PAUL T. BLAIR vs. BOARD OF SELECTMEN OF BROOKLINE & others. [Note 1]

This matter was before this court in Blair v. Selectmen of Brookline, 24 Mass. App. Ct. 261 (1987, hereafter the 1987 case or decision). There the basic facts were stated. That 1987 decision (at 265) established that Blair, formerly a police officer of Brookline, had become entitled (as of August 23, 1985) to benefits for sick leave pay under G. L. c. 41, Section 111F (for text see appendix to this rescript), by reason of hypertension caused by "specific [identified] events in the performance of his duties" as a police officer.

The town officials attached to their brief in the 1987 case a letter from the Brookline retirement board to Blair, dated October 1, 1986, advising Blair "that on June 25, 1986, the board had voted to grant him an accidental disability retirement allowance, `effective midnight, January 20, 1986,' and that the board's decision had been approved by the Public Employee Retirement Administration Commissioner . . . [the PERA Commissioner] on September 16, 1986." 24 Mass. App. Ct. at 266. The 1987 decision pointed out (ibid.) that the parties had not sought leave of this court (while that appeal was pending) to present to the trial judge any "issue of the effective date of . . . [Blair's] retirement." Because the record then properly before this court was inadequate to enable it to determine that issue, the 1987 decision (at 266-267) left "it to the parties to raise the issue on the remand of . . . [the] matter for computation of the amount of compensation due" to Blair. The 1987 decision remanded the case to the Superior Court to compute "the dollar amount of compensation due . . . [to Blair] under G. L. c. 41, Section 111F, from August 23, 1985, up to the date of . . . [Blair's] accidental disability retirement, less any credit due" to the town for benefits paid, together with appropriate interest and other adjustments.

Pursuant to that remand, a judge of the Superior Court has considered the papers not considered in the 1987 decision. See 24 Mass. App. Ct. at 266. She issued a memorandum and order on July 1, 1987, amending the earlier judgment of another judge, entered prior to the remand by this court, by specifying September 16, 1986, as the date as of which Blair should be regarded as no longer receiving regular compensation.

The town officials contended before the judge in June and July, 1987, that the date should be January 20, 1986, the date as of which the Brookline retirement board had voted retroactively an accidental disability retirement for Blair. Blair contended that the final date of regular compensation should be either September 16, 1986, when Blair's retirement was approved finally

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by the PERA commissioner, or a later date for which we see no justification and which we do not discuss.

The statutory situation is obscure like many aspects of the frequently amended G. L. cc. 32 and 41, especially with respect to retirement. See Namay v. Contributory Retirement Appeal Bd., 19 Mass. App. Ct. 456, 463 (1985); Fedorchuk v. Contributory Retirement Appeal Bd., ante 916, 918 (1988). The town officials seem to rely on G. L. c. 32, Section 7(1) (as appearing in St. 1982, c. 630, Section 18), which (with respect to an accidental disability retirement) provides that a person "who becomes totally and permanently incapacitated for further duty . . . upon . . . [the] application by the head of his department after a hearing, if requested, . . . shall be retired for accidental disability as of a date which shall be specified in such application" (emphasis supplied). This provision is to be contrasted with the provisions of c. 41, Section 111F, the statute which, for reasons stated below, seems to us to be controlling.

No copy of any application for Blair's retirement is reproduced in this record. The record, however, does contain a copy of the letter, already mentioned, dated October 1, 1986, from an employee of the Brookline retirement board to Blair informing Blair of a vote of the board on June 25, 1986, subject to PERA approval, to grant him a disability retirement allowance "effective midnight, January 20, 1986." Communications from PERA to the Brookline board were also attached.

The judge in her memorandum of July 1, 1987, points out that G. L. c. 32, Section 7, provides that no disability retirement shall be allowed until after a review by the PERA commissioner. The judge apparently decided for this reason that Blair's retirement could not become final, for purposes of c. 41, Section 111F, until that approval took place. The meaning of the words in Section 111F, "after such police officer . . . has been retired . . . in accordance with law," is not free from doubt, but in view of the language and the whole history of the relevant statutes (see appendix to this rescript, par. 2) we hold that the Superior Court judge correctly treated the final PERA approval of Blair's retirement as the date of his retirement "in accordance with law."

