Kalu v. Boston Retirement Board

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15-P-1148 Appeals Court

OBIDIYA KALU vs. BOSTON RETIREMENT BOARD & another.1

No. 15-P-1148.

Norfolk. May 4, 2016. - October 14, 2016.

Present: Katzmann, Carhart, & Sullivan, JJ.2

Contributory Retirement Appeal Board. Public Employment,
Accidental disability retirement, Retirement. Retirement.
Practice, Civil, Appeal. Administrative Law, Decision,
Judicial review, Official notice, Substantial evidence.

Civil action commenced in the Superior Court Department on
July 21, 2014.

The case was heard by Peter B. Krupp, J., on motions for
judgment on the pleadings.

Charles E. Berg for the plaintiff.
Elizabeth Kaplan, Assistant Attorney General, for
Contributory Retirement Appeal Board.
Edward H. McKenna for Boston Retirement Board.

1
Contributory Retirement Appeal Board (CRAB).
2
Justice Katzmann participated in the deliberation on this
case prior to his resignation.
 2

SULLIVAN, J. The plaintiff, Obidiya Kalu, appeals from a

Superior Court judgment affirming a decision of the Contributory

Retirement Appeal Board (CRAB). CRAB had determined that while

Kalu's appeal from the denial of accidental disability

retirement benefits by the Boston Retirement Board (BRB) was

timely, she was not entitled to those benefits.3 We conclude

that the appeal was timely, but we vacate the judgment affirming

the denial of benefits and remand the case for further

proceedings.

1. Timeliness of appeal from retirement board decision.

The first issue presented is whether the fifteen-day appeal

period from an adverse decision of a retirement board set forth

in G. L. c. 32, § 16(4), begins to run when a represented

applicant receives proper notice of the retirement board's

decision, or when an applicant's legal counsel receives such

notice. We defer to CRAB's reasonable interpretation of its

enabling statute and conclude that the appeal period begins to

run when notice is received by the applicant's counsel.

After a hearing, an administrative magistrate of the

Division of Administrative Law Appeals (DALA) made factual

3
The BRB denied Kalu's application for accidental
disability retirement benefits. An administrative magistrate of
the Division of Administrative Law Appeals (DALA) found that the
appeal was timely, and awarded benefits. CRAB agreed on the
procedural issue, but reversed the DALA magistrate's award of
benefits.
 3

findings on the issue of when notice was received, and by whom,

all of which were adopted by CRAB. "We accept the facts found

by CRAB when there is substantial evidence to support them, and

also accept the reasonable inferences CRAB draws from the

facts." Rockett v. State Bd. of Retirement, 77 Mass. App. Ct.

434, 438 (2010) (citation omitted). We summarize the pertinent

findings, all of which were supported by substantial evidence.

Attorney James Ellis filed the claim for accidental

disability retirement benefits on Kalu's behalf on December 30,

2006. In October, 2008, the BRB held a hearing on Kalu's claim.

Kalu was represented by Attorney Dennis Ellis, who is a member

of a different law firm, at the hearing before the BRB. On June

23, 2009, the BRB denied Kalu's application, and subsequently

sent a decision letter to Kalu's home address via certified

mail. The decision letter stated that an appeal to CRAB must be

filed "within 15 days of receipt of this notice." There was no

evidence in the record that the decision letter was sent to (or

received by) either Attorney Ellis.

Kalu, due to her son's death in Nigeria, went to Nigeria

from June until August of 2009, and had arranged for her

daughter to collect her mail during this period. The daughter

signed for the BRB decision letter on June 26, 2009. Contrary

to her mother's directions, Kalu's daughter threw away some of
 4

the mail, including the decision letter.4 Kalu, who retrieved

her mail from her daughter promptly upon return, did not see the

decision letter, and her daughter did not mention it to her.5

Beginning in November, 2008, Attorney James Ellis's firm

had made repeated inquiries to the BRB concerning any decision

on Kalu's application. The BRB promised him (repeatedly) that

it would provide him a copy, but did not. Attorney James Ellis

did not receive a copy of the decision until November of 2009.

