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NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 […]

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