SPINA, J.
Ernest B. Murphy was employed by the Commonwealth of Massachusetts as a Superior Court judge for approximately eight years. Following the publication of libelous articles in the Boston Herald newspaper about Judge Murphy's performance of his judicial duties, and his subsequent receipt of
At issue is whether Judge Murphy is entitled to receive accidental disability retirement benefits on the grounds that he is permanently disabled from performing the essential duties of his job "by reason of a personal injury sustained or a hazard undergone as a result of, and while in the performance of, his duties at some definite place and at some definite time." G. L. c. 32, § 7 (1). We conclude that Judge Murphy is not entitled to receive such benefits because he failed to satisfy his burden of proving that the personal injury that resulted in his permanent disability was sustained while he was performing his judicial duties.
1. Statutory scheme. Before considering the specific facts of this case, we begin with a brief statutory overview. General Laws c. 32 governs retirement systems and pensions in the Commonwealth. Section 7 (1) of G. L. c. 32 provides, in pertinent part:
A "member in service" is "any employee included in the state employees' retirement system," G. L. c. 32, § 1, "who is regularly employed in the performance of his duties." G. L. c. 32, § 3 (1) (a) (i).
Once an application for accidental disability retirement benefits is filed by a member in service, a "[r]egional medical panel" comprised of three physicians is convened to examine the member, review the pertinent facts in the case, and determine the member's medical condition. See G. L. c. 32, §§ 1, 6 (3) (a). The panel shall certify to the appropriate retirement board in writing whether "such physicians on said panel find that [the] member is mentally or physically incapacitated for further duty and that such incapacity is likely to be permanent." G. L. c. 32, § 6 (3) (a). In addition, the panel shall state "whether or not the disability is such as might be the natural and proximate result of the accident or hazard undergone on account of which retirement is claimed under [G. L. c. 32, § 7]."
Any person aggrieved by the decision of a retirement board can appeal that decision to CRAB. See G. L. c. 32, § 16 (4). Once an appeal reaches CRAB, the findings of the local retirement board are "of no particular significance." Namay v. Contributory Retirement Appeal Bd., 19 Mass.App.Ct. 456, 461 (1985). CRAB assigns the appeal to the division of administrative law appeals (DALA) for a hearing. See G. L. c. 32, § 16 (4). After a hearing before an administrative magistrate, DALA is to submit to the parties a written decision that is final and binding on the retirement board involved and on all other parties, unless a party objects to such decision in writing to CRAB, or CRAB orders the retirement board to review the decision and take such further action as is appropriate. See id. CRAB then is to "pass upon" the appeal within six months after the conclusion of the hearing, and its decision "shall be final and binding upon the board involved and upon all other parties." Id.
CRAB is not bound by the DALA administrative magistrate's recommendation. See Blanchette v. Contributory Retirement Appeal Bd., supra at 483 n.2; Vinal v. Contributory Retirement Appeal Bd., 13 Mass.App.Ct. 85, 101-102 (1982). Nonetheless, all subsidiary findings made by the magistrate are entitled to "some deference" by CRAB, and those findings that are based on credibility determinations by the magistrate are entitled to "substantial deference." Id. at 101. See Morris v. Board of Registration in Med., 405 Mass. 103, 110-111, cert. denied, 493 U.S. 977 (1989). To the extent that CRAB rejects the magistrate's resolution of credibility questions, CRAB's decision should contain "a considered articulation of the reasons underlying
2. Factual and procedural background. We summarize the facts found by the administrative magistrate with some supplementation from the record. See Blanchette v. Contributory Retirement Appeal Bd., supra at 480. CRAB drew its abbreviated statement of the facts from the magistrate's detailed findings, which CRAB incorporated by reference, as well as from the exhibits and facts stipulated to by the parties before DALA.
In September, 2000, Judge Murphy was appointed to serve as an Associate Justice of the Superior Court, and consequently, he became a member of the State employees' retirement system. At the time of his appointment, Judge Murphy was in "good psychological health" and "good overall physical health."