James Ellis mailed Kalu's notice of appeal of the BRB's adverse

determination to CRAB on November 12, 2009.6

4
The daughter also threw away two mailed workers'
compensation checks.
5
The BRB argued to DALA and CRAB, and continues to argue on
appeal, that Kalu had not gone to Africa, that it was her
signature on the certified mail delivery receipt, and that the
DALA magistrate erred in crediting her testimony without
corroboration. Matters of credibility and weight are for DALA,
see Murphy v. Contributory Retirement Appeal Bd., 463 Mass. 333,
336 (2012), and ultimately CRAB, see id. at 336-337 & 344-345,
neither of which erred in crediting Kalu's testimony.
6
At various points in this appeal, the BRB claimed that it
sent the decision to Attorney Dennis Ellis in June of 2009,
because he was trial counsel. The BRB has also argued that it
should be presumed that it sent the decision to Attorney Dennis
Ellis because it was sent to Kalu. However, BRB offered no
witnesses at the hearing. Copies of the certified mailing to
Kalu and the signed delivery receipt were admitted in evidence,
but there were no exhibits showing that the notice of denial was
sent to Attorney Dennis Ellis. Neither the DALA magistrate nor
CRAB credited the claim that the notice was sent to Attorney
Dennis Ellis. The BRB argues on appeal that only Attorney
Dennis Ellis was entitled to notice because he alone appeared at
the hearing on this matter. Because there is no evidence of
 5

The BRB argued that Kalu's appeal was untimely because it

was not filed within fifteen days of June 26, 2009, the date of

signature on the certified mail receipt. The DALA magistrate

concluded, however, that the fifteen-day appeal period "does not

come into play until the appropriate person has received notice

of the board's decision." Because Kalu was represented by legal

counsel, the magistrate reasoned, "it was her legal counsel's

receipt of [the decision letter] that triggered the fifteen day

filing period and not . . . Kalu's receipt of that letter as

received by her daughter on June 26, 2009." CRAB likewise

concluded:

"[T]he appeal to DALA was filed 'within fifteen days of
notification of such action or decision of the retirement
board,' as required by G. L. c. 32, § 16(4). Under
§ 16(4), notification must be made to the 'person' who is
'aggrieved' by the decision. Where Kalu was represented by
counsel, notice to her counsel was, in effect, notice to
her, and commenced the fifteen-day appeal window. While it
was proper to send notice to Kalu as the 'person . . .
aggrieved' under § 16(4), we agree with the magistrate
that, where a retirement board is aware that a party is
represented by counsel, notice also must be sent to counsel
of record. A represented party is justified in expecting
that, after the commencement of a proceeding and the
appearance of counsel, copies of all notices will be sent
to her attorney."

The question before us is whether CRAB erred as a matter of

law in construing G. L. c. 32, § 16(4), as amended through

St. 1996, c. 306, § 21A, which provides in pertinent part:

notice as to either Attorney Ellis, the distinction is not
material.
 6

"[A]ny person . . . aggrieved by any action taken or
decision of the retirement board . . . may appeal to [CRAB]
by filing therewith a claim in writing within fifteen days
of notification of such action or decision of the
retirement board" (emphasis supplied).

See Fender v. Contributory Retirement Appeal Bd., 72 Mass. App.

Ct. 755, 760 (2008) (CRAB decision reviewable for error of law).7

"As with any statute, we review questions concerning the

meaning of an agency's enabling statute de novo. If the meaning

of a term is clear in the plain language of a statute, we give

effect to that language as the clearest expression of the

Legislature's purpose. If, however, the statutory language is

sufficiently ambiguous to support multiple, rational

interpretations, we look to the cause of [the statute's]

enactment, the mischief or imperfection to be remedied and the

main object to be accomplished, to the end that the purpose of

its framers may be effectuated." Peterborough Oil Co., LLC v.

Department of Envtl. Protection, 474 Mass. 443, 448 (2016)

(citations and quotations omitted). Additionally, "[w]hile the

duty of statutory interpretation is for the courts . . . an

7
A different provision of G. L. c. 32, § 16(4), as amended
by St. 1990, c. 331, requires an appeal to CRAB from a DALA
decision to be filed "within fifteen days after such decision"
(emphasis supplied). We express no opinion regarding notice
requirements under that provision. We also express no opinion
whether Kalu, if she had been unrepresented by counsel, would be
considered to have received statutory "notification" in the
circumstances. Cf. Anderson v. Billerica, 309 Mass. 516, 516-
518 (1941); Commonwealth v. Crosscup, 369 Mass. 228, 239-240
(1975).
 7

administrative agency's interpretation of a statute within its

charge is accorded weight and deference. . . . Where the

[agency's] statutory interpretation is reasonable . . . the

court should not supplant [its] judgment." Id. at 449

(quotation omitted).

