Ouellette v. Contributory Retirement Appeal Board, et al. (Lawyers Weekly No. 11-125-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-291 Appeals Court JACQUELINE OUELLETTE vs. CONTRIBUTORY RETIREMENT APPEAL BOARD & others.[1] No. 13-P-291. Suffolk. December 9, 2013. – September 30, 2014. Present: Grainger, Brown, & Carhart, JJ. Public Employment, Accidental disability retirement, Retirement, Retirement benefits. Public Employee Retirement Administration Commission. Contributory Retirement Appeal Board. Retirement. Administrative Law, Agency’s interpretation of statute. Words, “Member in service.” Civil action commenced in the Superior Court Department on December 3, 2009. The case was heard by Bonnie H. MacLeod, J., on a motion for judgment on the pleadings. John M. Becker for the plaintiff. Kirk G. Hanson, Assistant Attorney General, for Contributory Retirement Appeal Board & another. BROWN, J. At issue in this appeal is whether the Contributory Retirement Appeal Board (CRAB) properly concluded that the accidental disability retirement allowance of Jacqueline Ouellette was subject to the statutory cap set forth in G. L. c. 32, § 7(2)(a)(ii). Background. Ouellette worked for the city of Haverhill as a police officer from January, 1981, until December 5, 2003. On March 3, 2004, the Public Employee Retirement Administration Commission (PERAC) approved Ouellette’s application, submitted through the Haverhill retirement board (board), for a voluntary superannuation (regular) retirement, effective December 31, 2003. See G. L. c. 32, § 5. On August 14, 2005, the plaintiff applied for an accidental disability retirement allowance, claiming posttraumatic stress disorder stemming from two incidents that occurred in November, 2003. After two medical panel reviews, PERAC unanimously certified that Ouellette satisfied all the statutory criteria for accidental disability retirement.[2] See G. L. c. 32, § 7(1). On February 27, 2008, upon granting Ouellette’s request for accidental disability retirement, effective February 14, 2005, PERAC imposed, pursuant to G. L. c. 32, § 7(2)(a)(ii), a seventy-five percent cap on her disability retirement allowance. General Laws c. 32, § 7(2)(a)(ii), as appearing in St. 1987, c. 697, § 33, provides in pertinent part that “for any employee who was not a member in service on or before January [1, 1988,] or who has not been continuously a member in service since that date, the total yearly amount . . . as determined in accordance with the provisions of clause (i) shall not exceed seventy-five percent of the annual rate of regular compensation as determined in this paragraph . . . . “ PERAC reasoned that the plaintiff was not a member in service continuously until […]
Categories: News Tags: 1112514, Appeal, Board, Contributory, Lawyers, Ouellette, Retirement, Weekly
Commonwealth v. Douglas (and five companion cases) (Lawyers Weekly No. 11-124-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12-P-1992 Appeals Court COMMONWEALTH vs. JASON DOUGLAS (and five companion cases[1]). No. 12-P-1992. Suffolk. January 13, 2014. – September 30, 2014. Present: Cypher, Rubin, & Hines, JJ.[2] Firearms. Constitutional Law, Search and seizure. Search and Seizure, Motor vehicle, Threshold police inquiry, Protective frisk. Evidence, Firearm. Threshold Police Inquiry. Practice, Criminal, Motion to suppress. Indictments found and returned in the Superior Court Department on September 28, 2011. Pretrial motions to suppress evidence were heard by Janet L. Sanders, J. An application for leave to prosecute an interlocutory appeal was allowed by Robert J. Cordy, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. Elisabeth Martino, Assistant District Attorney (Joseph Janezic, Assistant District Attorney, with her) for the Commonwealth. Michael Tumposky for Jason Douglas. Daniel R. Katz for Wayne Steed. CYPHER, J. This is an appeal by the Commonwealth after a single justice of the Supreme Judicial Court allowed the Commonwealth’s petition under Mass.R.Crim.P. 15, as appearing in 422 Mass. 1501 (1996). In ruling on the defendants’ motions to suppress, a judge in the Superior Court held that the seizure by police officers of a firearm found under a passenger’s seat during a “patfrisk” of the interior of a motor vehicle was impermissible because, although the stop of the vehicle was justified, the police had exceeded the permissible scope of the search when they looked under the passenger’s seat before the occupants returned to the vehicle. Specifically, the judge reasoned that “[a]ny suspicion which might have been prompted by any movement (or lack thereof) by the car’s occupants was dispelled by the removal and pat frisk of each individual’s person.”