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

2. 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.
© Murphy, Hesse, Toomey & Lehane LLP. All Rights Reserved. These materials are not legal advice and should not be relied upon as such.

3. 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
© Murphy, Hesse, Toomey & Lehane LLP. All Rights Reserved. These materials are not legal advice and should not be relied upon as such.

4. “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”.
© Murphy, Hesse, Toomey & Lehane LLP. All Rights Reserved. These materials are not legal advice and should not be relied upon as such.

5. 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.
© Murphy, Hesse, Toomey & Lehane LLP. All Rights Reserved. These materials are not legal advice and should not be relied upon as such.

6. 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”.
© Murphy, Hesse, Toomey & Lehane LLP. All Rights Reserved. These materials are not legal advice and should not be relied upon as such.

7. 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.
© Murphy, Hesse, Toomey & Lehane LLP. All Rights Reserved. These materials are not legal advice and should not be relied upon as such.

8. 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.
© Murphy, Hesse, Toomey & Lehane LLP. All Rights Reserved. These materials are not legal advice and should not be relied upon as such.

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

10. Blanchette v. Marblehead Retirement Board
DALA CR
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.
© Murphy, Hesse, Toomey & Lehane LLP. All Rights Reserved. These materials are not legal advice and should not be relied upon as such.

11. Blanchette v. Marblehead Retirement Board
DALA CR
“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.
© Murphy, Hesse, Toomey & Lehane LLP. All Rights Reserved. These materials are not legal advice and should not be relied upon as such.

12. 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.
© Murphy, Hesse, Toomey & Lehane LLP. All Rights Reserved. These materials are not legal advice and should not be relied upon as such.

13. 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.
© Murphy, Hesse, Toomey & Lehane LLP. All Rights Reserved. These materials are not legal advice and should not be relied upon as such.

14. 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”.
© Murphy, Hesse, Toomey & Lehane LLP. All Rights Reserved. These materials are not legal advice and should not be relied upon as such.

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

17. Quincy Boston Springfield
Crown Colony Plaza Federal Street One Monarch Place
300 Crown Colony Drive Boston, MA Main Street
Quincy, MA Suite 1310R Springfield, MA
Tel: (617)
Tel: (888)
Fax: (617)
© Murphy, Hesse, Toomey & Lehane LLP. All Rights Reserved. These materials are not legal advice and should not be relied upon as such.