The statute does not define "notification" (or any variant

of the term) and is ambiguous with respect to who must be

notified in the case of a represented applicant. See G. L.

c. 32, §§ 1, 16; Biogen IDEC MA, Inc. v. Treasurer & Receiver

Gen., 454 Mass. 174, 188 (2009) (undefined language in statute

is ambiguous where "susceptible of multiple, rational

interpretations"). We therefore look to the intent of the

statute, and any interpretive regulations, which also have the

force of law. See Entergy Nuclear Generation Co. v. Department

of Envtl. Protection, 459 Mass. 319, 329 (2011). See also

Global NAPs, Inc. v. Awiszus, 457 Mass. 489, 496 (2010) ("[A]

properly promulgated regulation has the force of law and must be

given the same deference accorded to a statute").

The Public Employee Retirement Administration Commission

(PERAC) promulgates regulations governing disability retirement

proceedings before local retirement boards. See 840 Code Mass.

Regs. §§ 10.00.8 These include a section specifically

8
The applicable regulations are those in effect at the time
of Kalu's application and the BRB's decision. See Middleborough
 8

authorizing representation by counsel before the local board,

and requiring counsel to file a written appearance providing

counsel's name, address, and telephone number to the board. See

840 Code. Mass. Regs. § 10.05(3) (1998).9 Counsel's name,

address, and telephone number are supplied for a reason.

"Indeed, we may presume that a party who has retained counsel

. . . has done so precisely because that party does not wish to

assume personal responsibility for complying with the various

procedural requirements of the [statute]. Moreover, the appeal

period . . . is very short; consequently, under [a] statutory

construction [where the appeal period begins upon notice to the

applicant], a party who receives notice of the . . . decision

must promptly forward such notice to his or her counsel to avoid

forfeiting the right to appeal. It is extremely unlikely that

the [L]egislature intended to impose such a burden on a party

who has retained counsel for the specific purpose of

v. Housing Appeals Comm., 449 Mass. 514, 517 n.8 (2007). No
relevant changes to those regulations occurred between the time
of application and decision. See Figueroa v. Director of Dept.
of Labor & Workforce Dev., 54 Mass. App. Ct. 64, 69-72 & n.11
(2002). The regulations were most recently revised in March of
2016, but we do not discern (and the parties do not raise) any
differences material to the issues before us in this appeal.
9
If benefits are denied, notification to the parties is
mandatory; "the board shall notify [PERAC] and notice of the
decision and right to appeal shall be sent to all parties
[within three days of the decision]." 840 Code. Mass. Regs.
§ 10.13(1)(b) (2000). See id. at § 10.13(3)(a) (2008). (See
now 840 Code Mass. Regs. § 10.13[1][c] [2016].)
 9

representing the party on such matters." Schreck v. Stamford,

250 Conn. 592, 598 (1999) (ten-day appeal period for workers'

compensation claim begins to run when counsel is sent notice).

CRAB's construction of the enabling statute is also

consistent with the practice in other fora,10 and promotes the

purposes of the statute. "It shall be the policy of the

retirement board to make every reasonable effort to assist

retirement system members to exercise all rights and obtain all

benefits to which entitled and as authorized by the laws

governing ordinary and accidental disability retirement, while

protecting the retirement system and the public against claims

and payments for disability retirement not authorized by law."

840 Code. Mass. Regs. § 10.02 (1998). Notifying counsel of the

disposition of an application for benefits is essential to the

preservation of the applicant's right to obtain benefits, where

warranted, and has no deleterious consequences in the event that

the applicant is not entitled to benefits under applicable law.

10
See Mass.R.Civ.P. 5(b), 365 Mass. 745 (1974) (requiring
service on counsel); CRAB Standing Order 2008-1 2(f) (as amended
June 12, 2009) (requiring service on authorized representative).
Unlike the Massachusetts Rules of Civil Procedure and the CRAB
Standing Order, the PERAC regulations do not contain a provision
that explicitly requires service on authorized representatives.
Given the importance of adequate notice for both retirement
boards and retirement system members across the Commonwealth,
regulatory clarity would be preferable to case-specific
adjudication.
 10

CRAB's determination that the appeal period began to run

when counsel received notice is reasonable, and is entitled to

deference. Kalu's appeal was timely because it was filed within

fifteen days of notice to counsel.

2. Entitlement to benefits. "It is well established that

judicial review of a CRAB decision pursuant to G. L. c. 30A,

§ 14, is narrow. 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. We set aside a

decision by CRAB only where it is legally erroneous or

unsupported by substantial evidence." Murphy v. Contributory

Retirement Appeal Bd., 463 Mass. 333, 344 (2012) (citations and

quotations omitted). We conclude that there was legal error in

the CRAB decision and that certain findings were not supported

by substantial evidence, and we remand for further proceedings.

a. Background. We briefly summarize those findings and

conclusions on which the DALA magistrate and CRAB relied,

leaving further facts for later discussion.

