Hollup v. Worcester Retirement Board ( 2023 )

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21-P-707 Appeals Court
ROBERT HOLLUP vs. WORCESTER RETIREMENT BOARD & another.1
No. 21-P-707.
Worcester. September 14, 2022. - August 25, 2023.
Present: Rubin, Henry, & Walsh, JJ.
Contributory Retirement Appeal Board. Retirement. Municipal
Corporations, Retirement board. Division of Administrative
Law Appeals. Public Employment, Accidental disability
retirement. Administrative Law, Findings.
Civil action commenced in the Superior Court Department on
January 15, 2020.
The case was heard by Shannon Frison, J., on motions for
judgment on the pleadings.
Michael Sacco for Worcester Retirement Board.
David R. Marks, Assistant Attorney General, for
Contributory Retirement Appeal Board.
Charles E. Berg for the plaintiff.
RUBIN, J. This case involves two important issues. First,
we address the circumstances in which it is permissible for the
1 Contributory Retirement Appeal Board.
2
Contributory Retirement Appeal Board (CRAB) to reverse factual
findings made by a magistrate of the Division of Administrative
Law Appeals (DALA) when CRAB reviews a decision made by that
magistrate after hearing and evaluating the credibility of the
testimony of live witnesses. Second, we address CRAB's reading
of Vest v. Contributory Retirement Appeal Bd., 41 Mass. App. Ct.
191 (1996), which it has construed to mean that an employee may
not receive disability retirement benefits unless the employee
establishes that he or she was permanently unable to perform the
essential duties of his or her position as of the last day the
employee actually performed those duties. We conclude that that
construction, which would eliminate the protection of disability
retirement for myriad workers who suffer sequelae of, or a
degenerative or progressive disease caused by, a work accident,
is in error.
Introduction. This case involves an application for
accidental disability retirement benefits brought by Robert
Hollup based on a psychiatric sequela to a closed-head injury he
suffered when he fell off the back of a garbage truck on
September 14, 2004. The instant application indicated that the
medical reason for the application was "depression caused by
head injury." A regional medical panel, defined by the statute
as a "three member independent medical panel," G. L. c. 32, § 1,
composed of three doctors, answered all three questions listed
3
on the Public Employee Retirement Administration Commission's
(PERAC) preprinted "Regional Medical Panel Certificate" in the
affirmative, thus finding that Hollup was "MENTALLY OR
PHYSICALLY INCAPABLE OF PERFORMING THE ESSENTIAL DUTIES OF HIS
OR HER JOB AS DESCRIBED IN THE CURRENT JOB DESCRIPTION," that
"SAID INCAPACITY [IS] LIKELY TO BE PERMANENT," and that "SAID
INCAPACITY [IS] SUCH AS MIGHT BE THE NATURAL AND PROXIMATE
RESULT OF THE PERSONAL INJURY SUSTAINED OR HAZARD UNDERGONE ON
ACCOUNT OF WHICH RETIREMENT IS CLAIMED,"2 i.e., his falling off
the garbage truck on which he worked. With respect to that
third question, relating to causation, the certificate correctly
stated:
"If the acceleration of a pre-existing condition or injury
is as a result of an accident or hazard undergone, in the
performance of the applicant's duties, causation would be
established. However, if the disability is due to the
natural progression of the pre-existing condition, or was
not aggravated by the alleged injury sustained or hazard
undergone, causation would not be established."
The narrative, written by one of the doctors on the regional
panel and concurred in by the other two, stated that
"given the fact that his condition seemed to worsen
markedly following the head injury, we would say that he
meets criteria for aggravation of a preexisting condition
standard, and that therefore said incapacity is such as
might be the natural and proximate result of the personal
2 The preprinted certificate states in a note, "When
constructing your response to the question of causality (#3) in
accidental disability narrative reports, your opinion must be
stated in terms of medical possibility and not in terms of
medical certainty."
4
injury sustained or hazard undergone on account of which
retirement is claimed."
It further stated, "Our working diagnosis for [Hollup] is as
follows: 1. Major depressive disorder; 2. Neurocognitive
disorder due to traumatic brain injury; 3. Personality disorder
NOS."
