. L. c. 32, § 16(4). Under
§ 16(4), notification must be made to the 'person' who is
'aggrieved' by the decision. Where Kalu was represented by
counsel, notice to her counsel was, in effect, notice to
her, and commenced the fifteen-day appeal window. While it
was proper to send notice to Kalu as the 'person . . .
aggrieved' under § 16(4), we agree with the magistrate
that, where a retirement board is aware that a party is
represented by counsel, notice also must be sent to counsel
of record. A represented party is justified in expecting
that, after the commencement of a proceeding and the
appearance of counsel, copies of all notices will be sent
to her attorney."
The question before us is whether CRAB erred as a matter of
law in construing G. L. c. 32, § 16(4), as amended through
St. 1996, c. 306, § 21A, which provides in pertinent part:
notice as to either Attorney Ellis, the distinction is not
material.
6
"[A]ny person . . . aggrieved by any action taken or
decision of the retirement board . . . may appeal to [CRAB]
by filing therewith a claim in writing within fifteen days
of notification of such action or decision of the
retirement board" (emphasis supplied).
See Fender v. Contributory Retirement Appeal Bd., 72 Mass. App.
Ct. 755, 760 (2008) (CRAB decision reviewable for error of law).7
"As with any statute, we review questions concerning the
meaning of an agency's enabling statute de novo. If the meaning
of a term is clear in the plain language of a statute, we give
effect to that language as the clearest expression of the
Legislature's purpose. If, however, the statutory language is
sufficiently ambiguous to support multiple, rational
interpretations, we look to the cause of [the statute's]
enactment, the mischief or imperfection to be remedied and the
main object to be accomplished, to the end that the purpose of
its framers may be effectuated." Peterborough Oil Co., LLC v.
Department of Envtl. Protection, 474 Mass. 443, 448 (2016)
(citations and quotations omitted). Additionally, "[w]hile the
duty of statutory interpretation is for the courts . . . an
7
A different provision of G. L. c. 32, § 16(4), as amended
by St. 1990, c. 331, requires an appeal to CRAB from a DALA
decision to be filed "within fifteen days after such decision"
(emphasis supplied). We express no opinion regarding notice
requirements under that provision. We also express no opinion
whether Kalu, if she had been unrepresented by counsel, would be
considered to have received statutory "notification" in the
circumstances. Cf. Anderson v. Billerica, 309 Mass. 516, 516-
518 (1941); Commonwealth v. Crosscup, 369 Mass. 228, 239-240
(1975).
7
administrative agency's interpretation of a statute within its
charge is accorded weight and deference. . . . Where the
[agency's] statutory interpretation is reasonable . . . the
court should not supplant [its] judgment." Id. at 449
(quotation omitted).
The statute does not define "notification" (or any variant
of the term) and is ambiguous with respect to who must be
notified in the case of a represented applicant. See G. L.
c. 32, §§ 1, 16; Biogen IDEC MA, Inc. v. Treasurer & Receiver
Gen., 454 Mass. 174, 188 (2009) (undefined language in statute
is ambiguous where "susceptible of multiple, rational
interpretations"). We therefore look to the intent of the
statute, and any interpretive regulations, which also have the
force of law. See Entergy Nuclear Generation Co. v. Department
of Envtl. Protection, 459 Mass. 319, 329 (2011). See also
Global NAPs, Inc. v. Awiszus, 457 Mass. 489, 496 (2010) ("[A]
properly promulgated regulation has the force of law and must be
given the same deference accorded to a statute").
The Public Employee Retirement Administration Commission
(PERAC) promulgates regulations governing disability retirement
proceedings before local retirement boards. See 840 Code Mass.
Regs. §§ 10.00.8 These include a section specifically
8
The applicable regulations are those in effect at the time
of Kalu's application and the BRB's decision. See Middleborough
8
authorizing representation by counsel before the local board,
and requiring counsel to file a written appearance providing
counsel's name, address, and telephone number to the board. See
840 Code. Mass. Regs. § 10.05(3) (1998).9 Counsel's name,
address, and telephone number are supplied for a reason.
