JAMES GANNON vs. CONTRIBUTORY RETIREMENT APPEAL BOARD.

WHITTEMORE, J. This is an appeal from a final judgment dismissing a petition for a writ of certiorari (G. L. c. 213, Section 1D). The petition as filed on December 13, 1954, sought a writ of mandamus. A motion to amend the petition into its present form was filed February 9, 1955, and allowed July 18, 1955. The proceedings were "pending in a court" when the State administrative procedure act (G. L. c. 30A) took effect on July 1, 1955, and the petition may be entertained. St. 1954, c. 681, Section 22. Compare Mathewson v. Contributory Retirement Appeal Bd. 335 Mass. 610, 616.

The issue is the validity of the decision of the contributory retirement appeal board which confirmed a decision of the retirement board of the city of Lowell not to retain or process

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the petitioner's application for retirement for accidental disability under G. L. c. 32, Sections 1-28, inclusive, on the ground that when the application was filed the petitioner was not a "member in service" under the act, having previously been discharged.

The following are the relevant facts: The petitioner on June 24, 1952, was an employee of the Lowell Housing Authority (having been hired December 31, 1951) and was a member in service in good standing of the city's contributory retirement system. On June 24 the petitioner, while at work, was taken ill and went to the hospital. He remained there until July 2. The petitioner returned to work on September 22, 1952, and on that date sent the board a letter notifying it of his illness ("heat prostration which resulted in a coronary heart attack") and that his doctor told him "he could return to his job if he was given light work" and that he returned to it on September 22.

On October 1, 1952, while still actively employed by the housing authority the petitioner filed a claim for compensation under the workmen's compensation act (G. L. c. 152) for the injuries sustained on June 24, 1952. The Lowell Housing Authority on November 5, 1952, ended the petitioner's employment because of his inability to perform his duties and on November 21, 1952, notified the board of the petitioner's "separation from service" because "[u]nable to perform duties of Fireman due to recent illness." On April 17, 1953, the petitioner and the insurer of the housing authority entered into an agreement for a lump sum settlement of the petitioner's claim in the amount of $5,750. The agreement was on a form of the department (now "division," see St. 1953, c. 314) of industrial accidents, entitled "Agreement for Redeeming Liability by Payment of Lump Sum," and recited that the payment was "in redemption of the liability for all weekly payments now or in the future due me under the workmen's compensation act, for all injuries received . . . on or about the 24th day of June 1952, while in the employ of the above named employer . . .." The approval of the department was indorsed on the agreement

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on April 21, 1953, and by letter of April 23 the department notified the parties of the approval and directed the payment of stated medical bills and an attorney's fee. The application for retirement was filed on May 27, 1953. On June 25, 1953, the retirement board voted "that the application of the petitioner be given leave to withdraw."

Section 3 of c. 32 in subsections (1) (a) (i) and (ii) [Note p631-1] provides for two kinds of "[m]embership in a system." Paragraph (i) defines "[m]ember in [s]ervice" as a member "regularly employed" or on leave of absence with pay or without pay if "due to his mental or physical incapacity for duty," and provides that such status continues "until his prior separation from the service becomes effective by reason of . . . [various contingencies including] discharge . . .." Paragraph (ii) defines "[m]ember [i]nactive" to include "any member in service whose employment has been terminated and who may be entitled to any present or potential retirement allowance or to a return of his accumulated total deductions . . ." (emphasis supplied).

Section 3 (1) (c) provides, "No description of a person having any rights or privileges under the provisions of sections one to twenty-eight inclusive, such as member in service, member inactive, beneficiary or otherwise, shall serve to deprive him of any such rights or privileges. A

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member shall retain his membership in the system so long as he is living and entitled to any present or potential benefit therein."

We think that Section 14 (1) (a) of c. 32 establishes that at the time of his discharge on November 5, 1952, and at the time of the application on May 27, 1953, the petitioner was entitled to a "potential retirement allowance," and that Section 14 read with Sections 3 (1) (a) (ii) and 3 (1) (c) shows an intent that a former employee, so entitled, shall have whatever status is necessary to permit him to make application for that allowance notwithstanding that in the meantime he has ceased to be a "member in service" within the provisions of Section 3 (1) (a) (i).

