50 Mass. App. Ct. 16 | Mass. App. Ct. | 2000
In August, 1977, the plaintiff, a patrolman in the town of Brookline, was granted an accidental disability retirement pursuant to G. L. c. 32, § 7. He sought reinstatement in September, 1997, under G. L. c. 32, § 8. After examination and issuance of a certificate by a medical panel, approval of the medical panel certificate by the Public Employee Retirement Administration Commission (PERAC), and transmission by the Brookline retirement board of the panel’s certificate to the
A Superior Court judge entered a preliminary injunction ordering the “Brookline appointing authority [to] preserve one of its patrolman’s vacancies until the merits of th[e] dispute are resolved.” Subsequently, on cross motions for summary judgment, a second Superior Court judge allowed the plaintiff’s motion, and entered a judgment declaring that “the plaintiff has a right to immediate reinstatement as a police patrolman,” and ordered the town officials to reinstate him forthwith. The town of Brookline has appealed from that judgment. We affirm.
1. The town’s main contention is that PERAC and the medical panel appointed by it employed incorrect legal standards in determining whether the plaintiff was eligible for reinstatement.
An analysis of G. L. c. 32, § 8, and the regulations promulgated thereunder is in order. Before public employees retired for disability under §§ 6 and 7 of G. L. c. 32 may be reinstated, they must receive a certificate from a regional medical panel appointed by PERAC. See G. L. c. 32, § 8(2)(a). In 1996, § 8 was amended by c. 306 and c. 427 of the Acts of 1996.
On December 17, 1996, shortly after the effective dates of c. 306 and c. 427 of the Acts of 1996, PERAC sent a memorandum to the retirement boards containing the following first paragraph:
“G. L. c. 32, § 8(2), as amended by chapter 306 and chapter 427 of the acts of 1996, allows a member to be re*18 examined for the purpose of determining whether he or she can perform the essential duties of his or her position. At its first meeting, the Public Employee Retirement Administration Commission determined that while guidelines for determining what constitutes the essential duties of a position are being developed, the standard in effect prior to the amendments would be utilized. Thus, requests for re-examination, whether made by a retiree or a retirement board, are being dealt with in the same manner as prior to the amendment.”
We therefore must decide whether, contrary to the town’s contention, PERAC was permitted to determine that the preamendment standards for medical examinations could remain in effect pending the issuance of new regulations by PERAC under the 1996 amendments to G. L. c. 32, § 8(2).
We reach this conclusion for the following reasons. While St. 1996, c. 306, made significant changes in § 8 that were self-executing — e.g., appointing authorities no longer had discretion as to reinstatement because retired members cleared by a
Moreover, in the interim, the existing regulations (dated July 1, 1993) to a large extent furthered the purposes of c. 306 and were not in contravention thereof. The existing regulations required that the medical panel be provided with a description of “the member’s principal duties and responsibilities” and “any particular physical or mental requirements prescribed for the position.” See §§ 10.07(l)(a), 10.07(2)(b), 10.08,10.16 of the 1993 regulations.
We also note that St. 1996, c. 306, which replaced the commissioner of public employee retirement with PERAC, specifically provided, among other things, in § 55,
2. The town has raised two other points. It claims that, because the plaintiff has not completed a training program under
3. The town also claims that the motion judge erred in ruling that the town did not have an appeal under G. L. c. 32, § 16(4). The town had filed an appeal to the Contributory Retirement Appeal Board (CRAB) under G. L. c. 32, § 16(4), before the plaintiff commenced this action. The town claims the judge erred in not deferring to CRAB. The plaintiff contends that CRAB did not have authority to decide the appeal. We need not decide this issue, because here there is no dispute about the facts, and the issues before us involve merely questions of law. In such circumstances, even if CRAB had jurisdiction, exhaustion of administrative remedies would not be required. Balcam v. Hingham, 41 Mass. App. Ct. 260, 267 (1996), and cases cited.
Since the plaintiff has not filed a cross appeal, we do not deal with any of the issues concerning the date on which reinstatement should take effect. The plaintiff also cites no authority for the awarding of legal fees, and his request for such fees is denied.
Judgment affirmed.
The changes to § 8 made by c. 427 of the Acts of 1996 are not relevant to our decision.
Upon receipt of such finding from a retirement board, the appointing authority had discretion whether to reinstate the applicant.
The Superior Court judge did not rule on tins question. He noted that the 1996 amendments suggested a more extensive evaluation for members retired more than two years, pointing out that in twenty years a member may have acquired other serious medical problems which would disqualify him from reinstatement. He based his decision on the fact that the only medical issue in the case was the plaintiff’s back and “[n]othing in the summary judgment file . . . suggests that other medical or psychological problems are at issue here.” The town urges that his ruling improperly shifts to the town the burden of identifying specific medical problems and bringing them to the attention of the medical panel in order to trigger the broad evaluation mandated by c. 306. It claims the town is not in a position to have independent knowledge of its retired employees’ latent medical conditions. Since we base our decision on different grounds (an appellate court may affirm a judgment on grounds other than those relied on by the Superior Court judge), we need not comment on the town’s claim.
PERAC later — eleven months after it had submitted the certificate to the Brookline retirement board — and after the parties had filed their briefs and the judge had held a hearing on the cross motions for summary judgment, in a letter asked the Brookline police chief for additional information. This letter was not presented to the judge prior to his decision, nor included with the papers submitted with a motion filed on the date of his decision in which the defendant sought to file additional papers. Accordingly, we do not consider the letter.
Although the «statute requires PERAC to issue regulations for ordinary disability retirement, the statutory scheme implies that regulations are also required for accidental disability retirement and subsequent reinstatement. This interpretation is in accordance with PERAC’s practice.
The section was also amended by St. 1996, c. 427, in a manner not here relevant.
That statute, as appearing in St. 1987, c. 697, § 8, provides in relevant part: “If a permanent employee who has become separated from his position because of disability shall be subsequently capable of employment as determined pursuant to section eight of chapter thirty-two . . . such employee shall be placed in a position in the same or similar title in the department from which he was separated or any other department prior* to the appointment from any civil service list; provided, however, that in the event that such placement of such employee occurs after a period of time greater than five years from the date of such separation . . . such placement right shall be subject to the completion by such employee of a retraining program established by the appointing authority, and approved by the personnel administrator.”