"Indeed, we may presume that a party who has retained counsel
. . . has done so precisely because that party does not wish to
assume personal responsibility for complying with the various
procedural requirements of the [statute]. Moreover, the appeal
period . . . is very short; consequently, under [a] statutory
construction [where the appeal period begins upon notice to the
applicant], a party who receives notice of the . . . decision
must promptly forward such notice to his or her counsel to avoid
forfeiting the right to appeal. It is extremely unlikely that
the [L]egislature intended to impose such a burden on a party
who has retained counsel for the specific purpose of
v. Housing Appeals Comm., 449 Mass. 514, 517 n.8 (2007). No
relevant changes to those regulations occurred between the time
of application and decision. See Figueroa v. Director of Dept.
of Labor & Workforce Dev., 54 Mass. App. Ct. 64, 69-72 & n.11
(2002). The regulations were most recently revised in March of
2016, but we do not discern (and the parties do not raise) any
differences material to the issues before us in this appeal.
9
If benefits are denied, notification to the parties is
mandatory; "the board shall notify [PERAC] and notice of the
decision and right to appeal shall be sent to all parties
[within three days of the decision]." 840 Code. Mass. Regs.
§ 10.13(1)(b) (2000). See id. at § 10.13(3)(a) (2008). (See
now 840 Code Mass. Regs. § 10.13[1][c] [2016].)
9
representing the party on such matters." Schreck v. Stamford,
250 Conn. 592, 598 (1999) (ten-day appeal period for workers'
compensation claim begins to run when counsel is sent notice).
CRAB's construction of the enabling statute is also
consistent with the practice in other fora,10 and promotes the
purposes of the statute. "It shall be the policy of the
retirement board to make every reasonable effort to assist
retirement system members to exercise all rights and obtain all
benefits to which entitled and as authorized by the laws
governing ordinary and accidental disability retirement, while
protecting the retirement system and the public against claims
and payments for disability retirement not authorized by law."
840 Code. Mass. Regs. § 10.02 (1998). Notifying counsel of the
disposition of an application for benefits is essential to the
preservation of the applicant's right to obtain benefits, where
warranted, and has no deleterious consequences in the event that
the applicant is not entitled to benefits under applicable law.
10
See Mass.R.Civ.P. 5(b), 365 Mass. 745 (1974) (requiring
service on counsel); CRAB Standing Order 2008-1 2(f) (as amended
June 12, 2009) (requiring service on authorized representative).
Unlike the Massachusetts Rules of Civil Procedure and the CRAB
Standing Order, the PERAC regulations do not contain a provision
that explicitly requires service on authorized representatives.
Given the importance of adequate notice for both retirement
boards and retirement system members across the Commonwealth,
regulatory clarity would be preferable to case-specific
adjudication.
10
CRAB's determination that the appeal period began to run
when counsel received notice is reasonable, and is entitled to
deference. Kalu's appeal was timely because it was filed within
fifteen days of notice to counsel.
2. Entitlement to benefits. "It is well established that
judicial review of a CRAB decision pursuant to G. L. c. 30A,
§ 14, is narrow. It is not our province to determine whether
the CRAB decision is based on the weight of the evidence, nor
may we substitute our judgment for that of CRAB. We set aside a
decision by CRAB only where it is legally erroneous or
unsupported by substantial evidence." Murphy v. Contributory
Retirement Appeal Bd., 463 Mass. 333, 344 (2012) (citations and
quotations omitted). We conclude that there was legal error in
the CRAB decision and that certain findings were not supported
by substantial evidence, and we remand for further proceedings.
a. Background. We briefly summarize those findings and
conclusions on which the DALA magistrate and CRAB relied,
leaving further facts for later discussion.
Kalu was a teacher of elementary school age special needs
students in the Boston Public Schools. At the time of the
accident leading to her claim, she had preexisting
osteoarthritis and degenerative changes in her knees. She had
undergone an arthroscopic procedure on both knees in 1994, some
eleven years before the events in question, and returned to work
11
thereafter. On March 21, 2005, Kalu, who was posting materials
to a bulletin board in her classroom, hit her right knee against
a metal chair, twisted, and fell. She immediately saw the
school nurse. While the nurse was escorting her to her car, she
fell again and hit her right knee on her car. She was then
transported to the emergency room for treatment.
Kalu was out of work for a period of time, and elected not
to have arthroscopic surgery on the knee. She returned to work
in September of 2005 at a different school. She was assigned a
third-grade classroom in the basement. She received a teacher
evaluation with an over-all recommendation of "Needs
Improvement" in November, 2005.