Section 14 (1) (a) of c. 32 provides in its first paragraph: "Any employee who was a member in service at the time of sustaining an injury or undergoing a hazard on account of which he becomes entitled to payments under the provisions of chapter one hundred and fifty-two, shall, during the period while he is receiving weekly payments for total incapacity under the provisions of sections sixty-nine to seventy-five inclusive of such chapter, or during any period, determined as set forth in paragraph (c) of this subdivision, represented by the allocation of the amount of any lump sum settlement payable directly to him under the provisions of section forty-eight of such chapter in lieu of such weekly payments, and also in either event during a further period of thirty days, retain all the rights of a member in service while he is living, unless and until a retirement allowance becomes effective for him under the provisions of sections one to twenty-eight inclusive" (emphasis supplied). The additional provisions of the paragraph and subsequent paragraphs of Section 14 confirm the declared intent that the rights of an injured member in service be retained in the compensation period. [Note p632-1]

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We think that c. 32 is not to be so construed that a right of retirement for accidental injury may be cut off by the employer by a decision to discharge the employee because of his disability, rather than to give him leave of absence without pay as contemplated by Section 3 (1) (a) (i) or to move to retire him under the option so to do given the department head by Section 16. We find no basis for such an arbitrary result. Discharge prior to the accrual of a right under Section 14 would present a different case. See Kennedy v. Holyoke, 312 Mass. 248, 250 (discharge for misconduct prior to purported retirement under Section 57 which authorized retirement of a veteran from "active service").

The petitioner has no less rights under c. 32 because, not being a civil service employee, he was subject to discharge at any time.

The board in its decision stated the view, and argues here, that the "lump sum settlement did not constitute any part of an allocation of an amount in lieu of weekly payments . . . [under c. 152], but rather appeared to be the payment of a sum by way of compromise of the action without an admission of liability on the part of the insurer." We disagree. Section 48 of c. 152 provided in April, 1953, that "Whenever the department deems it to be for the best interests of the employee or his dependents, and the parties agree, the liability for compensation may be redeemed by the payment in whole or in part by the insurer of a lump sum of an amount to be fixed by the department, not exceeding the amount provided by this chapter. The department, in the case of a minor who has received permanently disabling

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injuries, either partial or total, may, at any time before or after he attains his majority, provide that he be compensated in whole or in part by the payment of a lump sum, of an amount to be fixed by the department, not exceeding the amount provided by this chapter."

The settlement agreement expressly recited, as the statute contemplates, that the payment was "in redemption of the liability for all weekly payments . . .." We think that this was no less a redemption of liability under Section 48 because initiated by the parties and subsequently approved by the department. See Silva's Case, 305 Mass. 380, 381.

There is no right to compromise the liability for weekly payments except under the act. Conlon v. Lawrence, 299 Mass. 528, 531.

Section 6 of c. 152 provided that if "the insurer and the injured employee reach an agreement in regard to compensation, a memorandum thereof shall be filed with the department, and, if approved by it, the memorandum shall for all purposes be enforceable under section eleven . . .." Our cases show the use of this section to support agreements as to weekly compensation. Perkins's Case, 278 Mass. 294, 298-299. MacKinnon's Case, 286 Mass. 37-38. Miller v. Richards, 305 Mass. 424, 425. West's Case, 313 Mass. 146, 153. Brophy's Case, 327 Mass. 557, 559. Other cases which deal with a lump sum settlement refer either to both Section 6 and Section 48 or only to Section 48. See Conlon v. Lawrence, 299 Mass. 528, 532; Silva's Case, 305 Mass. 380, 381. Authorization of a lump sum settlement is in Section 48 and not in Section 6 apart from Section 48. McCarthy's Case, 226 Mass. 444, was decided under the predecessor of Section 48 (St. 1911, c. 751, Part II, Section 22, as amended by St. 1914, c. 708, Section 8) which required as a condition of a lump sum settlement that the weekly payments have continued for not less than six months and that the department be satisfied that the case was unusual. We said (p. 446), "In an ordinary case the liability . . . cannot be redeemed by a lump sum settlement." The parties to the settlement agreement acted under c. 152, Section 48, and c. 32, Section 14 (1) (a), was applicable.

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It is apparent from the amount of the lump sum settlement and the provisions of G. L. c. 152, Sections 34 and 35A, and c. 32, Section 14 (1) (c), that the period prescribed by c. 32, Section 14 (1) (a), during which the employee retained "all the rights of a member in service" had not expired on May 27, 1953, when the retirement application was filed. The application is to be accepted by the Lowell retirement board under c. 32, Section 7 (1), and the board is to proceed under the applicable provision to determine whether the requested retirement may be allowed.

The judgment is reversed. Judgment is to enter in the Superior Court in accordance herewith.

So ordered.