Despite this, the Worcester retirement board (board) denied
Hollup's application.3 He timely appealed to CRAB and CRAB
assigned the appeal to DALA. A hearing was conducted by a DALA
magistrate, at which the magistrate not only considered the
myriad medical reports reflecting Hollup's treatment, but also
heard live testimony from Hollup. Having heard Hollup testify,
the DALA magistrate rejected the negative finding of a prior
workers' compensation magistrate with respect to Hollup's
credibility. The DALA magistrate concluded that Hollup had met
his burden of proving that he qualified for accidental
disability retirement benefits as a result of the September 14,
2004, head injury. As the regional medical panel did not lack
pertinent medical facts, apply erroneous standards, or engage in
3 Hollup previously brought another application for
accidental disability retirement based on neurological
consequences of the accident. The medical panel there, see
Murphy v. Contributory Retirement Appeal Bd., 463 Mass. 333, 335
(2012), concluded that Hollup was not incapable of performing
his essential duties by virtue of any neurological deficit. The
doctors on that panel indicated that it was beyond the scope of
their evaluation to comment on the question of "worsening
psychiatric dysfunction" following the accident.
5
any procedural irregularities, the DALA magistrate weighed the
panel's collective opinion heavily, noting that it was
consistent with the opinions of six other doctors (Drs. Daniel
Kirsch, Eric Smith, Mark Cutler, Lalit Savla, Michael Braverman,
and Mikhail Vydrin).
On the board's appeal, CRAB purported to adopt with minor
modifications the DALA magistrate's seventy-one findings of fact
as its own. However, it disagreed with the magistrate's
findings as to medical causation. CRAB purported to find that
Hollup's psychiatric conditions were "continuous with his pre-
existing conditions and not altered by the head injury of
September 2004." As a second, independent ground for reversing
the DALA decision, CRAB concluded that "Hollup must establish
that he suffered from a matured and established psychiatric
disability at the time he was last in active performance of his
duties." In this, it purported to rely on Vest, 41 Mass. App.
Ct. at 194. Hollup appealed to the Superior Court, which
reversed the CRAB decision. See G. L. c. 30A, § 14. CRAB has
now appealed to us.
Discussion. 1. CRAB's reversal of the DALA magistrate's
findings of fact. The factual findings made by a DALA
administrative magistrate are not immune from review and even
reversal by CRAB. "Nonetheless, all subsidiary findings made by
the magistrate are entitled to 'some deference' by CRAB, and
6
those findings that are based on credibility determinations by
the magistrate are entitled to 'substantial deference.'" Murphy
v. Contributory Retirement Appeal Bd., 463 Mass. 333, 336
(2012), quoting Vinal v. Contributory Retirement Appeal Bd., 13
Mass. App. Ct. 85, 101 (1982). Where it rejects such findings,
CRAB must provide "a considered articulation of the reasons
underlying that rejection." Vinal, supra at 102. The deference
required in review of factual findings "will permit [CRAB] to
conduct a meaningful review of a [magistrate's] findings to
determine whether they are significantly against the weight of
the evidence, or . . . suspect in light of the 'consistency and
inherent probability of testimony'" (citation omitted). Id. at
101. The requirement of an explanation "will help ensure that
[CRAB] will carefully consider any decision to reject a
[magistrate's] findings and that it will provide a reviewing
court with an adequate explanation on which to determine whether
that rejection was warranted." Id. This test must be
considered against the fundamental rule rooted in due process
that a reviewing body ordinarily may not reverse a credibility
judgment made by the administrative or judicial officer who
actually heard the testimony of the witness and found him or her
7
to be credible.4 "[I]t is inappropriate to ask [an appellate
panel who has not heard the witness] to reverse a judge's
findings involving credibility, since he saw the witnesses and
we did not" (citation omitted). Commonwealth v. Day, 387 Mass.
915, 919 (1983). As we have explained, a determination of
credibility made by one who actually heard a witness "is close
to immune from reversal on appeal except on the most compelling
of showings." Johnston v. Johnston, 38 Mass. App. Ct. 531, 536
(1995).
CRAB articulated at great length its reasons for rejecting
the conclusion of the regional medical panel and the DALA
magistrate. That articulation, required by our case law, allows
us to examine CRAB's decision to reject the magistrate's
findings. In the end, we conclude that CRAB has provided no
adequate basis for rejecting those findings or the conclusion of
the magistrate that Hollup's depression was caused by an
exacerbation by his head injury "of his pre-existing Attention
Deficit Hyperactivity and mood disorders."
4 Cf. Fox v. Commissioner of Revenue, 51 Mass. App. Ct. 336,
343-344 (2001) (in matter in which "resolution of essential
conflicting factual claims depend[ed] upon credibility
determinations," Appellate Tax Board decision had to be vacated
as matter of due process because no "member participating in the
board's decision actually attended the board's hearing," and
"the board could not evaluate the credibility of the witnesses
without observing their demeanor when testifying").