While breaking up a fight between some of her students in
December, 2005, Kalu fell again. After further evaluation, she
had a surgical arthroscopy and partial meniscectomy on her right
knee on April 21, 2006. After a period of further review and
physical therapy, Kalu applied for accidental disability
retirement benefits on December 30, 2006, based on the March 21,
2005, injury to her right knee. Kalu claimed that her right
knee pain and other symptoms ("popping" and giving way of the
knee) rendered her unable to do the sustained standing and
walking that was required to perform her job as a teacher.
Between the time of her 2005 injury and the adjudication of
her claim, Kalu was seen by several physicians who were either
12
treating her or retained to perform a review in connection with
her application for workers' compensation benefits.
Additionally, in accordance with the retirement statute, see
G. L. c. 32, § 6(3), a regional medical panel of three doctors
was convened. The panel doctors answered separate certificates
stating that Kalu's knee condition "might be" the natural and
proximate result of the March 21, 2005, incident.11 These
evaluations were sufficient to support the application for
benefits, see G. L. c. 32, § 7(1); Kelley v. Contributory
Retirement Appeal Bd., 341 Mass. 611, 616-617 (1961), and the
DALA magistrate so found.
The opinions of the other doctors were in conflict. The
DALA magistrate relied on the opinion of Kalu's surgeon, who
concluded that the 2005 accident aggravated her preexisting
osteoarthritis, that the aggravation continued even after the
repair of her torn right meniscus, and that she could no longer
perform the essential functions of her job. The magistrate also
relied on the opinion of Dr. Bulman, an independent medical
examiner, who stated that "her precipitous change in right knee
symptomatology" was due to the "loss of the meniscus due to the
11
The medical panel may not offer an unqualified opinion on
causation, because the ultimate conclusion on causation is for
CRAB based on the medical and nonmedical evidence; hence the use
of the term "might." See Lisbon v. Contributory Retirement
Appeal Bd., 41 Mass. App. Ct. 246, 254-255 (1996); Narducci v.
Contributory Retirement Appeal Bd., 68 Mass. App. Ct. 127, 134-
135 (2007).
13
tear" incurred in 2005, which in his view hastened further
degeneration of the preexisting osteoarthritis condition. The
magistrate did not credit Dr. Shea, who concluded that Kalu had
been disabled from work for the periods March 21 to September,
2005, and again from December, 2005, to November 1, 2006, but
that the surgery and physical therapy had successfully resolved
the meniscal tear. Dr. Shea opined that any other symptoms she
suffered were due solely to the natural progression of the
preexisting osteoarthritis, and not the aggravation of a
preexisting condition.
The DALA magistrate concluded that the March, 2005,
classroom injury aggravated the preexisting osteoarthritis, and
was "the primary or natural and proximate cause" of the
disability, citing Noone v. Contributory Retirement Appeal Bd.,
34 Mass. App. Ct. 756, 761 (1993). This determination was based
on the corollary finding that as a special needs elementary
school teacher, Kalu needed to be able to stand and move about
her classroom for sustained periods of time. Based on Kalu's
unrebutted and uncontested testimony, the DALA magistrate found
that she was unable to stand or walk for those periods of time
(i.e., ten minutes or more) necessary to teach her eight year
old special needs students. The city of Boston certified that
she was unable to perform the essential functions of the job,
and that there was no reasonable accommodation to be made. The
14
DALA magistrate therefore concluded that Kalu was disabled from
her usual occupation as a special needs classroom teacher.
CRAB adopted the DALA magistrate's subsidiary factual
findings, with five modifications. CRAB ultimately concluded
that Kalu failed to prove that her knee condition was caused by
the 2005 fall in the classroom, rather than her preexisting
osteoarthritis or the fall that took place later that day in the
parking lot.12 CRAB also concluded that Kalu had failed to prove
that standing for more than ten minutes at a time was an
essential function of her job, and that she failed to show that
she could not perform her job with reasonable accommodation.
CRAB also concluded that the surgery addressed all symptoms
associated with the fall, and that her injury was not permanent.
b. Standard of review. "CRAB is not bound by the DALA
administrative magistrate's recommendation. Nonetheless, all
subsidiary findings made by the magistrate are entitled to some
deference by CRAB, and those findings that are based on
credibility determinations by the magistrate are entitled to
substantial deference. To the extent that CRAB rejects the
magistrate's resolution of credibility questions, CRAB's
decision should contain a considered articulation of the reasons
underlying that rejection." Murphy v. Contributory Retirement
12
For purposes of our review we rely on the facts as found
by CRAB, to the extent that they are supported by substantial
evidence.