[3] We reverse the order allowing the motions to suppress. 1. Standard of review. ”[W]e accept the motion judge’s subsidiary findings of fact absent clear error.” Commonwealth v. Sinforoso, 434 Mass. 320, 321 (2001), quoting from Commonwealth v. Sanna, 424 Mass. 92, 97 (1997). ”We review de novo the judge’s application of constitutional principles.” Commonwealth v. Martin, 467 Mass. 291, 301 (2014). We must assess the reasonableness of a police officer’s actions based upon the “circumstances confronting the officer in the field, not those facing the judge in the tranquility of the courtroom.” Commonwealth v. Dedominicis, 42 Mass. App. Ct. 76, […]
Schussel, et al. v. Commissioner of Revenue (Lawyers Weekly No. 11-123-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-876 Appeals Court GEORGE SCHUSSEL & another[1] vs. COMMISSIONER OF REVENUE. No. 13-P-876 Suffolk. June 4, 2014. – September 30, 2014. Present: Graham, Meade, & Fecteau, JJ. Taxation, Appellate Tax Board: findings, Income tax, Gross income. Words, “Tax-related.” Appeal from a decision of the Appellate Tax Board. Francis J. DiMento for the taxpayers. John M. Stephan, Assistant Attorney General, for Commissioner of Revenue. GRAHAM, J. This is an appeal from an Appellate Tax Board (board) decision upholding the denial by the Commissioner of Revenue (commissioner) of a request for an abatement of double taxes assessed to George and Sandra Schussel (Schussels) for filing false or fraudulent income tax returns for the calendar years 1993, 1994, and 1995 (tax years at issue). The case presents three issues: first, whether the board erred as a matter of law in upholding the commissioner’s double tax assessment based on the Schussels’ false or fraudulent filings; second, whether the Schussels were entitled to amnesty from the double tax assessment; and third, whether the board erred as a matter of law in ruling that the seven-year look-back period for nonfiling taxpayers does not apply to the Schussels. We affirm. Background. The facts are taken from the board’s findings of fact and report. George[2] received his bachelor’s degree from the University of California in 1961. He attended graduate school at Harvard University, where he earned a master’s degree and Ph.D. in 1966. Sandra, who was born and raised in Lynn, attended the Peter Brent Brigham Hospital nursing school in Boston and graduated in 1962. She practiced as a registered nurse at The Children’s Hospital in Boston for six months before leaving to begin work as a flight attendant for American Airlines. The Schussels met in 1964 and were married the following year. They lived in Cambridge while George completed his education at Harvard. After George became employed, the couple relocated several times. The couple lived in New Jersey when their first daughter was born in 1970. Later that year, the Schussels moved back to Massachusetts, and George secured a job at American Mutual Insurance Company. In 1971, the family moved to Lynnfield. In 1979, George founded his own company, Digital Consulting, Inc. (DCI), which he incorporated in Massachusetts. DCI organized, promoted, and conducted trade shows and conferences that were designed to […]