8
At the end of the day, CRAB's conclusion was that Hollup's
"psychiatric conditions were continuous with his pre-existing
psychiatric conditions and not altered by the head injury."
Critical to this conclusion were two subsidiary findings that
are not supported by the record evidence. First, CRAB rejected
the conclusion of the regional medical panel that Hollup had not
received psychiatric treatment prior to the head injury. As the
DALA magistrate noted, the unanimous regional medical panel had
"all of the pertinent medical reports and diagnostic studies."
They "acknowledge[d] the previous ADHD and anger management
issues that became more symptomatic as a result of being
aggravated when [Hollup] fell and hit his head on September 14,
2004." As to the panel doctors' assertion that Hollup did not
receive psychiatric treatment prior to the accident, the DALA
magistrate concluded that
"the panel doctors, all of whom are psychiatrists, are
absolutely correct. [Hollup] first saw Dr. Smith[, a
psychiatrist,] at UMass in September 2004. He began
treating with Dr. Kirsch[, a psychiatrist in the same
clinic as Dr. Smith,] shortly thereafter. Admittedly, he
participated in anger management sessions beginning in or
about 1999. However, this cannot be categorized as
psychiatric treatment[.] Delving deeper into his past, he
was prescribed Ritalin and Celexa for his Attention Deficit
Hyperactivity Disorder. However, the record does not
reflect that these medications were prescribed by a
licensed psychiatrist. Ergo, [Hollup] did not have
psychiatric treatment until the aftermath of the September
14, 2004 accident."
9
CRAB's rejection of the medical panel's statement was based
on extra-record evidence, particularly citation to a number of
websites that were not in the administrative record, from which
it concluded, apparently contrary to the conclusion of the
actual psychiatrists on the regional medical panel, that the
treatment for anger management issues amounted to "psychiatric
treatment," so that the doctors' conclusion was in error. See
WebMD, Anger Management, https://www.webmd.com/mental-
health/anger-management#1 [https://perma.cc/YK6U-X37T]; WebMD,
Celexa - Uses, Side Effects, and More,
https://www.webmd.com/drugs/2/drug-8603/celexa-oral/details
[https://perma.cc/BVZ7-62AU].
It is impermissible for CRAB to rely on extra-record
evidence such as this, see Brantley v. Hampden Div. of the
Probate & Family Court Dep't, 457 Mass. 172, 185 n.17 (2010);
Haley's Case, 356 Mass. 678, 681-682 (1970), and there is no
basis in the record for second guessing the supported judgment
of the doctors on the regional medical panel concerning the
nature of Hollup's past treatment, of which they were aware.
The second critical basis for CRAB's conclusion was a
citation to the reports of a single doctor, Dr. Michael Rater,
who met Hollup on one brief occasion as the doctor who evaluated
him in connection with a workers' compensation claim, and who
concluded that Hollup's symptoms were due to overuse of
10
prescribed opioids. CRAB asserted that Dr. Rater had concluded,
as it did, that Hollup's psychiatric conditions "were continuous
with his pre-existing psychiatric conditions and not altered by
the head injury."
An examination of Dr. Rater's report, however, demonstrates
that he did not address the symptoms of depression at all. He
did speak about conflict and irritability, but there is no
indication in his report or anywhere in the administrative
record that Hollup suffered from depression before the accident,
although "major depressive disorder" was a primary finding of
the regional medical panel.
Throughout its decision, CRAB also emphasized changes in
the details described by Hollup when recounting the accident
over time. It certainly does appear that Hollup changed his
description in some respects over time, making the events seem
worse than he originally described them. But the critical fact
on which CRAB focused is Hollup's reporting of a loss of
consciousness. CRAB concluded that statement was false, and its
decision states as a fact that "[i]nitially, the [hospital
emergency department] report on the date of the accident
indicated that Hollup denied loss of consciousness."
To be sure, the emergency department physician record does
include a notation of "Øloc," which apparently means no loss of
consciousness. It is, however, not clear from the record that
11
this was reported by Hollup. Most significantly, Hollup
testified in person before the DALA magistrate that he had told
every doctor he had met, including in the emergency department
that day, that he had lost consciousness upon hitting his head.
The magistrate, who heard the live testimony of Hollup, found
him credible. Because CRAB did not see the witness or hear
Hollup testify, and because there is not the kind of evidence in
the record that demonstrates by anything close to the requisite
certainty that that credibility judgment was in error, see
supra, CRAB was not free to conclude that Hollup was lying in
reporting his loss of consciousness.
