Hull Retirement Board v. Contributory Retirement Appeal Board

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13-P-1825 Appeals Court

HULL RETIREMENT BOARD vs. CONTRIBUTORY RETIREMENT APPEAL BOARD

& others.1

No. 13-P-1825. September 16, 2014.

Contributory Retirement Appeal Board. Municipal Corporations,

Retirement board, Police. Police, Retirement. Public

Employment, Paid leave, Accidental disability retirement,

Retirement. Retirement.

The Hull retirement board (board) appeals from a Superior

Court judgment affirming a decision of the contributory

retirement appeal board (CRAB) upholding a division of

administrative law appeals (DALA) magistrate's determination

requiring the board to amend the effective retirement date of

defendant David Leary. We affirm.

1. Background. Leary was a police officer in the town of

Hull (town). On November 19, 2001, he sustained an injury on

the job and was placed on accidental injury leave with full pay.

See G. L. c. 41, § 111F, as amended through St. 1990, c. 313.

Leary remained on § 111F leave until April 15, 2003, when the

chief of police (chief) removed him from paid injury leave

status and placed him on an unpaid leave of absence. Leary

believed the chief's action did not comply with the law, and

sought to have the town reinstate his § 111F benefits. In the

meantime, in July, 2003, Leary applied for accidental disability

retirement under G. L. c. 32, § 7. The board approved Leary's

application on January 30, 2004. His disability retirement

allowance became effective as of April 15, 2003, the last day

1

David Leary and the public employee retirement

administration commission.

2

that Leary received compensation in the form of his § 111F

benefits.

Notwithstanding his application for retirement and the

subsequent approval of that application, Leary continued to seek

payment of § 111F benefits from the town, specifically for the

period between April 15, 2003, and January 30, 2004. An

agreement for payment initially was reached but unraveled when,

on the advice of defendant public employee retirement

administration commission (PERAC), the board refused to change

Leary's effective retirement date from April 15, 2003, to

January 30, 2004. In 2006, Leary filed suit, seeking

enforcement of his agreement with the town.

In March, 2008, Leary and the town entered into a

settlement agreement, later reduced to a judgment, whereby the

town would pay Leary $44,424.47 in additional § 111F benefits to

cover the period from April 15, 2003, to January 30, 2004.

Pursuant to the agreement, the funds were placed in an escrow

account, with release to Leary "pending the outcome of Leary's

efforts to get the [board] and/or Commonwealth of Massachusetts,

either through its administrative agencies and/or judicial

system, to recalculate his retirement benefits based on Leary's

receipt of the additional Section 111F benefits." Leary

presented his case to the board; it again refused. Leary

appealed the board's decision to DALA2 and, following a hearing,

a DALA magistrate ordered Leary's retirement date to be

corrected to January 30, 2004, and his retirement allowance

recalculated accordingly. CRAB affirmed the DALA decision; a

judge of the Superior Court likewise affirmed CRAB's decision.

This appeal followed.

2. Discussion.3 General Laws c. 41, § 111F, governs leave

with pay status for police officers and firefighters injured in

the line of duty through no fault of their own. The statute

provides for payment until a recipient is either "retired or

pensioned" or "such incapacity no longer exists"; amounts

2

Leary also appealed to DALA the board's first refusal to

change his retirement date; the two cases later were

consolidated.

3

"We review CRAB's decision under a deferential standard

and will reverse only if its decision was based on an erroneous

interpretation of law or is unsupported by substantial

evidence." Foresta v. Contributory Retirement Appeal Bd., 453

Mass. 669, 676 (2009). See G. L. c. 30A, § 14(7).

3

payable under § 111F "shall be paid at the same times and in the

same manner as, and for all purposes shall be deemed to be, the

regular compensation of such police officer or fire fighter."

General Laws c. 32, § 7, provides accidental disability

retirement for qualified members in service. Leary's effective

retirement date under G. L. c. 32, § 7, is "the date . . . he

last received regular compensation for his employment in the

public service."4 G. L. c. 32, § 7(2), as amended through St.

2000, c. 123, §§ 23A, 24. The DALA magistrate, CRAB, and the

Superior Court judge each determined that the escrowed

supplemental § 111F payments constituted "regular compensation"

received by Leary, as provided by § 111F, such that Leary's

effective retirement date was required to be changed to January

30, 2004, to comport with the requirements of G. L. c. 32,

§ 7(2). We agree.

The town having concluded that Leary was entitled to the

additional § 111F benefits, the parties crafted a settlement

agreement memorializing that entitlement and the means of

payment. To avoid an apparent windfall, and to take into

account the board's role in recalculating Leary's retirement

benefit, the terms of the agreement include provisions for

either repayment to the board of any prior retirement amounts

incorrectly paid or reversion of the escrow funds to the town.

The agreement does not, however, vest the board with the

authority to veto Leary's entitlement to payment of the § 111F

funds.5 Thus, the board's position that Leary did not actually

"receive[]" the additional benefits under the terms of the

settlement agreement is unfounded.

4

Under the statute, an individual's effective retirement

date is determined by looking to whichever of the following

occurred last: the above noted date of last receipt of regular

compensation, the date the injury was sustained, or the date six

months prior to the filing of the written application. The

latter two do not apply here. See G. L. c. 32, § 7(2).

5

The settlement agreement states: "The Town agrees to pay

Leary the total amount of . . . ($44,424.47). This sum

represents the compensation owed by the Town to Leary pursuant

to the Town's Board of Selectmen's April 5, 200[5] vote

approving [G. L.] c. 41, § 111F benefits for April 15, 2003

through January 30, 2004 for Leary . . . ." The judgment

provides: "Judgment for the Plaintiff David S. Leary in the sum

of . . . $44,424.47 . . . , without interest or costs, and all

rights of appeal waived; and Judgment satisfied."

4

The board further argues that there is no explicit

authority permitting it to change a member's effective

retirement date. The claim is without merit. Nothing in the

language of G. L. c. 32, § 7(2), limits a retirement board's

ability to redetermine the effective retirement date and

recalculate retirement benefits if circumstances so require.

See, e.g., Blair v. Selectmen of Brookline, 26 Mass. App. Ct.

954 (1988) (accepting, without comment, a board's ability to

change an effective retirement date); G. L. c. 32,

§ 20[5][c][2], as appearing in St. 2000, c. 159, § 91 (allowing

a retirement board to correct "an error . . . in the records

. . . or an error . . . made in computing a benefit").6

Judgment affirmed.

Michael Sacco for Hull Retirement Board.

Terence E. Coles for David Leary.

6

We express no opinion whether an "error" was made in this

case, thereby triggering the provisions of G. L. c. 32,

§ 20(5)(c)(2).