FRANKLIN REGIONAL RETIREMENT BOARD v. CONTRIBUTORY RETIREMENT APPEAL BOARD (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After suffering a workplace injury, Michael Pellin ceased his employment as a school custodian. The Franklin Regional Retirement Board (FRRB) denied Pellin's application for accidental disability retirement (ADR) benefits under G. L. c. 32, § 7. After a series of appeals spanning over sixteen years and involving three decisions of the Contributory Retirement Appeal Board (CRAB) and two decisions of the Superior Court, judgment entered in the Superior Court affirming a decision of CRAB to affirm the decision of the Division of Administrative Law Appeals (DALA) granting Pellin ADR benefits. FRRB advances several arguments why the CRAB and Superior Court decisions were erroneous. For the following reasons, we affirm.

Background. In September 2006, Michael Pellin injured his lower back in the course of his work as an elementary school custodian while installing heavy batteries into a floor cleaning machine (battery incident). He heard a “pop” in his back during the incident. Prior to that incident, Pellin had a history of back injuries dating back to the mid-1990s.

The day after the battery incident, Pellin saw a chiropractor, Dr. Evans, and reported experiencing pain in the “mid to low back” and symptoms that were “constant and sharp and radiated to the lower and upper extremities with numbness in the front of the legs and the hand.” Dr. Evans also diagnosed Pellin with lumbar “strains/sprains.”

Pellin briefly returned to work, but his back pain was prohibitive. In August 2007, he applied to FRRB for ADR benefits, pursuant to G. L. c. 32, § 7. Pellin claimed that the injury he sustained from the battery incident had rendered him permanently unable to perform the essential duties of his custodian job, such that he should be retired for accidental disability.

A series of medical evaluations between 2006 and 2008 suggested two potential disabling injuries stemming from Pellin's lumbar spine and thoracic spine. A May 2007 lumbar spine MRI showed mild to moderate disc bulging in Pellin's lower lumbar spine. Thoracic spine MRIs showed a syrinx at the T3 level and fluid level compressing and displacing the spinal cord from the T4 level down. Pellin's neurosurgeon, Dr. McKay, noted that Pellin had continued to have low back pain, poor mobility, and inability to work. She concluded that trauma from the battery incident had exacerbated a preexisting lumbar degenerative disc condition and had also caused an arachnoid cyst and syrinx on the thoracic spine (collectively, thoracic cyst), which were in turn causing cord compression. In October 2007, Dr. McKay performed a laminectomy to remove the arachnoid cyst.

Dr. Corsetti, evaluating Pellin in May 2008, diagnosed Pellin with persistent thoracic spine pain and lumbar radiculitis. He opined that both diagnoses were “causally related” to the battery incident “[t]o a reasonable degree of medical certainty,” even taking into consideration Pellin's “long history of pre-existing low back pain.” Dr. Corsetti theorized that the trauma from the battery incident “more probably than not” caused the thoracic cyst, and the medically necessary removal of that cyst was related to the thoracic pain. He noted that lumbar spine motion was fifty to seventy-five percent of normal, and thoracic spine motion approximately twenty-five percent of normal.

In contrast, findings of several doctors prior to the removal of the cyst focused on the connection between the battery incident and a lumbar injury and doubted the condition's permanency. Based on a December 2006 evaluation, Dr. Antkowiak opined that the battery incident likely caused an “aggravation of a pre-existing degenerative condition within [Pellin's] lower back.” Dr. Silver, evaluating Pellin in May 2007, noted that he had “sustained a lumbar strain” from the battery incident, had limited range of lumbar motion, and diagnosed him with mechanical low back pain secondary to obesity and thoracic strain. Dr. Wieneke opined in August 2007 that the thoracic cyst was incidental and unrelated to the battery incident and diagnosed Pellin with “acute lumbosacral strain syndrome” attributed to the battery incident and “incompletely resolved.” Each of these three doctors opined that Pellin was exaggerating his symptoms and could return to work if he limited his lifting and worked toward weight loss and conditioning.

Furthermore, Dr. Levine, a neurologist, noted from a record review that Pellin principally reported pain after the battery incident in his lower back, and opined that there was no causal relationship between the battery incident and the thoracic cyst nor between the upper thoracic abnormalities and Pellin's low back pain.

In June 2008, the FRRB voted to appoint a regional medical panel (first panel) to examine Pellin and certify whether he met the prerequisites for accidental disability retirement. See G. L. c. 32, § 6 (3).