15
Appeal Bd., 463 Mass. at 336-337 (citations and quotations
omitted).
An applicant for accidental disability retirement benefits
"has the burden of proving that [her] disability was causally
related to the personal injury sustained in the course of [her]
employment." Retirement Bd. of Brookline v. Contributory
Retirement Appeal Bd., 33 Mass. App. Ct. 478, 481 (1992), citing
Blanchette v. Contributory Retirement Appeal Bd., 20 Mass. App.
Ct. 479, 482-483 (1985). "The medical panel's certification
that the claimant's disability might be causally related to the
[work-related] injury 'is not conclusive of the ultimate fact of
causal connection but stands only as some evidence on the
issue. . . . The final determination in this case whether
causation was proved was reserved to [CRAB], based on the facts
found and all the underlying evidence, including both the
medical and non-medical facts.'" Ibid., quoting from Blanchette
v. Contributory Retirement Appeal Bd., supra at 483.
c. Medical records. The first reason offered by CRAB for
its conclusion that Kalu's proof of causation was lacking was
that she had "failed to provide any records or history
concerning her treatment and surgeries prior to her fall in
2005," and that "all but one or two of the ten physicians . . .
appear to have been unaware of this prior history and based
their opinions on causation on the assumption that her
16
osteoarthritis had not been symptomatic prior to her fall at
work." In the absence of such records, CRAB concluded that it
was "impossible to know whether, for instance, any meniscus [had
been] removed or other conditions noted that would have affected
the progression of Kalu's arthritis."
The administrative record contains the medical records
submitted by Kalu in connection with her application. The
application form, which was provided and approved by PERAC, see
840 Code Mass. Regs. § 10.06 (1998), requested only five years'
worth of medical records.13 See 840 Code Mass. Regs.
§ 10.06(1)(g) (requiring applicant to submit records of
treatment for injury and medical records for the five years
prior to the application). Although it was argued before DALA
that Kalu had not been forthright about her medical history,14
13
PERAC has provided a printed application form in which
claimants are required to identify all providers who have
treated them for their condition in the last five years. Kalu
listed all providers, otherwise answered the questions on the
form, and later submitted to the BRB the medical records of the
listed providers.
14
The BRB argued in its prehearing memorandum to the DALA
magistrate that "the evidence in the record indicates that
[Kalu] has not been completely forthcoming and honest concerning
the extent of her pre-existing right knee conditions and/or any
previous knee injuries. In addition, it is apparent that [Kalu]
has not been completely forthcoming and honest about previous
surgeries to her knees."
At the DALA hearing, when asked if she had had previous
surgery, Kalu answered "no," but when asked by the DALA
magistrate about the arthroscopic procedure in 1994, she
17
the BRB did not request the treatment records for her
arthroscopic procedure eleven years before her accident, thus
leaving the record bare of further medical substantiation of its
contentions. Under the PERAC regulations, the BRB was required
to obtain the additional records. See 840 Code Mass. Regs.
§ 10.09(1) (1998) (retirement boards "shall obtain any pertinent
information known to exist without regard to the five year time
period[]" and "shall conduct such investigation as may be
necessary to determine the facts"). The absence of medical
records other than those submitted by Kalu to the BRB -- in full
conformity with the approved application procedures -- was not
raised or argued before DALA. The DALA magistrate decided the
case on the basis of the facts presented.
CRAB may seek clarification of evidentiary matters not
adequately addressed by the parties before DALA. See Namay v.
Contributory Retirement Appeal Bd., 19 Mass. App. Ct. 456, 464
(1985). However, it must give adequate notice to the parties.
In adjudicatory proceedings, "[p]arties shall have sufficient
notice of the issues involved to afford them reasonable
opportunity to prepare and present evidence and argument."
testified that "the doctor looked into my knee," and that it was
not a surgery. Whether this was an exercise in semantics or
obfuscation was a credibility question implicitly resolved
favorably to Kalu by the magistrate, who credited her account of
the progression of her symptoms. CRAB cannot reject the
magistrate's implicit credibility finding on the basis that Kalu
withheld or failed to produce records when she did not.