Commonwealth v. Holbrook (Lawyers Weekly No. 11-122-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12-P-1881 Appeals Court COMMONWEALTH vs. CLIFTON HOLBROOK. No. 12-P-1881. Suffolk. June 5, 2014. – September 26, 2014. Present: Cohen, Carhart, & Maldonado, JJ. Indecent Assault and Battery. Practice, Criminal, Motion to suppress, Instructions to jury. Intent. Indictment found and returned in the Superior Court Department on November 12, 2008. A pretrial motion to suppress evidence was heard by Frank M. Gaziano, J., and the case was tried before Thomas A. Connors, J. William A. Korman for the defendant. Donna Jalbert Patalano, Assistant District Attorney, for the Commonwealth. COHEN, J. After a Superior Court jury trial, the defendant was convicted of indecent assault and battery of a child under the age of fourteen, arising from an incident involving his five year old grandniece. On appeal, the defendant makes the following claims: (1) his motion to suppress statements made during his police interview should have been allowed because he was intoxicated at the time he waived his Miranda rights; (2) it was error to deny his motion for a required finding of not guilty because he was only a passive recipient of the indecent touching and did not intend for it to happen; and (3) the judge erred in instructing the jury as to how the element of intent could be satisfied. We affirm. 1. Motion to suppress. The defendant waived his Miranda rights after having been informed of them twice — first at booking and again at the beginning of the recorded interview. He affirmed that he understood each of the rights and initialed an acknowledgment. When asked if he was “under the influence of alcohol or any drugs right now,” the defendant responded in the negative. He now argues that, in fact, he was impaired by alcohol and drugs when he gave the statement, and his waiver therefore was invalid. The evidence at the motion hearing consisted of an audiotape recording of the interview and the testimony of three witnesses: the two detectives who conducted the interview, and the defendant’s sister. Because the motion judge considered the audiotape in light of the hearing testimony and made credibility determinations relevant to his subsidiary findings of fact, we afford those findings substantial deference. See Commonwealth v. Clarke, 461 Mass. 336, 341 (2012). The judge found that the detectives had the opportunity to […]
Commonwealth v. Shin (Lawyers Weekly No. 11-121-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-818 Appeals Court COMMONWEALTH vs. JACOB E. SHIN. No. 13-P-818. Suffolk. April 14, 2014. – September 25, 2014. Present: Green, Hanlon, & Hines, JJ.[1] Indecent Assault and Battery. Mental Impairment. Insanity. Complaint received and sworn to in the Central Division of the Boston Municipal Court Department on January 24, 2011. The case was heard by Annette Forde, J. Katherine Godin for the defendant. Zachary M. Hillman, Assistant District Attorney (Neil J. Flynn, Jr., Assistant District Attorney, with him) for the Commonwealth. HANLON, J. After a jury-waived trial, the defendant was convicted of indecent assault and battery on a person fourteen years of age or older.[2] He argues that his motion for a required finding of not guilty should have been allowed because there was insufficient evidence to prove that he was criminally responsible at the time of the crime. In addition, he argues that the judge employed the wrong analysis in determining that he was criminally responsible. We agree that the analysis was flawed and therefore reverse. Background. At approximately five o’clock in the evening on January 20, 2011, the victim boarded a Massachusetts Bay Transportation Authority (MBTA) Green Line subway train at Park Street station, heading for Cleveland Circle. It was rush hour and the train was crowded; she stood with her back against the wall by the “accordion bend” in the middle of the train in an attempt to allow space for other passengers. At the Copley stop, many people entered the train and it became very crowded; the defendant boarded with the other passengers and he went to stand “very close” to the victim, so close that he made her uncomfortable, “and he was touching [her] arm on [her] left side.” After the train left Copley and before the next stop (Hynes Convention Center), the defendant lifted his hand and touched the victim between her legs on her upper thigh, within “two inches” of her genital area. She testified that “[i]t was very high on [her] leg.” As soon as the defendant put his hand on the victim’s leg, she lifted up her left arm and, pushing him in the center of his chest, “said watch your hands. [She] pushed him as far as [she] could push him away from [her].” The victim got off […]
