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13-P-1825                                           Appeals Court

HULL RETIREMENT BOARD   vs.    CONTRIBUTORY RETIREMENT APPEAL BOARD
                              & others.1


             No. 13-P-1825.       September 16, 2014.


Contributory Retirement Appeal Board. Municipal Corporations,
     Retirement board, Police. Police, Retirement. Public
     Employment, Paid leave, Accidental disability retirement,
     Retirement. Retirement.


     The Hull retirement board (board) appeals from a Superior
Court judgment affirming a decision of the contributory
retirement appeal board (CRAB) upholding a division of
administrative law appeals (DALA) magistrate's determination
requiring the board to amend the effective retirement date of
defendant David Leary. We affirm.

     1. Background. Leary was a police officer in the town of
Hull (town). On November 19, 2001, he sustained an injury on
the job and was placed on accidental injury leave with full pay.
See G. L. c. 41, § 111F, as amended through St. 1990, c. 313.
Leary remained on § 111F leave until April 15, 2003, when the
chief of police (chief) removed him from paid injury leave
status and placed him on an unpaid leave of absence. Leary
believed the chief's action did not comply with the law, and
sought to have the town reinstate his § 111F benefits. In the
meantime, in July, 2003, Leary applied for accidental disability
retirement under G. L. c. 32, § 7. The board approved Leary's
application on January 30, 2004. His disability retirement
allowance became effective as of April 15, 2003, the last day


     1
       David Leary and the public employee retirement
administration commission.
                                                                   2


that Leary received compensation in the form of his § 111F
benefits.

     Notwithstanding his application for retirement and the
subsequent approval of that application, Leary continued to seek
payment of § 111F benefits from the town, specifically for the
period between April 15, 2003, and January 30, 2004. An
agreement for payment initially was reached but unraveled when,
on the advice of defendant public employee retirement
administration commission (PERAC), the board refused to change
Leary's effective retirement date from April 15, 2003, to
January 30, 2004. In 2006, Leary filed suit, seeking
enforcement of his agreement with the town.

     In March, 2008, Leary and the town entered into a
settlement agreement, later reduced to a judgment, whereby the
town would pay Leary $44,424.47 in additional § 111F benefits to
cover the period from April 15, 2003, to January 30, 2004.
Pursuant to the agreement, the funds were placed in an escrow
account, with release to Leary "pending the outcome of Leary's
efforts to get the [board] and/or Commonwealth of Massachusetts,
either through its administrative agencies and/or judicial
system, to recalculate his retirement benefits based on Leary's
receipt of the additional Section 111F benefits." Leary
presented his case to the board; it again refused. Leary
appealed the board's decision to DALA2 and, following a hearing,
a DALA magistrate ordered Leary's retirement date to be
corrected to January 30, 2004, and his retirement allowance
recalculated accordingly. CRAB affirmed the DALA decision; a
judge of the Superior Court likewise affirmed CRAB's decision.
This appeal followed.

     2. Discussion.3 General Laws c. 41, § 111F, governs leave
with pay status for police officers and firefighters injured in
the line of duty through no fault of their own. The statute
provides for payment until a recipient is either "retired or
pensioned" or "such incapacity no longer exists"; amounts

     2
       Leary also appealed to DALA the board's first refusal to
change his retirement date; the two cases later were
consolidated.
     3
       "We review CRAB's decision under a deferential standard
and will reverse only if its decision was based on an erroneous
interpretation of law or is unsupported by substantial
evidence." Foresta v. Contributory Retirement Appeal Bd., 453
Mass. 669, 676 (2009). See G. L. c. 30A, § 14(7).
                                                                   3


payable under § 111F "shall be paid at the same times and in the
same manner as, and for all purposes shall be deemed to be, the
regular compensation of such police officer or fire fighter."
General Laws c. 32, § 7, provides accidental disability
retirement for qualified members in service. Leary's effective
retirement date under G. L. c. 32, § 7, is "the date . . . he
last received regular compensation for his employment in the
public service."4 G. L. c. 32, § 7(2), as amended through St.
2000, c. 123, §§ 23A, 24. The DALA magistrate, CRAB, and the
Superior Court judge each determined that the escrowed
supplemental § 111F payments constituted "regular compensation"
received by Leary, as provided by § 111F, such that Leary's
effective retirement date was required to be changed to January
30, 2004, to comport with the requirements of G. L. c. 32,
§ 7(2). We agree.

     The town having concluded that Leary was entitled to the
additional § 111F benefits, the parties crafted a settlement
agreement memorializing that entitlement and the means of
payment. To avoid an apparent windfall, and to take into
account the board's role in recalculating Leary's retirement
benefit, the terms of the agreement include provisions for
either repayment to the board of any prior retirement amounts
incorrectly paid or reversion of the escrow funds to the town.
The agreement does not, however, vest the board with the
authority to veto Leary's entitlement to payment of the § 111F
funds.5 Thus, the board's position that Leary did not actually
"receive[]" the additional benefits under the terms of the
settlement agreement is unfounded.


    4
       Under the statute, an individual's effective retirement
date is determined by looking to whichever of the following
occurred last: the above noted date of last receipt of regular
compensation, the date the injury was sustained, or the date six
months prior to the filing of the written application. The
latter two do not apply here. See G. L. c. 32, § 7(2).
    5
       The settlement agreement states: "The Town agrees to pay
Leary the total amount of . . . ($44,424.47). This sum
represents the compensation owed by the Town to Leary pursuant
to the Town's Board of Selectmen's April 5, 200[5] vote
approving [G. L.] c. 41, § 111F benefits for April 15, 2003
through January 30, 2004 for Leary . . . ." The judgment
provides: "Judgment for the Plaintiff David S. Leary in the sum
of . . . $44,424.47 . . . , without interest or costs, and all
rights of appeal waived; and Judgment satisfied."
                                                                   4


     The board further argues that there is no explicit
authority permitting it to change a member's effective
retirement date. The claim is without merit. Nothing in the
language of G. L. c. 32, § 7(2), limits a retirement board's
ability to redetermine the effective retirement date and
recalculate retirement benefits if circumstances so require.
See, e.g., Blair v. Selectmen of Brookline, 26 Mass. App. Ct.
954 (1988) (accepting, without comment, a board's ability to
change an effective retirement date); G. L. c. 32,
§ 20[5][c][2], as appearing in St. 2000, c. 159, § 91 (allowing
a retirement board to correct "an error . . . in the records
. . . or an error . . . made in computing a benefit").6

                                   Judgment affirmed.


     Michael Sacco for Hull Retirement Board.
     Terence E. Coles for David Leary.




     6
       We express no opinion whether an "error" was made in this
case, thereby triggering the provisions of G. L. c. 32,
§ 20(5)(c)(2).
