Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Morales v. Contributory Retirement Appeal Board

Superior Court of Massachusetts, Suffolk

January 3, 2019

Victor MORALES
v.
CONTRIBUTORY RETIREMENT APPEAL BOARD et al.[1]

          MEMORANDUM AND ORDER ON CROSS MOTIONS FOR JUDGMENT ON THE PLEADINGS

          Douglas H. Wilkins, Justice of the Superior Court

          This appeal under G.L.c. 30A, § 14 is before me on cross motions by plaintiff Paul Morales ("Morales") and defendants, Contributory Retirement Appeal Board ("CRAB") and Lawrence Retirement Board ("LRB") (collectively, "Boards") for judgment on the pleadings. After LRB denied Morales’s application for disability retirement benefits, the Division of Administrative Law Appeals ("DALA") reversed, finding that the injury occurred while Morales was on duty. The Contributory Retirement Appeal Board ("CRAB") reversed, based upon its own assessment of the conflicting evidence. Mr. Morales timely appealed CRAB’s final decision to this Court.

          After hearing on December 14, 2017, Morales’s motion for judgment on the pleadings is ALLOWED, and the Boards’ cross motions are DENIED .

          BACKGROUND

          CRAB’s decision, dated July 7, 2017 ("CRAB Decision") found the following facts: Detective Victor Morales was hired as a police officer on November 5, 1987 by the Lawrence Police Department ("LPD"). On the morning of September 27, 2002, at about 8:50 a.m., Detective Morales slipped and fell, injuring his shoulder, while entering the police station.

          Here, CRAB’s findings deviate from the prior findings of the Administrative Law Judge who heard the evidence during an evidentiary hearing at the Division of Administrative Law Appeals ("DALA"). CRAB found the following. At some point after a new chief of police arrived in 1995 or 1996, some detectives’ work hours were shifted an hour earlier to provide better coverage and overlap with the uniformed officers’ night shifts. At some point Morales’ regular hours were also shifted from 9:00 to 5:00 p.m. to 8:00 to 4:00 p.m. Morales was actively involved in investigating the murder of a teenager in the Torres family and had frequent conversations with the boy’s father, Mr. Torres. "We cannot, however, agree that there is substantial evidence to support a finding that Morales was engaged in the specific work duty of interviewing a homicide victim’s father on the morning of September 27, 2002 ... We are also skeptical of the ability of each of these officers to recall, in 2012 and 2015, Morales’ assigned work hours for the specific date of September 27, 2002."

         CRAB adopted the following DALA findings regarding subsequent events. At around noon on September 27, 2002, Detective Morales went to the emergency room due to the pain in his shoulder from the morning’s accident. He was examined by Doctor James Smith and diagnosed with a potential rotator cuff tear in his left shoulder.

          After the accident, Detective Morales continued to work as a detective in the LPD for eight years. He had two surgeries to address shoulder pain.

          On August 31, 2010, Detective Morales ceased working as a police officer because of a recurring pain associated with his shoulder injury. His injury had limited his range of motion in his left arm and caused him significant pain if he attempted to move his arm to the limit of his shoulder’s mobility. As a consequence, he could not perform the duties of a police officer any longer.

          On October 12, 2011, Chief John Romero submitted an application to involuntarily retire Detective Morales for superannuation. The LRB ruled in favor of Chief Romero, involuntarily retiring Detective Morales for superannuation effective December 29, 2011, while leaving the decision to file for accidental disability retirement still open to Detective Morales. In considering whether involuntary retirement would prejudice Morales’s rights, the LRB set forth its "view of the statute ... that Chief Romero has the right to seek Morales’ involuntary retirement, and since he qualifies for such a retirement and is not in any way prejudiced or precluded from seeking an accidental disability retirement, the Board has no basis to take any action other than to grant Chief Romero’s Involuntary Retirement Application ..." A.R. 101-02.

          On January 4, 2012, Detective Morales filed an application for accidental disability retirement, claiming that the injury to his shoulder had made him unable to perform the duties of a detective or police officer. In the application, he described the injury as occurring "during the day shift" and stated that "while running up [a] flight of stairs, [he] lost footing, grabbed railing with left hand to break fall, resulting in hyper extending left shoulder, felt pop, burn." The application was signed under the penalties of perjury.

          In June 2012, Detective Morales was examined separately by a panel of orthopedic surgeons composed of Victor Conforti, M.D., Ronald Rosenthal, M.D. and George Hazel, M.D. In their reports, the medical panel determined that Detective Morales’s injury to his left shoulder was disabling and likely to be permanent, and might be the natural and proximate result of the personal injury he sustained in 2002. The doctors concluded that the injury resulted in limited mobility at the shoulder joint and pain at the end ranges of motion of his left shoulder. On August 29, 2012, the LRB voted to award accidental disability retirement to Detective Morales. On September 28, 2012, PERAC remanded the matter to the Board, because it appeared that Detective Morales was not in the performance of his duties as he was not on duty when the injury occurred, according to the detective’s "9:00 a.m./5:00 p.m." description of his hours given in his injury report.

          On October 31, 2012, the LRB conducted a hearing. The Board considered affidavits from Captain Michael Molchan and Police Chief John Romero in which they declared that Detective Morales worked an 8-4 shift rather than a 9-5 shift. On November 28, 2012, the Board again approved Detective Morales’s accidental disability retirement application. On January 10, 2013, PERAC again remanded Detective Morales’s application for accidental disability retirement.

          On January 29, 2013, the LRB voted to deny accidental disability retirement due to PERAC’s remands and Detective Morales’s failure to produce documentary evidence of his work shift.

          The record contains a letter dated February 13, 2013, by which Mr. Morales appealed the LRB’s decision. The findings below stated that the appeal was timely filed on February 22, 2013.

         The matter was referred for evidentiary hearing before a DALA magistrate. DALA issued its decision on October 23, 2015 ("DALA Decision"). The DALA Decision found that Morales was "traveling from one job duty as a Detective in the Lawrence Police Department to another" when the injury occurred and reversed LRB’s denial Mr. Morales’s application for disability retirement benefits. CRAB adopted findings 1, 2 and 6-16 of the DALA decision, but declined to adopt findings 3-5 of the DALA Decision as its own. CRAB "conclude[d] that Morales has not proven by a preponderance of the evidence that he was engaged in a work activity at the time he incurred the injury that led to his disability." It found that the injury did not occur while Morales was on duty, added a discussion of the issues, and affirmed the LRB decision on July 7, 2017. CRAB stated that the stipends Mr. Morales received under the CBA for Student Activities Advisor failed to qualify as compensation for "additional services" under G.L.c. 32, § 1, because the service was "not adequately" or "not sufficiently set forth in his annual contract, as required by 807 CMR 6.02(1)." AR 262, 267, 271.

          DISCUSSION

          I.

          This court reviews CRAB’s decision under the standard set out in G.L.c. 30A, § 14(7). See Megiel-Rollo v. Contributory Ret. Appeal Bd.,81 Mass.App.Ct. 317, 320 (2012). The Court applies "a deferential standard and ... will reverse only if [CRAB’s] decision was based on an erroneous interpretation of law or is unsupported by substantial evidence." Id., quoting Foresta v. Contributory Ret. Appeal Bd., 453 Mass. at 676. It may reverse, remand, or modify a CRAB decision if "the substantial rights of any party may have been prejudiced" by such an error in the decision. G.L.c. 30A, § 14(7). The moving party bears the burden of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.