J.W. v. Department of Developmental Services, et al. (Lawyers Weekly No. 11-120-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12-P-1760 Appeals Court J.W.[1] vs. DEPARTMENT OF DEVELOPMENTAL SERVICES & another.[2],[3] No. 12-P-1760. Middlesex. June 2, 2014. – September 24, 2014. Present: Green, Trainor, & Grainger, JJ. Division of Administrative Law Appeals. Department of Developmental Services. Intellectually Disabled Person. Administrative Law, Judicial review. Statute, Construction. Civil action commenced in the Superior Court Department on September 15, 2011. The case was heard by Douglas H. Wilkins, J., on a motion for judgment on the pleadings. Timothy J. Casey, Assistant Attorney General, for the defendants. Stephen M. Sheehy for the plaintiff. TRAINOR, J. The Department of Developmental Services (DDS) appeals from a Superior Court judgment that vacated the decision of the Division of Administrative Law Appeals (DALA) approving the transfer of J.W. under the provisions of G. L. c. 123B, § 3.[4] J.W. is a profoundly mentally disabled, visually impaired, and nonverbal individual. He has little or no concept of personal safety, and therefore, while he can walk independently, he cannot negotiate stairs alone. He has been a resident at the Fernald Developmental Center (FDC or Fernald) for nearly his entire life. The FDC is in the process of closing, however, and the policy decision to transfer its residents, all intellectually disabled individuals, to other appropriate care facilities is no longer subject to review by the Federal courts and would require a change in State law to prevent.[5] In a comprehensive and balanced decision, an administrative magistrate of the DALA approved the plan proposed by the DDS to transfer J.W. from his residence at Malone Park 23 at the FDC to Heffron Hall A, apartment 4 at the Wrentham Developmental Center (WDC). See G. L. c. 123B, § 3. A judge of the Superior Court, on review, concluded that “[i]f one accepts the Magistrate’s legal rulings — essentially limiting inquiry to a choice between Fernald and Heffron Hall — then there is no lack of substantial evidence for the Decision. Nor (on the same assumption) does the Court find any error in ‘the logic of the analysis that the hearing officer articulated in [his] decision.’ Covell v. Department of Developmental Servs., 439 Mass. 766, 782 (2003).” Despite that, the judge concluded that the magistrate erred in his legal ruling by limiting his consideration of J.W.’s best interest to either the existing placement at Fernald or the single alternative proposed by […]
Categories: News Tags: 1112014, department, Developmental, J.W., Lawyers, Services, Weekly
Commonwealth v. Oppenheim (Lawyers Weekly No. 11-119-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12-P-1673 Appeals Court COMMONWEALTH vs. DAVID OPPENHEIM.[1] No. 12-P-1673. Hampshire. May 9, 2014. – September 24, 2014. Present: Cohen, Sikora, & Agnes, JJ. Evidence, Admissions and confessions, Authentication, Credibility of witness, Cross-examination. Practice, Criminal, Admissions and confessions, Instructions to jury, Reasonable doubt. Jury and Jurors. Witness, Credibility, Cross-examination. Indictments found and returned in the Superior Court Department on July 13, 2010. The cases were tried before Mary-Lou Rup, J. David J. Nathanson (Dan A. Horowitz with him) for the defendant. Thomas H. Townsend, Assistant District Attorney, for the Commonwealth. SIKORA, J. A Superior Court jury convicted the defendant, David Oppenheim, of five counts of rape of a child. See G. L. c. 265, § 23. He appeals upon multiple grounds, but argues principally that the trial judge should have instructed the jury that, before they could consider a confession contained in an instant message (IM) conversation,[2] the Commonwealth needed to prove beyond a reasonable doubt that the defendant authored the confession. For the following reasons, we affirm. Background. 