Beginning on February 13, 2002, the Boston Herald newspaper published several articles written by its reporter, David Wedge, that were sharply critical of Judge Murphy's performance of his judicial duties. The articles set forth "sweeping allegations of his incompetence to sit on criminal cases, his bias toward defendants, and his open hostility to victims and prosecutors." On
The impact on Judge Murphy of the publicity, hate mail, and death threats was profoundly negative. He began seeing Dr. Daniel Rutrick, a psychiatrist, on a regular basis and was diagnosed with PTSD and major depression. According to Dr. Rutrick, Judge Murphy "persistently" reexperienced the death threats, causing him to feel intensely fearful and helpless. Judge Murphy also suffered various physical ailments brought on by his emotional distress, including a peptic ulcer, severe irritable bowel syndrome, and gastroesophageal reflux disease.
On June 3, 2002, Judge Murphy sued the Boston Herald and four of its employees for libel. Settlement discussions between the parties were unsuccessful. Following a trial in the Superior Court in January and February, 2005, a jury returned a verdict in favor of Judge Murphy and awarded him compensatory damages in the sum of $2.09 million, which the judge subsequently reduced to $2.01 million.
On February 20, 2005, shortly after the conclusion of the trial, Judge Murphy wrote a letter on official Superior Court stationery to Patrick J. Purcell, the publisher of the Boston
Based on Judge Murphy's actions, the Commission on Judicial Conduct (commission) initiated a complaint against Judge Murphy on January 10, 2006; the Boston Herald filed a separate complaint approximately one month later. On June 26, 2007, the commission initiated formal charges against Judge Murphy, alleging judicial misconduct. A public hearing on the charges took place in October, 2007. On November 19, 2007, a hearing officer issued a report pursuant to G. L. c. 211C, § 7 (8), in which he concluded that the commission had satisfied its burden of proving by clear and convincing evidence, see G. L. c. 211C, § 7 (4), that Judge Murphy had violated several canons of the Code of Judicial Conduct, S.J.C. Rule 3:09, as appearing in 440 Mass. 1301 (2003). The hearing officer recommended that Judge Murphy be publicly reprimanded and assessed costs and expenses to reimburse the commission.
On July 28, 2007, Judge Murphy submitted a written request for retirement to the Governor pursuant to Part II, c. 3, art. 1, of the Massachusetts Constitution, as amended by art. 58 of the Amendments. Judge Murphy stated that he was "unable to perform [his] responsibilities as an Associate Justice of the Superior Court because of [his] medical condition." His request was supported by medical opinion letters from Dr. Rutrick and Dr. Stephen A. Hoffmann, Judge Murphy's primary care physician since June, 2001. By letter dated August 1, 2007, the Governor's chief legal counsel informed Judge Murphy that the Governor had "declined to act" on Judge Murphy's request to retire.
In early 2008, the Chief Justice for Administration and Management asked Judge Murphy to undergo an independent medical evaluation to determine whether he was permanently disabled due to PTSD, or whether his health issues had resolved so that he could resume his job as a Superior Court judge, with the provision that he handle only civil cases. Dr. Thomas G. Gutheil, a psychiatrist, issued a report on April 8, 2008, setting forth his findings that Judge Murphy was not fit to perform his duties as a Superior Court judge in either criminal or civil sessions. Dr. Gutheil concluded that "Judge Murphy suffers from a combination of personality factors and cognitive deficits that affect his fitness to practice in his profession; and that may
On October 3, 2008, Judge Murphy filed an application for accidental disability retirement benefits, stating that he had ceased being able to perform his judicial duties on July 18, 2007, due to "Emotional Conditions, including Anxiety, Depression, Panic Disorder and Post Traumatic Stress Disorder." Judge Murphy identified the reasons for his disability as both "Personal Injury" and "Hazard." He described his fear of ongoing publication of libelous articles by the Boston Herald and his receipt of hate mail, death threats, and threats of violence directed at his family. In support of his application, Judge Murphy submitted a statement and report from Dr. Rutrick. He also submitted a statement from his direct supervisor, the Chief Justice of the Superior Court.