The 1982 requirement for the approval of disability pensions by PERA makes irrelevant earlier 1956 opinions of the Attorney General referred to by the town officials and reprinted as an annex to their brief. On this record, there is no showing of any earlier date than September 16, 1986, at which Blair's retirement is required to be treated as final. If the Legislature desires a result other than that reached by the Superior Court judge (which we affirm), that change, of course, is open to it. We assume that counsel in the present case and interested officials of PERA will consider whether any legislative changes should be sought.

The result appears to be consistent with cases decided under G. L. c. 41, Section 111F, which indicate that one properly authorized to receive benefits under that section remains so authorized until (1) his retirement (or other

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separation from town employment), (2) he is accepted for pension, or (3) he recovers from his disability. See Jones v. Wayland, 374 Mass. 249, 254-261 (1978), S.C., 380 Mass. 110 (1980). In these cases Officer Jones's authorization to receive benefits under Section 111F was recognized to have been terminated by his resignation. It was also held that an allowance to Officer Jones under G. L. c. 85H had been properly denied, but the propriety of paying benefits under Section 111F was approved up to the date of his resignation. See for a discussion of the types of events which would terminate the receipt of benefits under Section 111F, Hennessey v. Bridgewater, 388 Mass. 219, 225-227 (1983). See also Montague v. Commissioner of the Metropolitan Dist. Commn., 9 Mass. App. Ct. 62, 65 (1980), where Section 111F is distinguished from the statute then under consideration by this court in a manner consistent with our interpretation of Section 111F. Compare Carvalho v. Cambridge, 372 Mass. 464 (1977), where the parties did not dispute the date of termination of Section 111F benefits, and where the case, in any event, was decided prior to the 1982 requirement of PERA approval of disability retirements as the last step in such a retirement.

The Superior Court judge's memorandum and order of July 1, 1987, was further amended (in respects not now significant) on September 16, 1987. The town officials make no contention that the computation of the compensation owing to Blair as set out in the order of July 1, 1987, as amended in the judgment of September 16, 1987, is incorrect in any respect except as to the continuance of Section 111F benefits to September 16, 1986, already discussed. Accordingly, the judgment, as so amended on September 16, 1987, is affirmed.

So ordered.

APPENDIX.

1. Significant language of G. L. c. 41, Section 111F, as appearing in St. 1964, c. 149, reads (emphasis supplied):

"Whenever a police officer . . . of a . . . town . . . is incapacitated for duty because of injury sustained in the performance of his duty without fault of his own, . . . he shall be granted leave without loss of pay for the period of such incapacity; provided, that no such leave shall be granted for any period after such police officer . . . has been retired or pensioned in accordance with law or for any period after a physician designated by the board or officer authorized to appoint police officers . . . in such . . . town . . . determines that such incapacity no longer exists. All amounts payable under this section shall be paid at the same time and in the same manner as, and for all purposes shall be deemed to be,the regular compensation of such police officer . . . ."

2. Specification by the Superior Court judge of the provisions of G. L. c. 32 requiring PERA approval would have disclosed that St. 1982, c. 630, not only created PERA itself, Sections 1 and 2 (the latter, especially, as inserting

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G. L. c. 7, Section 50[h]), and Section 7 (inserting in c. 32, Section 1, a definition of "Commissioner" as the PERA Commissioner), but also (by Section 18) the provision now found in c. 32, Section 7(1), "No such retirement shall be allowed unless the board [i.e., the retirement board having jurisdiction of the employee], after a review of the evidence it deems appropriate, and after a review by the commissioner [of PERA] pursuant to the provisions of section twenty-one . . . ." General Laws, c. 32, Section 21(1) (d), as revised by Section 25 of St. 1982, c. 630, provided (inter alia) that the commissioner of PERA "is authorized to review all accidental . . . disability pensions granted by the retirement boards."