1. Commonwealth’s evidence. From the Commonwealth’s main witnesses, the jury heard the following evidence. We reserve certain details for discussion of the appellate issues. In 2002, the defendant and his wife founded a community theater enterprise entitled the Pioneer Arts Center of Easthampton (PACE or the center). As the center’s chief executive, the defendant directed musical theater and taught acting classes. The victim, Ann Ross,[3] testified at length. She first attended PACE activities in the fall of 2004 at the age of thirteen. She remained actively involved at the center over the next four years. She first performed volunteer and intern chores, then took acting lessons, and ultimately assumed significant roles in musical productions. In the fall of 2005, when she was fourteen years old, Ross accepted the defendant’s offer of private acting lessons. The classes usually took place in the defendant’s office or the theater. The defendant told Ross that, to improve her acting skill, she needed to experience physical sensations beyond the knowledge of her age group. He rubbed her arms and kissed her lips, face, and neck. He told her that she was “really talented,” that she was “going to go far[,] and that he was going to make sure that that happened.” He instructed her not to tell anybody about their lessons because […]
Bulwer v. Mount Auburn Hospital, et al. (Lawyers Weekly No. 11-118-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 11-P-1583 Appeals Court BERNARD BULWER vs. MOUNT AUBURN HOSPITAL & others.[1] No. 11-P-1583 Middlesex. November 26, 2012. – September 24, 2014. Present: Berry, Kafker, Meade, Sikora, & Wolohojian, JJ.[2] Hospital, Appointment to staff. Anti-Discrimination Law, Race. Employment, Discrimination, Retaliation. Contract, Employment, With hospital, Performance and breach, Interference with contractual relations. Libel and Slander. Unlawful Interference. Practice, Civil, Summary judgment. Civil action commenced in the Superior Court Department on February 22, 2008. The case was heard by S. Jane Haggerty, J., on a motion for summary judgment. Sara Discepolo for the plaintiff. Robert R. Hamel, Jr., for the defendants. WOLOHOJIAN, J. The plaintiff, Dr. Bernard Bulwer, an experienced physician and a black man from Belize, became a first-year resident at Mount Auburn Hospital (hospital) in August, 2005. He joined the residency program under a one-year contract, with the possibility of advancement to a second year of residency upon successful completion of the first. Eight months into the program, he was told that the hospital would not extend a second-year contract to him but that he would be allowed to continue his residency through the end of his first year. One month later, however, he was terminated. This suit followed, in which Bulwer alleges discrimination and retaliation based on his race and national origin in violation of G. L. c. 151B, breach of contract, defamation, and tortious interference with his contractual relationship with the hospital.[3] Summary judgment entered in favor of the defendants on all counts. We conclude that the summary judgment record sufficed to entitle Bulwer to have a jury decide his discrimination and breach of contract claims, but that summary judgment was properly entered on his remaining claims. Accordingly, we affirm in part and reverse in part. 1. The summary judgment record. In reviewing a grant of summary judgment, we assess the record de novo and take the facts, together with all reasonable inferences to be drawn from them, in the light most favorable to the nonmoving party. Godfrey v. Globe Newspaper Co., 457 Mass. 113, 119 (2010). “[T]he court does not pass upon the credibility of witnesses or the weight of the evidence [or] make [its] own decision of facts.” Shawmut Worcester County Bank, N.A. v. Miller, 398 Mass. 273, 281 (1986), quoting from Attorney Gen. v. Bailey, […]
Commonwealth v. Riley (Lawyers Weekly No. 11-117-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-560 Appeals Court COMMONWEALTH vs. MICHAEL RILEY. No. 13-P-560. Norfolk. April 4, 2014. – September 19, 2014. Present: Graham, Wolohojian, & Milkey, JJ. Constitutional Law, Public trial. Practice, Criminal, Public trial, New trial. Indictments found and returned in the Superior Court Department on September 7, 2005. The case was tried before Barbara A. Dortch-Okara, J., and a motion for a new trial was considered by her. Following review by this court, 77 Mass. App. Ct. 1102 (2010), a motion for a new trial was heard by Kenneth J. Fishman, J. Joanne T. Petito for the defendant. Tracey A. Cusick, Assistant District Attorney, for the Commonwealth. WOLOHOJIAN, J. The defendant appeals from the denial of his motion for new trial, contending