In a letter to the Governor dated December 19, 2008, Judge Murphy "resign[ed] [his] Commission and retir[ed] as [an] Associate Justice of the Superior Court Department of the Trial Court of the Commonwealth, effective immediately."
Judge Murphy's application for accidental disability retirement benefits was referred to a regional medical panel consisting of three psychiatrists. They examined Judge Murphy on April 28, 2009, and unanimously answered all three certificate questions in the affirmative. They opined that he was unable to perform the essential duties of his job, that his incapacity was likely to be permanent, and that his incapacity was "such as might be the natural and proximate result of the personal injury sustained or hazard undergone on account of which retirement [was] claimed." The panel's report stated, among other things, that "notwithstanding [Judge] Murphy's underlying psychiatric and neuropsychiatric vulnerabilities, the work-related stressors connected with the articles in the Herald played a significant role in his deteriorating psychiatric condition." The death threats were identified as "clear psychological stressors." It was the medical panel's unanimous opinion that Judge Murphy "warrant[ed] accidental disability retirement."
The board then requested clarification from the medical panel regarding whether Judge Murphy could perform his duties if he only presided over civil cases, and whether "non-work related
By letter dated September 3, 2009, the board denied Judge Murphy's application for accidental disability retirement benefits. The denial was based, in part, on a determination by a majority of the board that while Judge Murphy was "incapable of performing the essential duties of his job and his condition [was] likely permanent, his condition was not caused or aggravated by reason of a personal injury sustained or a hazard undergone while in the performance of his duties."
Judge Murphy filed an appeal from the board's decision with CRAB pursuant to G. L. c. 32, § 16 (4). The matter was assigned to DALA, and a hearing was held on January 14, 2010, before an administrative magistrate. At the beginning of the hearing, the parties stipulated that Judge Murphy was disabled, and that such disability was likely to be permanent. Therefore, the issue on appeal was causation. Judge Murphy was the sole witness. By decision dated June 10, 2010, the magistrate reversed the board's determination and concluded that Judge Murphy was entitled to accidental disability retirement benefits. The magistrate stated that Judge Murphy had suffered a compensable personal injury and become permanently disabled as a result of facing death threats and threats to the safety of his family while in the performance of his duties as a Superior Court judge. In the magistrate's opinion, the evidence demonstrated that these threats were the natural and proximate cause of Judge Murphy's serious psychiatric and physical conditions.
Based on the record, CRAB was unable to say that substantial evidence supported a conclusion that Judge Murphy received and read all, or any portion, of the threatening communications while in the course of performing his judicial duties, while performing such duties in a place where he worked during his hours of work, or both.
3. Standard of review. It is well established that judicial review of a CRAB decision pursuant to G. L. c. 30A, § 14, is narrow. See Retirement Bd. of Salem v. Contributory Retirement Appeal Bd., 453 Mass. 286, 288-289 (2009). It is not our province "to determine whether the CRAB decision is based on the `weight of the evidence,' nor may we substitute our judgment for that of CRAB." Id. at 289, quoting Damiano v. Contributory Retirement Appeal Bd., 72 Mass.App.Ct. 259, 261 (2008). See Lisbon v. Contributory Retirement Appeal Bd., 41 Mass.App.Ct. 246, 252 n.6, 257 (1996). We set aside a decision by CRAB only where it is legally erroneous or unsupported by substantial evidence. See G. L. c. 30A, § 14 (7); Retirement Bd. of Salem v. Contributory Retirement Appeal Bd., supra, and cases cited. Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." G. L. c. 30A, § 1. See McCarthy v. Contributory Retirement Appeal Bd., 342 Mass. 45, 47 (1961). "Under the substantial evidence test, a reviewing court is not empowered to make a de novo determination of the facts, to make different credibility choices, or to draw different inferences from the facts found by the [agency]." Medi-Cab of Mass. Bay, Inc. v. Rate Setting Comm'n, 401 Mass. 357, 369 (1987). We must give due weight to the experience, technical competence, and specialized knowledge of CRAB, see Retirement Bd. of Salem v. Contributory
4. Discussion. It bears repeating that to be eligible for accidental disability retirement benefits, an applicant must be permanently unable to perform the essential duties of his job "by reason of a personal injury sustained or a hazard undergone as a result of, and while in the performance of, his duties at some definite place and at some definite time." G. L. c. 32, § 7 (1).