18
G. L. c. 30A, § 11(1), inserted by St. 1954, c. 681, § 1. See
Namay v. Contributory Retirement Appeal Bd., supra at 461 (CRAB
hearing is adjudicatory and "must be conducted in accordance
with the requirements of G. L. c. 30A, §§ 10 and 11"). Contrast
Yebba v. Contributory Retirement Appeal Bd., 406 Mass. 830, 837-
838 (1990) (where "any denial . . . of the opportunity to
litigate the . . . issue before CRAB was remedied by the
subsequent opportunity to do so before the [Civil Service]
[C]ommission"). Kalu produced all of the medical evidence
required by PERAC and requested by the BRB, and provided
sufficient evidence (i.e., the expert opinions of two doctors
and the support of the medical panel) to demonstrate a prima
facie case of causation. If the BRB did not produce evidence of
the rate of degeneration of the preexisting osteoarthritis
sufficient to permit CRAB to make a determination, the
appropriate remedy was to remand the case for supplementation of
the record and further findings. See Namay v. Contributory
Retirement Appeal Bd., supra at 464.15
15
Kalu had, in fact, met her burden of production. She
produced the reports of examining physicians who opined that the
March, 2005, fall was the cause of her injury. CRAB was not
obligated to accept those opinions, see Lisbon v. Contributory
Retirement Appeal Bd., 41 Mass. App. Ct. 246, 254 (1996), but
Kalu did provide evidence "sufficient to form a reasonable
basis" for a finding in her favor. Brodin & Avery,
Massachusetts Evidence § 3.2.1 (2016 ed.). Once she did so,
"the burden of production shift[ed] to the opponent" to produce
evidence to the contrary. Id. at § 3.2.2.
19
In addition, CRAB's finding that only one or two of the ten
doctors had been aware of her "prior history" and that
physicians who supported her application assumed that prior to
the accident her osteoarthritis was "[a]symptomatic" is
unsupported by the record.16 As Dr. Shea noted, the scars from
the previous arthroscopic procedure were plainly visible to any
person who examined her, such as Dr. Oladipo, who performed the
meniscectomy.17 With the exception of two doctors, whose
opinions CRAB understandably rejected,18 the other fourteen
medical professionals (including emergency room personnel) noted
the previous history of osteoarthritis, and several discussed
her use of medication both before and after the 2005 injury.19
The fact of the previous arthroscopy was contained in Dr. Shea's
16
In addition to emergency room personnel, Kalu was
evaluated by twelve doctors -- Drs. Mason, Shea, Eslami, Troy,
Oladipo, Mortimer, Fraser, Bulman, Chaglassian, and the members
of the medical review panel, Drs. Galvin, Antkowiak, and Malloy
-- as well as a physician's assistant and a physical therapist.
17
Dr. Shea discovered the scars during his November 1,
2005, examination, and CRAB reasoned that "Dr. Oladipo, who
performed her 2006 arthroscopy, must have noticed that she had
prior surgery, but he does not mention it in his reports."
18
Dr. Fraser and Dr. Chaglassian. The reports of these
physicians stated she had no prior history.
19
For example, Dr. Bulman noted that Kalu's arthritis
symptoms were "tolerable" with Motrin before the accident, and
that as of August of 2007 her medications were Motrin and
Flexeril.
20
medical records that were provided to each of the three members
of the medical review panel.
Finally, CRAB's declaration that it is "impossible to know"
if any of the meniscus was removed in 1994 is not supported by
substantial evidence. An MRI (magnetic resonance imaging)
examination was performed in 2006 which showed the meniscus, and
a meniscal tear. All of the medical professionals, including
Dr. Shea, agreed that the 2005 injury caused the meniscal tear
that interfered with the use of her knee, and rendered Kalu
disabled for some period of time; they parted ways only as to
the continued aggravation of the preexisting condition after the
2006 surgery to remedy the tear.
CRAB's ruling that Kalu had failed to produce records, or
worse, its suggestion that she withheld them, was born of an
error of law. Additionally, CRAB's related factual findings
were, in part, unsupported by substantial evidence. Both errors
inevitably permeated other aspects of its decision. While CRAB
asserted other grounds for its decision, it is not clear that
CRAB would have reached the same conclusions had it provided the
parties with adequate notice, and if it had had a fuller factual
record. For that reason, the appropriate remedy is not an award
of benefits, but a remand for further consideration. See Morris
v. Board of Registration in Med., 405 Mass. 103, 113-114 (1989);
Namay v. Contributory Retirement Appeal Bd., 19 Mass. App. Ct.
