309 Mass. 534 | Mass. | 1941
This petition for certiorari is brought by the town clerk of Belmont and clerk of the selectmen and registrars of voters of said town to quash the proceedings of the respondents, constituting the contributory retirement appeal board under G. L. (Ter. Ed.) c. 32, § 37C (7), as appearing in St. 1938, c. 439, § 2, denying his application to be retired under G. L. (Ter. Ed.) c. 32, § 31, inserted by St. 1936, c. 318, § 1, and amended by St. 1937, c. 336, § 16, on account of permanent disability resulting from an accident or from undergoing a hazard peculiar to his employment. The petitioner appealed from an order dismissing the petition.
We assume in favor of the petitioner that the appeal is properly here. Codman v. Assessors of Westwood, ante, 433. The statutory provision, G. L. (Ter. Ed.) c. 32, § 37C (7), as appearing in St. 1938, c. 439, § 2, that the decision of the respondent board “shall be final and binding upon the board of retirement involved and upon all other parties in interest” does not preclude the petitioner from maintaining a petition for certiorari to quash proceedings if shown to have been vitiated by errors of law committed by the respondent board. Swan v. Justices of the Superior Court, 222 Mass. 542, 544. Mayor of Medford v. Judge of the First District Court of Eastern Middlesex, 249 Mass. 465, 468. Wiggin v. National Fire Ins. Co. 271 Mass. 34, 36. Whitney v. Judge of the District Court of Northern Berkshire, 271 Mass. 448, 459. Williams v. Contributory Retirement Appeal Board, 304 Mass. 601. Farrell v. Mayor of Revere, 306 Mass. 221. But questions of fact are not open, except in unusual cases, of which the instant case is not one. Commissioner of Public Works of Boston v. Justice of the Municipal Court of the Dorchester District of Boston, 228 Mass. 12. Byfield v. Newton, 247 Mass. 46. Walsh v. District Court of Springfield, 297 Mass. 472.
The matter was submitted to the respondent board upon the written statements of the petitioner, of two physicians and of the chairman of the selectmen, and this evidence was
A member of a city or town retirement system who has been disabled on account of an accident or hazard peculiar
The petitioner contends that, upon the facts which have been recited and which were accepted as true by the respondent board, there was error of law in not finding that his disability was due to an accident or hazard and in denying his application for retirement.
A member of a city or town retirement system may be retired for superannuation, for ordinary disability, or for accidental disability. G. L. (Ter. Ed.) c. 32, §§ 29, 30, 31, as amended. The same classification of benefits appears in the State and county retirement systems. G. L. (Ter. Ed.) c. 32, §§ 4, 4C, 4D, 23, 24, 25, as amended. The petitioner does not contend that he is entitled to be retired for superannuation or for ordinary disability, but bases his case entirely upon the proposition that the facts proved show that his application should have been allowed on the ground that he was disabled by accident or hazard. Consequently, we deal with this case as the Superior Court and the parties have dealt with it and confine our attention to the single issue presented.
Mere disability incurred by a member while in the employ of a town is not sufficient to entitle him to retirement under
The terms “accident” and “hazard” appearing in § 31 must be given their ordinary meaning and the scope of both words is limitéd to accidents or hazards that are peculiar to the employment. “Hazard” has been defined in the State retirement system as “exposure to severe and extraordinary climatic conditions, escaping gases, bursting of gas mains, explosions, infectious diseases and such other circumstances as the board may find could not have been reasonably anticipated by an employee in the discharge of his regular duties,” G. L. (Ter. Ed.) c. 32, § 1, inserted by St. 1938, c. 439, § 1, but the statutory retirement system of counties and that of cities and towns contain no definition of this term. G. L. (Ter. Ed.) c. 32, § 20, inserted by St. 1936, c. 400, § 1, as most recently amended by St. 1938, c. 464, § 3. G. L. (Ter. Ed.) c. 32, § 26, inserted by St. 1936, c. 318, § 1, as amended by St. 1938, c. 464, § 4. These three statutory retirement systems together with that for teachers are
An accident is an unexpected, untoward event which happens without intention or design, and a hazard is a danger or risk lurking in a situation which by chance or fortuity develops into an active agency of harm. Hatch v. United States Casualty Co. 197 Mass. 101. Bohaker v. Travelers Ins. Co. 215 Mass. 32. Doyle’s Case, 256 Mass. 290. Cusick’s Case, 260 Mass. 421, 422. Henderson v. Travelers Ins. Co. 262 Mass. 522. Hughes’s Case, 274 Mass. 540. Sontag v. Galer, 279 Mass. 309. Sheehan v. Aetna Life Ins. Co. 296 Mass. 535. Dow v. United States Fidelity & Guaranty Co. 297 Mass. 34.
There is no event described in the record that could properly be regarded as an accident or hazard peculiar to the employment of the petitioner. His present condition is apparently due to the fatigue and strain resulting from long hours of effort over a long period of years which has gradually undermined his strength and rendered him unfit for the further performance of his duties. The effect of his work upon his health was progressive and cumulative. His work, especially since January, 1936, consisted in the performance of the clerical duties usually required by the offices which he held, to the performance of which the petitioner seems to have applied himself assiduously. There was nothing to show that assistance would not have been furnished by the town if it was in fact required or that the burden might not have been lightened if the petitioner had not attempted to fill so many positions. "Whether his strength and energy would have been conserved if the petitioner had adopted another course does not aid us in determining whether the rec
The petitioner contends that there is an analogy between the instant case and those arising under the workmen’s compensation act where death was caused by an injury to the heart resulting from overexertion or overwork. Brightman’s Case, 220 Mass. 17. Fisher’s Case, 220 Mass. 581. Madden’s Case, 222 Mass. 487. Jarvis’s Case, 274 Mass. 305. But these cases are plainly distinguishable. Compensation was allowed where it was found that an injury to the heart resulted from the laborious nature of the specific acts in which the employee was engaged, immediately preceding the heart attack. Here the petitioner for some years before the onset of his disability had relinquished all his other official duties except three clerkships calling for the performance of clerical work which did not require unusual physical strength or extraordinary mental effort. Doyle’s Case, 269 Mass. 310. In the next place, the workmen’s compensation act requires an injury but it does not require a personal injury by accident, Crowley’s Case, 287 Mass. 367, Smith’s Case, 307 Mass. 516, while under said § 31 retirement allowances are based exclusively upon disability resulting from accident or hazard peculiar to the employment. Moreover, the retirement system for cities and towns puts in different classes members who are suffering from ordinary disabilities and those who have incurred an accidental disability. That distinction must be observed. One who does not .trace his disability to an accident or hazard peculiar to his employment is not entitled to the benefits provided for those whose incapacity has been so caused. Lee’s Case, 240 Mass. 473. Cinmino’s Case, 251 Mass. 158. Robinson’s Case, 292 Mass. 543. Rozek’s Case, 294 Mass. 205. Belezarian’s Case, 307 Mass. 557.
Petition dismissed.