First, there is no disagreement that Judge Murphy is permanently disabled from performing the essential duties of his job as a Superior Court judge. At the beginning of the hearing before the administrative magistrate, the parties stipulated to
Second, there is no dispute that Judge Murphy's severe psychiatric and physical ailments constitute a "personal injury" under G. L. c. 32, § 7 (1). Although the term "personal injury" is not defined in the retirement statute, Massachusetts appellate courts consistently have interpreted the meaning of "personal injury" in accordance with G. L. c. 152, the workers' compensation statute. See, e.g., Retirement Bd. of Salem v. Contributory Retirement Appeal Bd., supra; Adams v. Contributory Retirement Appeal Bd., supra at 361 n.1; Blanchette v. Contributory Retirement Appeal Bd., 20 Mass.App.Ct. 479, 482 (1985). A mental or emotional disability has been recognized as a "personal injury" within the meaning of G. L. c. 152,
We now consider whether Judge Murphy's disabling injuries were sustained "while in the performance of" his judicial duties.
While appellate courts have looked to the workers' compensation statute when interpreting the term "personal injury" as it appears in the accidental disability retirement statute, nonetheless, an injured employee's entitlement to benefits under G. L. c. 32, § 7 (1), is significantly different from an injured employee's entitlement to benefits under G. L. c. 152. See Damiano v. Contributory Retirement Appeal Bd., 72 Mass.App.Ct. 259, 261-262 (2008). The language of G. L. c. 32, § 7 (1), is "much more restrictive" than that of the workers' compensation statute, Boston Retirement Bd. v. Contributory Retirement Appeal Bd., 340 Mass. 109, 111 (1959), because accidental disability retirement benefits "are more generous than those available under ordinary retirement or under a nonservice-connected disability retirement." Damiano v. Contributory Retirement Appeal Bd., supra at 262. Consequently, the Legislature has created a significantly higher bar for the receipt of accidental disability retirement benefits. See id., and cases cited. See also Richard v. Retirement Bd. of Worcester, 431 Mass. 163, 164 (2000).
The workers' compensation statute provides for benefits to an employee who experiences "a personal injury arising out of and in the course of his employment" (emphasis added). G. L. c. 152, § 26. In contrast, G. L. c. 32, § 7, "requires not only that the injuries must result from one's duties but that they must also be sustained `while in the performance' of [those] duties. The requirements are conjunctive." Boston Retirement Bd. v. Contributory Retirement Appeal Bd., supra. In other words, the causation requirement of G. L. c. 32, § 7 (1), demands that the
In light of the distinct language of the accidental disability retirement statute, our jurisprudence over the years has strictly construed the requirements of this statute. See, e.g., Richard v. Retirement Bd. of Worcester, supra at 163-165 (disabling injury suffered by public employee while driving to work location not sustained while engaged in performance of employment duty); Namvar v. Contributory Retirement Appeal Bd., 422 Mass. 1004, 1005 (1996) (employee who fell on employer's premises while walking from cafeteria to office to meet with students not injured while in performance of job duties); Boston Retirement Bd. v. Contributory Retirement Appeal Bd., supra (employee who fell on employer's premises while on way home to lunch not injured while in performance of job duties because such interpretation would "stretch" meaning of G. L. c. 32, § 7, "beyond permissible limits"); Damiano v. Contributory Retirement Appeal Bd., supra (employee seriously injured during "unanticipated horseplay" while at work not injured while in performance of job duties). There is no doubt that "the strict causation requirement of G. L. c. 32, § 7 (1), can yield harsh results for employees who have suffered disabling injuries." Richard v. Retirement Bd. of Worcester, supra at 167. However, "unless and until the Legislature amends the accidental disability retirement statute to relax this requirement, fairness demands that we apply the statute's terms consistently to all claimants." Id.
