Horseplay and Accidental Disability Retirement Katherine A. Hesse, Esq. October 1, 2019 MACRS Sheraton Springfield 1154760 © 2019 Murphy, Hesse, Toomey & Lehane LLP. All Rights Reserved. These materials are not legal advice and should not be relied upon as such.

Disability Retirement There are multiple types of disability benefits and different standards apply to each. Accidental disability (work-related) (Chapter 32 §7 of the Massachusetts General Laws) Ordinary Disability (Chapter 32 §6 of the Massachusetts General Laws) Workers compensation (Chapter 152 §26). Accidental Disability Retirement is our focus today and has a stricter standard relative to causation. 1154760 © 2019 Murphy, Hesse, Toomey & Lehane LLP. All Rights Reserved. These materials are not legal advice and should not be relied upon as such.

Key Qualifications for Accidental Disability Retirement The member must be unable to perform the essential duties of the job The inability to perform must be likely to be permanent The disability must be by reason of a personal injury sustained or a hazard undergone as a result of, and while in the performance of, the member’s duties At some definite place and time, and Without serious and willful misconduct on the member’s part 1154760 © 2019 Murphy, Hesse, Toomey & Lehane LLP. All Rights Reserved. These materials are not legal advice and should not be relied upon as such.

“While in the Performance” Historically has been read tightly: the employee must be actively engaged in employment duties. Anything outside of the actual employment duties is generally considered not to be “while in the performance”. 1154760 © 2019 Murphy, Hesse, Toomey & Lehane LLP. All Rights Reserved. These materials are not legal advice and should not be relied upon as such.

Boston Retirement Board v. Contributory Retirement Appeal Board 340 Mass. 109 (1959) Facts: 1959 Case, operating room nurse at Boston’s sanatorium was on her way home for lunch. The nurse fell while descending a flight of stairs in the sanatorium. A medical panel unanimously certified that she; Was permanently incapacitated Unable to perform her job function The injury was a result of the workplace accident. 1154760 © 2019 Murphy, Hesse, Toomey & Lehane LLP. All Rights Reserved. These materials are not legal advice and should not be relied upon as such.

Boston Retirement Board v. Contributory Retirement Appeal Board 340 Mass. 109 (1959) The Supreme Court found that because the nurse was on her way to lunch, she was not performing her duties when she was injured. “To say that a person who falls while descending a flight of stairs on her way to lunch sustains an injury ‘while in the performance’ of her duties would stretch the meaning of the statute beyond permissible limits”. 1154760 © 2019 Murphy, Hesse, Toomey & Lehane LLP. All Rights Reserved. These materials are not legal advice and should not be relied upon as such.

Murphy v. CRAB 460 Mass. 333 (2012) Facts: The Boston Herald published a series of articles sharply critical of Superior Court Judge Murphy. The Herald reporter discussed some of Judge Murphy’s alleged comments directed at victims. As a consequence of the publicity Judge Murphy began receiving hate mail and death threats. As a result of the threats, Judge Murphy began experiencing PTSD and depression and retired. 1154760 © 2019 Murphy, Hesse, Toomey & Lehane LLP. All Rights Reserved. These materials are not legal advice and should not be relied upon as such.

Murphy v. CRAB 463 Mass. 333 (2012) The Supreme Court found that Murphy was ineligible for §7 ADR benefits because he was not engaged in judicial work when opening and reading mail, even in his chambers. This is a continuation of the strict reading of the “while in the performance” requirement. 1154760 © 2019 Murphy, Hesse, Toomey & Lehane LLP. All Rights Reserved. These materials are not legal advice and should not be relied upon as such.

What does this have to do with “horseplay”? 1154760 © 2019 Murphy, Hesse, Toomey & Lehane LLP. All Rights Reserved. These materials are not legal advice and should not be relied upon as such.

Blanchette v. Marblehead Retirement Board DALA CR-08-491 Facts: Blanchette worked as a heavy machinery mechanic for the Marblehead DPW Highway Department. Blanchette was working on a hubcap, he threw it like a frisbee and jumped on it. “I want to smash it with my feet”. The hubcap slid out from under Blanchette, who fell to the ground, which resulted in injury and disability. 1154760 © 2019 Murphy, Hesse, Toomey & Lehane LLP. All Rights Reserved. These materials are not legal advice and should not be relied upon as such.

Blanchette v. Marblehead Retirement Board DALA CR-08-491 “the Petitioner was not in the performance of his duties as a mechanic. He was engaged in horseplay”. This is a DALA case, but the Massachusetts Court of Appeals has also denied ADR related to to horseplay. 1154760 © 2019 Murphy, Hesse, Toomey & Lehane LLP. All Rights Reserved. These materials are not legal advice and should not be relied upon as such.

Damiano v. CRAB 72 Mass. App. Ct. 259 (2008) Facts: While Damiano, a police dispatcher, was at work she stood up with the intention to use the restroom and the copy room. As Damiano stood up a police officer put her in a headlock in an ill-advised attempt at horseplay. Damiano fell, resulting in an injured wrist and elbow which prevented her from returning to work. 1154760 © 2019 Murphy, Hesse, Toomey & Lehane LLP. All Rights Reserved. These materials are not legal advice and should not be relied upon as such.

Damiano v. CRAB 72 Mass. App. Ct. 259 (2008) The Court of Appeals found that Damiano was injured because of horseplay by fellow employees and thus NOT injured in the performance of her duties. The court specifically states that her intent to use the bathroom had no bearing on its analysis. The sequence in which she anticipated visiting the ladies room or retrieving slips also was not pertinent to the analysis. 1154760 © 2019 Murphy, Hesse, Toomey & Lehane LLP. All Rights Reserved. These materials are not legal advice and should not be relied upon as such.

Damiano v. CRAB 72 Mass. App. Ct. 259 (2008) The reason her claim failed was because her disability does not arise from an injury sustained or a hazard undergone while in the performance of her job. Instead her injury was sustained as a result of ill-advised and unanticipated horseplay by a fellow employee. To permit her to receive ADR would stretch the meaning of the statutory “while in the performance” requirement beyond permissible limits”. 1154760 © 2019 Murphy, Hesse, Toomey & Lehane LLP. All Rights Reserved. These materials are not legal advice and should not be relied upon as such.

Train Employees – Horseplay Can Result In Serious Repercussions 1154760 © 2019 Murphy, Hesse, Toomey & Lehane LLP. All Rights Reserved. These materials are not legal advice and should not be relied upon as such.

Questions? 1154760 © 2019 Murphy, Hesse, Toomey & Lehane LLP. All Rights Reserved. These materials are not legal advice and should not be relied upon as such.

Quincy Boston Springfield Crown Colony Plaza 75-101 Federal Street One Monarch Place 300 Crown Colony Drive Boston, MA 02210 1414 Main Street Quincy, MA 02169 Suite 1310R Springfield, MA 01144 Tel: (617) 479-5000 Tel: (888) 841-4850 Fax: (617) 479-6469 1154760 © 2019 Murphy, Hesse, Toomey & Lehane LLP. All Rights Reserved. These materials are not legal advice and should not be relied upon as such.