Kalu v. Boston Retirement Board, et al.

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   15-P-1148                                       Appeals Court   OBIDIYA KALU  vs.  BOSTON RETIREMENT BOARD & another.[1]     No. 15-P-1148.   Norfolk.     May 4, 2016. – October 14, 2016.   Present:  Katzmann, Carhart, & Sullivan, JJ.[2]     Contributory Retirement Appeal Board.  Public Employment, Accidental disability retirement, Retirement.  Retirement.  Practice, Civil, Appeal.  Administrative Law, Decision, Judicial review, Official notice, Substantial evidence.       Civil action commenced in the Superior Court Department on July 21, 2014.   The case was heard by Peter B. Krupp, J., on motions for judgment on the pleadings.     Charles E. Berg for the plaintiff. Elizabeth Kaplan, Assistant Attorney General, for Contributory Retirement Appeal Board. Edward H. McKenna for Boston Retirement Board.     SULLIVAN, J.  The plaintiff, Obidiya Kalu, appeals from a Superior Court judgment affirming a decision of the Contributory Retirement Appeal Board (CRAB).  CRAB had determined that while Kalu’s appeal from the denial of accidental disability retirement benefits by the Boston Retirement Board (BRB) was timely, she was not entitled to those benefits.[3]  We conclude that the appeal was timely, but we vacate the judgment affirming the denial of benefits and remand the case for further proceedings. Timeliness of appeal from retirement board decision.  The first issue presented is whether the fifteen-day appeal period from an adverse decision of a retirement board set forth in G. L. c. 32, § 16(4), begins to run when a represented applicant receives proper notice of the retirement board’s decision, or when an applicant’s legal counsel receives such notice.  We defer to CRAB’s reasonable interpretation of its enabling statute and conclude that the appeal period begins to run when notice is received by the applicant’s counsel. After a hearing, an administrative magistrate of the Division of Administrative Law Appeals (DALA) made factual findings on the issue of when notice was received, and by whom, all of which were adopted by CRAB.  “We accept the facts found by CRAB when there is substantial evidence to support them, and also accept the reasonable inferences CRAB draws from the facts.”  Rockett v. State Bd. of Retirement, 77 Mass. App. Ct. 434, 438 (2010) (citation omitted).  We summarize the pertinent findings, all of which were supported by substantial evidence. Attorney James Ellis filed the claim for accidental disability retirement benefits on Kalu’s behalf on December 30, 2006.  In October, 2008, the BRB held a hearing on Kalu’s […]

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