Burke v. Contributory Retirement Appeal Board
Burke v. Contributory Retirement Appeal Board
Opinion of the Court
The plaintiff, an applicant for accidental death benefits under G. L. c. 32, § 9(1), appeals from a judgment affirming the adverse decision of the Contributory Retirement Appeal Board (board). The plaintiffs husband,
In 1982, Burke died of a heart attack, and the plaintiff sought accidental death benefits as a surviving spouse under
Nothing in Namay v. Contributory Retirement Appeal Bd., 19 Mass. App. Ct. 456 (1985), was meant to undermine the statutory requirement that accidental death benefits are
There is no question on the record that Officer Burke suffered from serious cardiovascular disease at the time of his retirement. Had his application for accidental disability retirement been predicated on cardiovascular disease, the retirement board would have had to determine whether the cardiovascular disease was work related. It was not called upon to do so, however, because Officer Burke was retired instead for an unrelated, disabling condition. The heart attack came when Officer Burke was no longer in active service. Accidental death benefits are normally afforded only to survivors of employees who, at the time of death, were in active service. By the last sentence of § 9(1),
For the reasons stated by the judge, there was no error in the board’s engagement of Dr. Tifft under G. L. c. 32, § 16(4), third par., or in accepting his opinion over that of Dr. Sanella. Nothing in Robinson v. Contributory Retirement Appeal Bd., 20 Mass. App. Ct. at 640, required the board to articulate reasons for preferring one medical opinion over another.
Judgment affirmed.
The answer was, “Back injury - Totman Road - Day Shift - Lowell, Mass. - 7-29-75.” On that day he fell through a window, catching his foot and twisting his back. The second incident was in 1978, when he reinjured his back while dragging an intoxicated prisoner.
General Laws c. 32, § 6(3)(c), as amended by St. 1973, c. 543, authorized the panel members to conduct independent examinations of applicants for accidental disability retirement and to certify their findings separately.
The quoted words are those of G. L. c. 32, § 6(3) (a), both then and now. The physicians’ certificates were made on a standard form that called for a “yes” or “no” answer to the quoted language. See Malden Retirement Bd. v. Contributory Retirement Appeal Board, 1 Mass. App. Ct. 420, 422 n.3 (1973).
This was the certificate of Dr. Leonard Hall. The certificate of Dr. Denis King mentioned only the back condition. On a separate form (“Physician’s report”), however, Dr. King listed, in addition to the back condition, hypertension and arteriosclerosis as “subjective and objective symptoms of which said person [i.e., Burke] complains,” and stated that he was incapacitated “by reason of the above-described conditions.” Dr. King added the “s” at the end of “condition”; the physician’s report form employs the singular.
Section 9(1) goes on to state, “at some definite place and at some definite time”; but, in keeping with the apparent intention of the Legislature when, by St. 1945, c. 658, § 1, it changed “accident” to “personal injury” in §§ 7(1) and 9(1), the latter section is held not to exclude injuries of a progressive or cumulative nature caused by conditions at work. See Baruffaldi v. Contributory Retirement Appeal Bd., 337 Mass. 495, 500-501 (1958); Zavaglia v. Contributory Retirement Appeal Bd., 345 Mass. 483, 485-486 (1963). No corresponding change was made in § 6(3), apparently by inadvertence.
“Board” refers, in the first instance, to Lowell’s retirement board. Where an appeal is taken, it refers to the Contributory Retirement Appeal Board. See Namay v. Contributory Retirement Appeal Bd., 19 Mass. App. Ct. 456, 461-462 (1985).
Because the board had made no finding, positive or negative, as to the requisite causal relationship, 19 Mass. App. Ct. at 458, the case was remanded for further fact finding. Namay v. Contributory Retirement Appeal Bd., supra at 463-464.
“The provisions of this section shall apply although such member had previously been retired for accidental disability if the board finds that such death was the natural and proximate result of the injury or hazard on account of which such member was retired.”
The Robinson case involved a rejection by the Contributory Retirement Appeal Board of uncontradicted expert medical testimony.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.