Kalu was a teacher of elementary school age special needs

students in the Boston Public Schools. At the time of the

accident leading to her claim, she had preexisting

osteoarthritis and degenerative changes in her knees. She had

undergone an arthroscopic procedure on both knees in 1994, some

eleven years before the events in question, and returned to work
 11

thereafter. On March 21, 2005, Kalu, who was posting materials

to a bulletin board in her classroom, hit her right knee against

a metal chair, twisted, and fell. She immediately saw the

school nurse. While the nurse was escorting her to her car, she

fell again and hit her right knee on her car. She was then

transported to the emergency room for treatment.

Kalu was out of work for a period of time, and elected not

to have arthroscopic surgery on the knee. She returned to work

in September of 2005 at a different school. She was assigned a

third-grade classroom in the basement. She received a teacher

evaluation with an over-all recommendation of "Needs

Improvement" in November, 2005.

While breaking up a fight between some of her students in

December, 2005, Kalu fell again. After further evaluation, she

had a surgical arthroscopy and partial meniscectomy on her right

knee on April 21, 2006. After a period of further review and

physical therapy, Kalu applied for accidental disability

retirement benefits on December 30, 2006, based on the March 21,

2005, injury to her right knee. Kalu claimed that her right

knee pain and other symptoms ("popping" and giving way of the

knee) rendered her unable to do the sustained standing and

walking that was required to perform her job as a teacher.

Between the time of her 2005 injury and the adjudication of

her claim, Kalu was seen by several physicians who were either
 12

treating her or retained to perform a review in connection with

her application for workers' compensation benefits.

Additionally, in accordance with the retirement statute, see

G. L. c. 32, § 6(3), a regional medical panel of three doctors

was convened. The panel doctors answered separate certificates

stating that Kalu's knee condition "might be" the natural and

proximate result of the March 21, 2005, incident.11 These

evaluations were sufficient to support the application for

benefits, see G. L. c. 32, § 7(1); Kelley v. Contributory

Retirement Appeal Bd., 341 Mass. 611, 616-617 (1961), and the

DALA magistrate so found.

The opinions of the other doctors were in conflict. The

DALA magistrate relied on the opinion of Kalu's surgeon, who

concluded that the 2005 accident aggravated her preexisting

osteoarthritis, that the aggravation continued even after the

repair of her torn right meniscus, and that she could no longer

perform the essential functions of her job. The magistrate also

relied on the opinion of Dr. Bulman, an independent medical

examiner, who stated that "her precipitous change in right knee

symptomatology" was due to the "loss of the meniscus due to the

11
The medical panel may not offer an unqualified opinion on
causation, because the ultimate conclusion on causation is for
CRAB based on the medical and nonmedical evidence; hence the use
of the term "might." See Lisbon v. Contributory Retirement
Appeal Bd., 41 Mass. App. Ct. 246, 254-255 (1996); Narducci v.
Contributory Retirement Appeal Bd., 68 Mass. App. Ct. 127, 134-
135 (2007).
 13

tear" incurred in 2005, which in his view hastened further

degeneration of the preexisting osteoarthritis condition. The

magistrate did not credit Dr. Shea, who concluded that Kalu had

been disabled from work for the periods March 21 to September,

2005, and again from December, 2005, to November 1, 2006, but

that the surgery and physical therapy had successfully resolved

the meniscal tear. Dr. Shea opined that any other symptoms she

suffered were due solely to the natural progression of the

preexisting osteoarthritis, and not the aggravation of a

preexisting condition.

The DALA magistrate concluded that the March, 2005,

classroom injury aggravated the preexisting osteoarthritis, and

was "the primary or natural and proximate cause" of the

disability, citing Noone v. Contributory Retirement Appeal Bd.,

34 Mass. App. Ct. 756, 761 (1993). This determination was based

on the corollary finding that as a special needs elementary

school teacher, Kalu needed to be able to stand and move about

her classroom for sustained periods of time. Based on Kalu's

unrebutted and uncontested testimony, the DALA magistrate found

that she was unable to stand or walk for those periods of time

(i.e., ten minutes or more) necessary to teach her eight year

old special needs students. The city of Boston certified that

she was unable to perform the essential functions of the job,

and that there was no reasonable accommodation to be made. The
 14

DALA magistrate therefore concluded that Kalu was disabled from

her usual occupation as a special needs classroom teacher.