21
at 464. We address the additional grounds on which CRAB relied,
for purposes of clarity on remand.
d. Fall in the parking lot. CRAB concluded that Kalu had
"failed to meet her burden of proof" as to causation because
none of the medical professionals had addressed the fact that
she fell and hit her knee while being escorted to her car after
falling at work. CRAB stated that "[w]ith no details about this
nearly contemporaneous injury to her right knee, Kalu has not
proven that her fall at work was the proximate cause of the
injuries she sustained that day."
Here, again, CRAB relied on a legal and evidentiary issue
not previously raised or addressed before the DALA magistrate.
Neither party identified the incident in the parking lot as
either the sole cause of the injury or an intervening cause
which broke the chain of causation. Those issues were not
tried. It was error for CRAB to deny benefits on that basis
without permitting the parties an opportunity to address them.
See G. L. c. 30A, § 11(1); Namay v. Contributory Retirement
Appeal Bd., supra at 461.
To be sure, the plaintiff retained the burden of persuasion
at all times, but it was legal error for CRAB to conclude, as a
matter of law, that the failure to anticipate issues not raised
by the retirement board was a reason to deny her benefits. "It
would be improper for CRAB to require that the plaintiff
22
eliminate all other possible causes" of her injury. Robinson v.
Contributory Retirement Appeal Bd., 20 Mass. App. Ct. 634, 641
(1985).
In addition, CRAB's analysis fails to clearly articulate
the legal foundation upon which it rests, thus frustrating
meaningful appellate review. Cf. id. at 640-641. CRAB has
cited no authority in support of its conclusion. We understand
the underpinnings of its concern to be the rule of law explained
in Namvar v. Contributory Retirement Appeal Bd., 422 Mass. 1004,
1004-1005 (1996), and Richard v. Retirement Bd. of Worcester,
431 Mass. 163, 164 (2000), namely that the Legislature intended
to limit accidental disability retirement benefits to claimants
whose injuries result from the actual performance of their job
duties. See, e.g., id. at 165 (travel to work is not
compensable; travel during work hours mandated by employer is
compensable).
Because the parties did not litigate the effect of the fall
against the car, there was no evidence, and neither DALA nor
CRAB made findings or rulings regarding, whether Kalu was in the
performance of her duties when the second incident occurred.
Compare Murphy v. Contributory Retirement Appeal Bd., 463 Mass.
at 346-352 (evidence insufficient to show judge received
threatening letter while in performance of his duties), with
Retirement Bd. of Salem v. Contributory Retirement Appeal Bd.,
23
453 Mass. 286, 290-291 (2009) (off-site heart attack caused by
stressful conversation at work compensable), and Robinson v.
Contributory Retirement Appeal Bd., 20 Mass. App. Ct. at 638.
Even if the evidence were to show that Kalu was not performing
her job duties at that time, the inquiry would not end there.
If the second time she slipped and hit her knee was the
foreseeable consequence of a previous on-the-job injury, the
second incident would not necessarily break the chain of
causation. See Retirement Bd. of Brookline v. Contributory
Retirement Appeal Bd., 33 Mass. App. Ct. at 481-482. Hence, the
bare fact of the second fall in one day does not provide a basis
for denying benefits as a matter of law.20
e. Essential duties. CRAB concluded that Kalu had not
proved that her essential duties as a teacher included
"prolonged standing, use of stairs, or intervening in fights."
CRAB thus rejected the explicit factual findings of the
magistrate, and the testimony of Kalu, which the magistrate
found credible, as well as the employer's certification that
Kalu was unable to perform the essential functions of her job
with reasonable accommodation. CRAB relied, in part, on the job
20
The absence of additional evidence concerning the fall
against the car is not proof that this incident was the cause of
her condition. See, e.g., Kunkel v. Alger, 10 Mass. App. Ct.
76, 86 (1980) ("It is settled that mere disbelief of testimony
does not constitute evidence to the contrary").
24
description provided by the Boston Public Schools, which
contained no physical requirements for the job.
Under the applicable PERAC regulations, "[t]he
determination of what constitutes an essential duty of a job or
position is to be made by the employer, based on all relevant
facts and circumstances and after consideration of a number of
factors." 840 Code Mass. Regs. § 10.20 (2004).21 The employer's
determination of essential functions is not controlling,
however, and is subject to administrative review by DALA and
CRAB. See McLaughlin v. Lowell, 84 Mass. App. Ct. 45, 69 & n.28
(2013). In this case, the Boston Public Schools filled out the
questionnaire required by the regulations, certified that Kalu
was unable to perform the essential functions of the job, and
certified that there was no reasonable accommodation to be made.