that his right to a public trial under the Sixth Amendment to the United States Constitution was violated when a court officer prevented the defendant’s sister from entering the courtroom because “the lawyers were talking to the judge.” This occurred on the morning of the first day of trial — but before the trial began. The motion judge found that the sister was turned away when the court was not in session. Although the parties have asked us to determine whether the defendant’s Sixth Amendment right was violated in the circumstances presented, we need not reach that question because we determine that, even were we to assume the defendant’s right was infringed, he has not shown that he is entitled to a new trial. We accordingly affirm. The motion judge, after an evidentiary hearing,[1] made the following written findings. “The defendant’s case was called for trial on November 13, 2007. The defendant’s sister Ayges, arrived at Dedham Superior Court at around 9:00 a.m. on the first day of her brother’s trial. Ayges went through court security and was directed to the courtroom where her brother’s trial was to take place. When she approached the courtroom, Ayges observed that the courtroom door was open. She saw many people waiting outside of the courtroom, including one person she recognized as the victim’s grandmother. When Ayges peered into the courtroom, she saw her brother, the defendant, and lawyers standing next to the bench, talking to the judge. She did not see anyone else in the courtroom; it was otherwise empty.[[2]] Accordingly, the […]
Hull Retirement Board v. Contributory Retirement Appeal Board, et al. (Lawyers Weekly No. 11-116-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1825 Appeals Court HULL RETIREMENT BOARD vs. CONTRIBUTORY RETIREMENT APPEAL BOARD & others.[1] No. 13-P-1825. September 16, 2014. Contributory Retirement Appeal Board. Municipal Corporations, Retirement board, Police. Police, Retirement. Public Employment, Paid leave, Accidental disability retirement, Retirement. Retirement. The Hull retirement board (board) appeals from a Superior Court judgment affirming a decision of the contributory retirement appeal board (CRAB) upholding a division of administrative law appeals (DALA) magistrate’s determination requiring the board to amend the effective retirement date of defendant David Leary. We affirm. 1. Background. Leary was a police officer in the town of Hull (town). On November 19, 2001, he sustained an injury on the job and was placed on accidental injury leave with full pay. See G. L. c. 41, § 111F, as amended through St. 1990, c. 313. Leary remained on § 111F leave until April 15, 2003, when the chief of police (chief) removed him from paid injury leave status and placed him on an unpaid leave of absence. Leary believed the chief’s action did not comply with the law, and sought to have the town reinstate his § 111F benefits. In the meantime, in July, 2003, Leary applied for accidental disability retirement under G. L. c. 32, § 7. The board approved Leary’s application on January 30, 2004. His disability retirement allowance became effective as of April 15, 2003, the last day that Leary received compensation in the form of his § 111F benefits. Notwithstanding his application for retirement and the subsequent approval of that application, Leary continued to seek payment of § 111F benefits from the town, specifically for the period between April 15, 2003, and January 30, 2004. An agreement for payment initially was reached but unraveled when, on the advice of defendant public employee retirement administration commission (PERAC), the board refused to change Leary’s effective retirement date from April 15, 2003, to January 30, 2004. In 2006, Leary filed suit, seeking enforcement of his agreement with the town. In March, 2008, Leary and the town entered into a settlement agreement, later reduced to a judgment, whereby the town would pay Leary $ 44,424.47 in additional § 111F benefits to cover the period from April 15, 2003, to January 30, 2004. Pursuant to the agreement, the funds were placed in an escrow account, with release to Leary “pending the outcome of Leary’s efforts to get the […]
Categories: News Tags: 1111614, Appeal, Board, Contributory, Hull, Lawyers, Retirement, Weekly