CRAB adopted the DALA magistrate's subsidiary factual

findings, with five modifications. CRAB ultimately concluded

that Kalu failed to prove that her knee condition was caused by

the 2005 fall in the classroom, rather than her preexisting

osteoarthritis or the fall that took place later that day in the

parking lot.12 CRAB also concluded that Kalu had failed to prove

that standing for more than ten minutes at a time was an

essential function of her job, and that she failed to show that

she could not perform her job with reasonable accommodation.

CRAB also concluded that the surgery addressed all symptoms

associated with the fall, and that her injury was not permanent.

b. Standard of review. "CRAB is not bound by the DALA

administrative magistrate's recommendation. 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. 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 that rejection." Murphy v. Contributory Retirement

12
For purposes of our review we rely on the facts as found
by CRAB, to the extent that they are supported by substantial
evidence.
 15

Appeal Bd., 463 Mass. at 336-337 (citations and quotations

omitted).

An applicant for accidental disability retirement benefits

"has the burden of proving that [her] disability was causally

related to the personal injury sustained in the course of [her]

employment." Retirement Bd. of Brookline v. Contributory

Retirement Appeal Bd., 33 Mass. App. Ct. 478, 481 (1992), citing

Blanchette v. Contributory Retirement Appeal Bd., 20 Mass. App.

Ct. 479, 482-483 (1985). "The medical panel's certification

that the claimant's disability might be causally related to the

[work-related] injury 'is not conclusive of the ultimate fact of

causal connection but stands only as some evidence on the

issue. . . . The final determination in this case whether

causation was proved was reserved to [CRAB], based on the facts

found and all the underlying evidence, including both the

medical and non-medical facts.'" Ibid., quoting from Blanchette

v. Contributory Retirement Appeal Bd., supra at 483.

c. Medical records. The first reason offered by CRAB for

its conclusion that Kalu's proof of causation was lacking was

that she had "failed to provide any records or history

concerning her treatment and surgeries prior to her fall in

2005," and that "all but one or two of the ten physicians . . .

appear to have been unaware of this prior history and based

their opinions on causation on the assumption that her
 16

osteoarthritis had not been symptomatic prior to her fall at

work." In the absence of such records, CRAB concluded that it

was "impossible to know whether, for instance, any meniscus [had

been] removed or other conditions noted that would have affected

the progression of Kalu's arthritis."

The administrative record contains the medical records

submitted by Kalu in connection with her application. The

application form, which was provided and approved by PERAC, see

840 Code Mass. Regs. § 10.06 (1998), requested only five years'

worth of medical records.13 See 840 Code Mass. Regs.

§ 10.06(1)(g) (requiring applicant to submit records of

treatment for injury and medical records for the five years

prior to the application). Although it was argued before DALA

that Kalu had not been forthright about her medical history,14

13
PERAC has provided a printed application form in which
claimants are required to identify all providers who have
treated them for their condition in the last five years. Kalu
listed all providers, otherwise answered the questions on the
form, and later submitted to the BRB the medical records of the
listed providers.
14
The BRB argued in its prehearing memorandum to the DALA
magistrate that "the evidence in the record indicates that
[Kalu] has not been completely forthcoming and honest concerning
the extent of her pre-existing right knee conditions and/or any
previous knee injuries. In addition, it is apparent that [Kalu]
has not been completely forthcoming and honest about previous
surgeries to her knees."

At the DALA hearing, when asked if she had had previous
surgery, Kalu answered "no," but when asked by the DALA
magistrate about the arthroscopic procedure in 1994, she
 17

the BRB did not request the treatment records for her

arthroscopic procedure eleven years before her accident, thus

leaving the record bare of further medical substantiation of its

contentions. Under the PERAC regulations, the BRB was required

to obtain the additional records. See 840 Code Mass. Regs.

§ 10.09(1) (1998) (retirement boards "shall obtain any pertinent

information known to exist without regard to the five year time

period[]" and "shall conduct such investigation as may be

necessary to determine the facts"). The absence of medical

records other than those submitted by Kalu to the BRB -- in full

conformity with the approved application procedures -- was not

raised or argued before DALA. The DALA magistrate decided the

case on the basis of the facts presented.

CRAB may seek clarification of evidentiary matters not

adequately addressed by the parties before DALA. See Namay v.

Contributory Retirement Appeal Bd., 19 Mass. App. Ct. 456, 464

(1985). However, it must give adequate notice to the parties.