See 840 Code Mass. Regs. § 10.07 (1998). The certification was
conclusory, however, in that it did not list what the physical
requirements of the job were, did not explain the factors
considered, and did not explain why accommodation to a person
with some mobility issues was not feasible.22
21
See now 840 Code Mass. Regs. § 10.21 (2016).
22
The PERAC regulations require the employer to provide
information on a number of factors:
"In making the determination as to whether a function or
duty is essential, the employer shall consider and provide
documentation to include, but not be limited to: (a) The
25
We take no issue with CRAB's effort to find out what degree
of mobility was truly an essential function of the job. The
issue is a consequential one, with potential ramifications for
other teachers. Rather than seek additional information,
however, CRAB filled the gap with assertions that were
unsupported by the record. For example, CRAB opined that "there
is no reason why Kalu could not alternate standing and sitting
for instruction and conferencing," that improved classroom
management would alleviate her problems, and that "she did not
provide any evidence that she, rather than her aide, was
required to physically intervene" in fights between students.
CRAB also speculated that an aide could escort her students to
other activities, and that accommodations were available, based
on the record in a particular case before the Massachusetts
nature of the employer's operation and the organizational
structure of the employer; (b) Current written job
descriptions; (c) Whether the employer requires all
employees in a particular position to be prepared to
perform a specific duty; (d) The number of employees
available, if any, among whom the performance of the job
function can be distributed; (e) The amount of time that
employees spend performing the function; (f) Whether the
function is so highly specialized that the person in the
position was hired for his or her special ability to
perform the function; (g) The consequences of not requiring
the employee to perform the function; (h) The actual
experience of those persons who hold and have held the
position or similar position; and (i) Collective bargaining
agreements."
840 Code Mass. Regs. § 10.20 (2004). (See now 840 Code Mass.
Regs. § 10.21 [2016].)
26
Commission Against Discrimination, but not a part of the record
in this case.23 These factual findings were made without
evidence bearing on the factors enumerated in the regulations,
curriculum requirements, accepted pedagogy, student needs or
behavior, staffing, school policy, history of accommodation, or
contractual obligations. "[CRAB] exceeded its proper role in
announcing, with no . . . evidence in the record to support it,"
that it departed from the magistrate's factual findings. Morris
v. Board of Registration in Med., 405 Mass. at 113. The
information on which findings are made "should be disclosed on
the administrative record." Ibid.
3. Conclusion. The question still remains whether Kalu's
injury resulted in a permanent condition that rendered her
incapable of performing the essential functions of her job, and
was the result of the aggravation of a preexisting condition of
23
We express no opinion on CRAB's apparent assumption that
the burden of proof regarding the lack of suitable accommodation
rests with Kalu. This case is unlike those arising under G. L.
c. 151B, § 4, where the employee claims that she is not
disabled. In those cases, the plaintiff carries the initial
burden of showing that she can perform the essential functions
of her job with or without reasonable accommodation. See
Labonte v. Hutchins & Wheeler, 424 Mass. 813, 822 (1997). In
disability retirement cases, the Supreme Judicial Court has held
that the essential duties of a job must be determined after an
employer has been given a reasonable opportunity to accommodate
an employee seeking disability retirement benefits. See Foresta
v. Contributory Retirement Appeal Bd., 453 Mass. 669, 680
(2009). The disability retirement cases have not squarely
addressed the burden of proof, and the PERAC regulations
regarding initial eligibility are silent as to burden of proof.
27
osteoarthritis, or whether the injury to her knee was resolved
by surgery and any remaining disability was the result of the
natural progression of the preexisting condition. In answering
this question, CRAB properly considered evidence in the record,24
but erred as a matter of law by deciding questions not litigated
before DALA without providing the parties with notice and an
opportunity to present evidence. CRAB also made factual
findings without record support. On remand, CRAB may, in its
discretion, limit the issues under consideration to those raised
before DALA and decide the case based on the present record, or
it may recommit the case to DALA for the taking of additional
evidence. The judgment of the Superior Court is vacated with
instructions to remand the case to CRAB for further proceedings
consistent with this opinion.
So ordered.
24
For example, Dr. Shea opined that Kalu recovered fully
from the injury of March, 2005, and the physical therapist said
that she had a full range of motion.