15 Mass. App. Ct. 1007

May 5, 1983

Burnham, employed as a laborer and heavy motor equipment operator by the city of Gloucester, applied to the Gloucester retirement board (GRB) for accidental disability retirement under G. L. c. 32, Section 7(1), because of injury in the course of duty to his right elbow. A medical panel, appointed by GRB after objections to a previous panel, considered Burnham's reapplication and found and certified against it by a vote of two to one, answering no to the question whether the applicant was incapacitated for further duty. Upon review, the Contributory Retirement Appeal Board (CRAB) upheld GRB. Burnham sought judicial review under the State Administrative Procedure Act, G. L. c. 30A, Section 14. The Superior Court entered judgment reversing CRAB and remanding the matter to GRB. The judgment cannot stand. As conceded at argument, the only alleged defect in the record that Burnham can point to is a statement by the dissenting member of the panel (Burnham's nominee) referring to the possibility of corrective surgery, an impermissible consideration; but that in no way infects the majority's certificate, explained in the panel report. Burnham did not sustain his burden of showing that the majority applied an erroneous standard, contrast Wakefield Contributory Retirement Bd. v. Contributory Retirement Appeal Bd., 352 Mass. 499 , 502 (1967), and the judge had no proper basis for his belief that there was error of law in the action of the medical panel or insufficient evidence to support it. Correspondingly CRAB's decision was correct. See Malden Retirement Bd. v. Contributory Retirement Appeal

Page 1008

Bd., 1 Mass. App. Ct. 420 , 424 (1973). The judgment will be reversed and a new judgment is to enter reinstating CRAB's decision.

So ordered.


[Note 1] Retirement board of Gloucester.