In adjudicatory proceedings, "[p]arties shall have sufficient

notice of the issues involved to afford them reasonable

opportunity to prepare and present evidence and argument."

testified that "the doctor looked into my knee," and that it was
not a surgery. Whether this was an exercise in semantics or
obfuscation was a credibility question implicitly resolved
favorably to Kalu by the magistrate, who credited her account of
the progression of her symptoms. CRAB cannot reject the
magistrate's implicit credibility finding on the basis that Kalu
withheld or failed to produce records when she did not.
 18

G. L. c. 30A, § 11(1), inserted by St. 1954, c. 681, § 1. See

Namay v. Contributory Retirement Appeal Bd., supra at 461 (CRAB

hearing is adjudicatory and "must be conducted in accordance

with the requirements of G. L. c. 30A, §§ 10 and 11"). Contrast

Yebba v. Contributory Retirement Appeal Bd., 406 Mass. 830, 837-

838 (1990) (where "any denial . . . of the opportunity to

litigate the . . . issue before CRAB was remedied by the

subsequent opportunity to do so before the [Civil Service]

[C]ommission"). Kalu produced all of the medical evidence

required by PERAC and requested by the BRB, and provided

sufficient evidence (i.e., the expert opinions of two doctors

and the support of the medical panel) to demonstrate a prima

facie case of causation. If the BRB did not produce evidence of

the rate of degeneration of the preexisting osteoarthritis

sufficient to permit CRAB to make a determination, the

appropriate remedy was to remand the case for supplementation of

the record and further findings. See Namay v. Contributory

Retirement Appeal Bd., supra at 464.15

15
Kalu had, in fact, met her burden of production. She
produced the reports of examining physicians who opined that the
March, 2005, fall was the cause of her injury. CRAB was not
obligated to accept those opinions, see Lisbon v. Contributory
Retirement Appeal Bd., 41 Mass. App. Ct. 246, 254 (1996), but
Kalu did provide evidence "sufficient to form a reasonable
basis" for a finding in her favor. Brodin & Avery,
Massachusetts Evidence § 3.2.1 (2016 ed.). Once she did so,
"the burden of production shift[ed] to the opponent" to produce
evidence to the contrary. Id. at § 3.2.2.
 19

In addition, CRAB's finding that only one or two of the ten

doctors had been aware of her "prior history" and that

physicians who supported her application assumed that prior to

the accident her osteoarthritis was "[a]symptomatic" is

unsupported by the record.16 As Dr. Shea noted, the scars from

the previous arthroscopic procedure were plainly visible to any

person who examined her, such as Dr. Oladipo, who performed the

meniscectomy.17 With the exception of two doctors, whose

opinions CRAB understandably rejected,18 the other fourteen

medical professionals (including emergency room personnel) noted

the previous history of osteoarthritis, and several discussed

her use of medication both before and after the 2005 injury.19

The fact of the previous arthroscopy was contained in Dr. Shea's

16
In addition to emergency room personnel, Kalu was
evaluated by twelve doctors -- Drs. Mason, Shea, Eslami, Troy,
Oladipo, Mortimer, Fraser, Bulman, Chaglassian, and the members
of the medical review panel, Drs. Galvin, Antkowiak, and Malloy
-- as well as a physician's assistant and a physical therapist.
17
Dr. Shea discovered the scars during his November 1,
2005, examination, and CRAB reasoned that "Dr. Oladipo, who
performed her 2006 arthroscopy, must have noticed that she had
prior surgery, but he does not mention it in his reports."
18
Dr. Fraser and Dr. Chaglassian. The reports of these
physicians stated she had no prior history.
19
For example, Dr. Bulman noted that Kalu's arthritis
symptoms were "tolerable" with Motrin before the accident, and
that as of August of 2007 her medications were Motrin and
Flexeril.
 20

medical records that were provided to each of the three members

of the medical review panel.

Finally, CRAB's declaration that it is "impossible to know"

if any of the meniscus was removed in 1994 is not supported by

substantial evidence. An MRI (magnetic resonance imaging)

examination was performed in 2006 which showed the meniscus, and

a meniscal tear. All of the medical professionals, including

Dr. Shea, agreed that the 2005 injury caused the meniscal tear

that interfered with the use of her knee, and rendered Kalu

disabled for some period of time; they parted ways only as to

the continued aggravation of the preexisting condition after the

2006 surgery to remedy the tear.

