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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.