CRAB also asserts that the cause of any psychiatric
disability was not the head injury. It identifies a series of
stressors that it says contributed to the depression, but the
medical records do not indicate that these are causes of
depression but that rather, Hollup suffered from
"decompensation" in their presence. CRAB finally says that
"family and marital discord, financial stressors, medication
overuse and opiate dependence, and lack of a structured life,"
which it suggests were causes of his depression, were withheld
from the regional medical panel. But the medical panel had
access to all the medical reports that noted these issues, the
significance of which has been described above. To be sure,
lack of a structured life caused by his inability to return to
12
work, may have played some role in Hollup's depression. But the
record does not support CRAB's conclusion that "Hollup has not
met his burden to show that the head injury of September 2004
was the predominant cause of his psychiatric disability."5
2. The significance of Vest. As an alternative basis for
rejecting the decision of the DALA magistrate, CRAB purported to
rely on Vest, 41 Mass. App. Ct. 191, which CRAB says it has
"extended" in its own prior decisions to "mean the employee must
establish that he or she was permanently unable to perform the
essential duties of his or her position as of the last day the
employee actually performed those duties."
This is a serious misapplication of Vest. In Vest, we
concluded that because G. L. c. 32, § 7 (1) (1994 ed.), provided
that "[a]ny member in service . . . who becomes totally and
permanently incapacitated . . . by reason of a personal injury
5 CRAB also concluded that neither the medical panel's
certification nor the reports of Drs. Kirsch, Smith, Cutler,
Savla, Braverman, and Vydrin could even support "a prima facie
case for accidental disability retirement benefits," see
Retirement Bd. of Revere v. Contributory Retirement Appeal Bd.,
36 Mass. App. Ct. 99, 106 (1994), a conclusion that again relied
on the erroneous premise that these reports were based on
inaccurate statements from Hollup and lacked pertinent
information regarding external stressors. CRAB's conclusion was
without merit. To take the most obvious case, as the medical
review panel had access to all the medical reports that noted
these issues, its opinion certainly constitutes, in CRAB's own
words, "sufficient evidence that, if unrebutted and believed,
would allow a factfinder to conclude that [Hollup] suffered a
permanent disability based on [a personal injury] sustained
while performing [his work duties]."
13
sustained or a hazard undergone as a result of, and while in the
performance of, his duties . . . shall be retired for accidental
disability," where an employee leaves government service, in
that case due to a nonmedical termination without having "an
established disability," the employee, after that termination,
i.e., while not a "member in service," may not claim an
accidental disability retirement benefit. Vest, 41 Mass. App.
Ct. at 193-194.6
This has nothing to do with Hollup's case, as he was
receiving workers' compensation benefits at the time he applied
for accidental disability retirement, and retained under G. L.
c. 32, § 14, all the rights of a "member in service."7 Indeed,
the rule articulated by CRAB that requires a permanent inability
to perform essential duties "as of the last day the employee
6 The statutory language referring to becoming "totally and
permanently incapacitated" has since been revised to refer to
being "unable to perform the essential duties of [the
individual's] job and that [sic] such inability is likely to be
permanent." G. L. c. 32, § 7 (1). With respect to the holding
in Vest, and its meaning, the change in the language of the
statute is immaterial.
7 General Laws c. 32, § 14 (1) (a), provides:
"Any employee who was a member in service at the time of
sustaining an injury or undergoing a hazard on account of
which he becomes entitled to payments under the provisions
of chapter one hundred and fifty-two shall, during the
period while he is receiving weekly payments for total
incapacity . . . retain all the rights of a member in
service . . . ."
14
actually performed those duties" is without support in the
statute. It would deny disability retirement benefits to
someone who was injured on his last day at work, which injury
caused a disabling stroke the next day. It would eliminate
disability retirement for employees who are exposed to something
at work that ultimately manifests in cancer. Indeed, it would
eliminate from eligibility for accidental disability retirement
all employees who suffer an injury that results in sequelae or a
progressive or degenerative condition that is ultimately
permanently disabling. The statute contains no such limitation,
and Vest does not suggest that it does.
Conclusion. Because CRAB articulated no adequate basis for
rejecting the DALA magistrate's conclusion with respect to
causation or the subsidiary findings discussed above, it should
have affirmed that conclusion with respect to causation.
Consequently, the judgment of the Superior Court is affirmed.
So ordered.