CRAB's ruling that Kalu had failed to produce records, or

worse, its suggestion that she withheld them, was born of an

error of law. Additionally, CRAB's related factual findings

were, in part, unsupported by substantial evidence. Both errors

inevitably permeated other aspects of its decision. While CRAB

asserted other grounds for its decision, it is not clear that

CRAB would have reached the same conclusions had it provided the

parties with adequate notice, and if it had had a fuller factual

record. For that reason, the appropriate remedy is not an award

of benefits, but a remand for further consideration. See Morris

v. Board of Registration in Med., 405 Mass. 103, 113-114 (1989);

Namay v. Contributory Retirement Appeal Bd., 19 Mass. App. Ct.
 21

at 464. We address the additional grounds on which CRAB relied,

for purposes of clarity on remand.

d. Fall in the parking lot. CRAB concluded that Kalu had

"failed to meet her burden of proof" as to causation because

none of the medical professionals had addressed the fact that

she fell and hit her knee while being escorted to her car after

falling at work. CRAB stated that "[w]ith no details about this

nearly contemporaneous injury to her right knee, Kalu has not

proven that her fall at work was the proximate cause of the

injuries she sustained that day."

Here, again, CRAB relied on a legal and evidentiary issue

not previously raised or addressed before the DALA magistrate.

Neither party identified the incident in the parking lot as

either the sole cause of the injury or an intervening cause

which broke the chain of causation. Those issues were not

tried. It was error for CRAB to deny benefits on that basis

without permitting the parties an opportunity to address them.

See G. L. c. 30A, § 11(1); Namay v. Contributory Retirement

Appeal Bd., supra at 461.

To be sure, the plaintiff retained the burden of persuasion

at all times, but it was legal error for CRAB to conclude, as a

matter of law, that the failure to anticipate issues not raised

by the retirement board was a reason to deny her benefits. "It

would be improper for CRAB to require that the plaintiff
 22

eliminate all other possible causes" of her injury. Robinson v.

Contributory Retirement Appeal Bd., 20 Mass. App. Ct. 634, 641

(1985).

In addition, CRAB's analysis fails to clearly articulate

the legal foundation upon which it rests, thus frustrating

meaningful appellate review. Cf. id. at 640-641. CRAB has

cited no authority in support of its conclusion. We understand

the underpinnings of its concern to be the rule of law explained

in Namvar v. Contributory Retirement Appeal Bd., 422 Mass. 1004,

1004-1005 (1996), and Richard v. Retirement Bd. of Worcester,

431 Mass. 163, 164 (2000), namely that the Legislature intended

to limit accidental disability retirement benefits to claimants

whose injuries result from the actual performance of their job

duties. See, e.g., id. at 165 (travel to work is not

compensable; travel during work hours mandated by employer is

compensable).

Because the parties did not litigate the effect of the fall

against the car, there was no evidence, and neither DALA nor

CRAB made findings or rulings regarding, whether Kalu was in the

performance of her duties when the second incident occurred.

Compare Murphy v. Contributory Retirement Appeal Bd., 463 Mass.

at 346-352 (evidence insufficient to show judge received

threatening letter while in performance of his duties), with

Retirement Bd. of Salem v. Contributory Retirement Appeal Bd.,
 23

453 Mass. 286, 290-291 (2009) (off-site heart attack caused by

stressful conversation at work compensable), and Robinson v.

Contributory Retirement Appeal Bd., 20 Mass. App. Ct. at 638.

Even if the evidence were to show that Kalu was not performing

her job duties at that time, the inquiry would not end there.

If the second time she slipped and hit her knee was the

foreseeable consequence of a previous on-the-job injury, the

second incident would not necessarily break the chain of

causation. See Retirement Bd. of Brookline v. Contributory

Retirement Appeal Bd., 33 Mass. App. Ct. at 481-482. Hence, the

bare fact of the second fall in one day does not provide a basis

for denying benefits as a matter of law.20

e. Essential duties. CRAB concluded that Kalu had not

proved that her essential duties as a teacher included

"prolonged standing, use of stairs, or intervening in fights."

CRAB thus rejected the explicit factual findings of the

magistrate, and the testimony of Kalu, which the magistrate

found credible, as well as the employer's certification that

Kalu was unable to perform the essential functions of her job

with reasonable accommodation. CRAB relied, in part, on the job

20
The absence of additional evidence concerning the fall
against the car is not proof that this incident was the cause of
her condition. See, e.g., Kunkel v. Alger, 10 Mass. App. Ct.
76, 86 (1980) ("It is settled that mere disbelief of testimony
does not constitute evidence to the contrary").
 24

description provided by the Boston Public Schools, which

contained no physical requirements for the job.

Under the applicable PERAC regulations, "[t]he

determination of what constitutes an essential duty of a job or

position is to be made by the employer, based on all relevant

facts and circumstances and after consideration of a number of

factors." 840 Code Mass. Regs. § 10.20 (2004).21 The employer's

determination of essential functions is not controlling,

however, and is subject to administrative review by DALA and

CRAB. See McLaughlin v. Lowell, 84 Mass. App. Ct. 45, 69 & n.28

(2013). In this case, the Boston Public Schools filled out the

questionnaire required by the regulations, certified that Kalu

was unable to perform the essential functions of the job, and

certified that there was no reasonable accommodation to be made.

