Upton’s Case (Lawyers Weekly No. 11-127-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑325 Appeals Court JOSEPH UPTON’S CASE. No. 12‑P‑325. Suffolk. February 11, 2013. ‑ October 18, 2013. Present: Trainor, Katzmann, & Sikora, JJ. Workers’ Compensation Act, Emotional distress. Words, “Personnel action.” Appeal from a decision of the Industrial Accident Reviewing Board. Timothy J. Casey, Assistant Attorney General, for the employer. Michael C. Akashian for the employee. SIKORA, J. An employee is not entitled to workers’ compensation benefits for an “emotional disability arising principally out of a bona fide, personnel action.” G. L. c. 152, § 1(7A), as inserted by St. 1986, c. 662, § 6. At issue in this case is whether a workplace investigatory interview causing employee Joseph Upton’s emotional disability constituted a bona fide personnel action within the meaning of § 1(7A) of the Workers’ Compensation Act (Act). An administrative judge of the Department of Industrial Accidents (department) concluded that it did and, accordingly, denied Upton’s claim. The department’s reviewing board (board) reversed; it reasoned that the interview did not constitute a personnel action because it did not alter Upton’s employment status or his employment relationship. For the following reasons, we conclude that the interview was a personnel action within the meaning of the Act and therefore hold that Upton is not entitled to workers’ compensation benefits for any resulting disability. Background. The material facts are largely undisputed. They include a history of long-running litigation. Our summary draws from the uncontested subsidiary findings of the administrative judge and the facts settled by prior decisions of the Supreme Judicial Court and this court. In 1991, at age twenty-four, Upton began work as a jail officer of the Suffolk County Sheriff’s Department (sheriff). In 1999, two other jail officers assaulted an inmate while Upton was on duty. See Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County, 451 Mass. 698, 699 (2008) (Sheriff of Suffolk County I). A disciplinary hearing officer found that Upton had filed false and untimely reports about the assault; had provided false information regarding the incident to the sheriff’s investigative division; and had failed to maintain the log book in his unit. Upton was terminated. Ibid. He grieved the termination to arbitration. In March of 2001, the arbitrator reduced the sanction to a six-month suspension without pay and ordered Upton’s reinstatement with back pay and benefits for […]