In assessing whether CRAB correctly concluded that Judge Murphy failed to satisfy his burden of proof, we examine the
First, with regard to whether Judge Murphy was performing judicial duties during the time that he opened and read the death threat in his chambers, Judge Murphy presented no evidence that he was so engaged. The documents before CRAB included our decision in Murphy v. Boston Herald, Inc., 449 Mass. 42, 66 (2007), in which this court stated: "In the days following the publication of the February 13 and 14 Herald articles, the plaintiff received boxes of angry letters from people he did not know, many of them explicitly referring to the `tell her to get over it' comment. Some of the letters contained death threats. The first death threat was slipped under the door of his chambers." As CRAB correctly pointed out, apart from these factual statements, there was no evidence pertaining to "who found this death threat or when and where Judge Murphy read it."
Assuming that Judge Murphy read this death threat in his chambers, there was no evidence whatsoever as to what he was doing when he opened and read it.
Second, with regard to whether Judge Murphy was engaged in the performance of his judicial duties by virtue of opening and reading his mail, Judge Murphy presented no evidence to show that this activity was one of his judicial duties. The realm of judicial duties is wide and varied, depending on the individual judge and the court. As part of his application for accidental disability retirement benefits, Judge Murphy submitted a statement from his direct supervisor, the Chief Justice of the Superior Court, in which she was asked to "describe the essential duties that the applicant is required to perform in his or her current position." The Chief Justice's submission included an "Outline of Some of the Basic Responsibilities of a Superior Court Justice." As found by the administrative magistrate, those responsibilities include, among other things, "[e]mpaneling and instructing grand juries, determining and reviewing bail in criminal cases, issuing warrants, greeting potential jurors called to jury duty,
We recognize that the outline plainly states that its summary of judicial duties "does not purport to be an exhaustive statement of all of the responsibilities that are incumbent upon a Superior Court justice." As such, to the extent that Judge Murphy viewed the opening and reading of mail that arrived in his chambers as one of his judicial duties, he had the burden of producing evidence to support that fact, even if it was simply his own testimony. Judge Murphy produced no such evidence. Contrary to Judge Murphy's suggestion, we do not take judicial notice that the opening and reading of mail by a judge in chambers is a judicial duty because, although it may be for some judges, it may not be for others. See Mass. G. Evid. § 201(b) (2012) (judicial notice of adjudicative facts). See also Nantucket v. Beinecke, 379 Mass. 345, 352 (1979) ("Matters are judicially noticed only when they are indisputably true"); Commonwealth v. Kirk, 39 Mass.App.Ct. 225, 229 (1995) (judicial notice "cannot be taken of material factual issues that can only be decided by the fact finder on competent evidence").
Judge Murphy argues that the present case is wholly analogous to Retirement Bd. of Salem v. Contributory Retirement Appeal Bd., 453 Mass. 286 (2009). We disagree. There, an employee of the city of Salem suffered a permanently disabling heart attack at home within one hour after experiencing emotional distress at work when she was told by her supervisor that her job soon would be eliminated. See id. at 286-287. Among other issues, we considered whether the employee's heart attack was sustained during the performance of her employment duties, as required by G. L. c. 32, § 7 (1), where it occurred after she had left work for the day. See id. at 290. We agreed with CRAB that accidental disability retirement benefits may be awarded only when the disabling injury is sustained during the performance of the employee's duties. See id. at 291. However, contrary to CRAB, we concluded that the employee's heart attack was
5. Conclusion. The decision of CRAB is neither legally erroneous nor unsupported by substantial evidence. Accordingly, the case is remanded to the county court where the single justice is to enter a judgment affirming the decision of CRAB to deny accidental disability retirement benefits to Judge Murphy.
So ordered.