See 840 Code Mass. Regs. § 10.07 (1998). The certification was

conclusory, however, in that it did not list what the physical

requirements of the job were, did not explain the factors

considered, and did not explain why accommodation to a person

with some mobility issues was not feasible.22

21
See now 840 Code Mass. Regs. § 10.21 (2016).
22
The PERAC regulations require the employer to provide
information on a number of factors:

"In making the determination as to whether a function or
duty is essential, the employer shall consider and provide
documentation to include, but not be limited to: (a) The
 25

We take no issue with CRAB's effort to find out what degree

of mobility was truly an essential function of the job. The

issue is a consequential one, with potential ramifications for

other teachers. Rather than seek additional information,

however, CRAB filled the gap with assertions that were

unsupported by the record. For example, CRAB opined that "there

is no reason why Kalu could not alternate standing and sitting

for instruction and conferencing," that improved classroom

management would alleviate her problems, and that "she did not

provide any evidence that she, rather than her aide, was

required to physically intervene" in fights between students.

CRAB also speculated that an aide could escort her students to

other activities, and that accommodations were available, based

on the record in a particular case before the Massachusetts

nature of the employer's operation and the organizational
structure of the employer; (b) Current written job
descriptions; (c) Whether the employer requires all
employees in a particular position to be prepared to
perform a specific duty; (d) The number of employees
available, if any, among whom the performance of the job
function can be distributed; (e) The amount of time that
employees spend performing the function; (f) Whether the
function is so highly specialized that the person in the
position was hired for his or her special ability to
perform the function; (g) The consequences of not requiring
the employee to perform the function; (h) The actual
experience of those persons who hold and have held the
position or similar position; and (i) Collective bargaining
agreements."

840 Code Mass. Regs. § 10.20 (2004). (See now 840 Code Mass.
Regs. § 10.21 [2016].)
 26

Commission Against Discrimination, but not a part of the record

in this case.23 These factual findings were made without

evidence bearing on the factors enumerated in the regulations,

curriculum requirements, accepted pedagogy, student needs or

behavior, staffing, school policy, history of accommodation, or

contractual obligations. "[CRAB] exceeded its proper role in

announcing, with no . . . evidence in the record to support it,"

that it departed from the magistrate's factual findings. Morris

v. Board of Registration in Med., 405 Mass. at 113. The

information on which findings are made "should be disclosed on

the administrative record." Ibid.

3. Conclusion. The question still remains whether Kalu's

injury resulted in a permanent condition that rendered her

incapable of performing the essential functions of her job, and

was the result of the aggravation of a preexisting condition of

23
We express no opinion on CRAB's apparent assumption that
the burden of proof regarding the lack of suitable accommodation
rests with Kalu. This case is unlike those arising under G. L.
c. 151B, § 4, where the employee claims that she is not
disabled. In those cases, the plaintiff carries the initial
burden of showing that she can perform the essential functions
of her job with or without reasonable accommodation. See
Labonte v. Hutchins & Wheeler, 424 Mass. 813, 822 (1997). In
disability retirement cases, the Supreme Judicial Court has held
that the essential duties of a job must be determined after an
employer has been given a reasonable opportunity to accommodate
an employee seeking disability retirement benefits. See Foresta
v. Contributory Retirement Appeal Bd., 453 Mass. 669, 680
(2009). The disability retirement cases have not squarely
addressed the burden of proof, and the PERAC regulations
regarding initial eligibility are silent as to burden of proof.
 27

osteoarthritis, or whether the injury to her knee was resolved

by surgery and any remaining disability was the result of the

natural progression of the preexisting condition. In answering

this question, CRAB properly considered evidence in the record,24

but erred as a matter of law by deciding questions not litigated

before DALA without providing the parties with notice and an

opportunity to present evidence. CRAB also made factual

findings without record support. On remand, CRAB may, in its

discretion, limit the issues under consideration to those raised

before DALA and decide the case based on the present record, or

it may recommit the case to DALA for the taking of additional

evidence. The judgment of the Superior Court is vacated with

instructions to remand the case to CRAB for further proceedings

consistent with this opinion.

So ordered.

24
For example, Dr. Shea opined that Kalu recovered fully
from the injury of March, 2005, and the physical therapist said
that she had a full range of motion.