12 Mass. App. Ct. 306 | Mass. App. Ct. | 1981
This appeal presents a single question of law: may a former State employee be deprived of the right to apply for an accidental disability pension solely because he had previously applied for and received early retirement payments? We answer the question in the negative and affirm the judgment of the Superior Court which remanded the case to the State Retirement Board for further proceedings.
Joseph Olson, the applicant, served as a boatswain with the Department of Natural Resources for over twenty-four years. On July 11, 1972, after a day of strenuous duty in Boston harbor, he suffered a myocardial infarction (heart attack). He filed a “Notice of Injury” form on September 7, 1972, within the ninety days required by G. L. c. 32, § 7(1). He took approximately a year of sick leave and then filed for superannuation retirement on April 23, 1973, to be
On January 9, 1975, Olson applied for accidental disability retirement, claiming that his heart condition had rendered him “totally and permanently incapacitated for further duty ... by reason of a personal injury sustained or a hazard undergone as a result of, and while in the performance of, his duties” on July 11,1972. G. L. c. 32, § 7(1), as appearing in St. 1945, c. 658, § l.
The accidental disability provision applies only to a “member in service,” a term defined in G. L. c. 32, § 3(1) (o)(i): “Any member who is regularly employed in the performance of his duties .... [T]he status of a mem
In Gannon v. Contributory Retirement Appeal Bd., 338 Mass. 628, 632 .(1959), a ease with similar facts, the court read G. L. c. 32, § 3(1)(c),
Although we would reach the same result in any event, we feel we must answer the plaintiff’s argument, pressed so vigorously before the CRAB, the Superior Court, and this court, that to allow a person to apply for accidental disability at any time, regardless of his status at the time of application, would introduce such an element of uncertainty into the system as to jeopardize its fiscal stability and even the
Judgment affirmed.
The section reads, in relevant part: “Any member in service . . . who becomes totally and permanently incapacitated for further duty before attaining the maximum age for his group by reason of a personal injury sustained or a hazard undergone as a result of, and while in the performance of, his duties at some definite place and at some definite time on or after the date of his becoming a member . . . , upon his written application on a prescribed form filed with the board . . . shall be retired for accidental disability .... Except as provided for in subdivision (3) of this section, no such retirement shall be allowed unless such injury was sustained or such hazard was undergone within two years prior to the filing of such application or, if occurring earlier, unless written notice thereof was filed with the board by such member or in his behalf within ninety days after its occurrence.”
“No description of a person having any rights or privileges under the provisions of sections one to twenty-eight inclusive, such as member in service, member inactive, beneficiary or otherwise, shall serve to deprive him of any such rights or privileges. A member shall retain his membership in the system so long as he is living and entitled to any present or potential benefit therein.”