In November 2008, the first panel reported that Pellin's low back injury had resolved and that the thoracic cyst, although permanently disabling, was incidental and “not such as might be the natural and proximate result of the [battery incident].” The first panel certified that Pellin satisfied the incapacity and permanency requirements, but that his incapacity was not causally related to the battery incident. In November 2008, FRRB voted to deny Pellin's application for accidental disability. Pellin appealed the denial to DALA, and in November 2012, an administrative magistrate of DALA affirmed. Pellin appealed to CRAB.

In September 2013, CRAB vacated the DALA decision and remanded to FRRB (Pellin I), finding that the first panel's “certificate was legally insufficient because its negative opinion concerning causation was not supported or explained by the certificate or the medical record.” On remand, CRAB directed FRRB to have the medical panel reconsider “whether causation is possible in light of all the relevant facts.”

Because the first panel was no longer available, a new regional medical panel (second panel) was convened and examined Pellin in December 2014. It reported a diagnosis of “chronic back pain secondary to lumbar strain, osteoarthritis of the lumbar spine, and exaggerated by the individual's obesity and deconditioning.” The second panel issued a certificate in January 2015, unanimously concluding that Pellin had satisfied all the ADR prerequisites, including causation. However, the second panel's report contained apparently contradictory statements. To wit, the report first stated that

“The disability is likely not the direct result of the work-related incident or accident described. Arachnoid cysts in the thoracic region appear to be usually congenital rather than acquired and the syrinx almost surely antedates the finding of the arachnoid cyst on imaging tests․” (emphasis added).

But the report continued:

“It is also our opinion that said incapacity is such as might be the natural and proximate result of the personal injury sustained or hazard undergone on account of which retirement is claimed.”

In March 2015, FRRB asked for clarification as to whether it was “medically possible” that the battery incident was the natural and proximate cause of Pellin's incapacity.

In July 2015, the second panel issued a clarification that the word “not” in its prior “statement of the disability” was “inappropriate.” The second panel stated that the “[t]he disability is likely the result of the work-related incident or accident described.” However, it clarified that the arachnoid cyst was not the cause of the disability, rather “[h]e is disabled by the injury to his lower back which would likely be further exacerbated were he to return to any type of physical labor.”

In February 2016, FRRB again voted to deny Pellin's ADR claim. Pellin appealed to DALA, and an administrative magistrate reversed FRRB's decision and remanded the matter to FRRB with directions to grant Pellin's application for ADR benefits. FRRB appealed to CRAB, and CRAB affirmed DALA in August 2022 (Pellin II). However, CRAB's affirmance was based on a theory of Pellin's disability different from the theory certified by the second panel and adopted by DALA. CRAB rejected the second panel's certification of causation with respect to a lumbar spine injury as unsupported by substantial evidence. Instead, CRAB found that “[t]he medical records demonstrate the [thoracic] cyst to be traumatic in nature, stemming from the [battery incident,] resulting in a disabling thoracic spine injury.”

FRRB sought judicial review in the Superior Court of both Pellin I and Pellin II. A Superior Court judge (first judge) ruled that CRAB's remand in Pellin I was proper “[i]n light of the first medical panel's cursory and unclear conclusion regarding causation ․” However, the judge vacated Pellin II after determining, inter alia, that CRAB had exceeded its authority by substituting its medical opinion as to Pellin's disability for the second panel's, and therefore Pellin II was both erroneous as a matter of law and unsupported by substantial evidence.

In March 2024, CRAB issued its decision after remand from the Superior Court (Pellin III). CRAB adopted the theory of Pellin's disability as certified by the second panel and concluded that Pellin was entitled to ADR benefits. FRRB sought judicial review of Pellin III in the Superior Court, and a second judge affirmed. This appeal followed.

Discussion. 1. Standard of review. Under G. L. c. 32, § 7 (1),

“[a]ny member in service ․ who is unable to perform the essential duties of the member's job and [whose] inability is likely to be permanent before attaining the maximum age for the member's group by reason of a personal injury ․ sustained or a hazard undergone as a result of, and while in the performance of, the member's duties ․ without serious and willful misconduct on the member's part ․ shall [upon written application] be deemed retired for an accidental disability.”

See 840 Code Mass. Regs. § 10.04(1) (1998). A claimant has “the burden of proving to CRAB, by a preponderance of the evidence, the requisite causal relationship between his disabling personal injury and a work-related accident or incident.” Murphy v. Contributory Retirement Appeal Bd., 463 Mass. 333, 345 (2012).

On appellate review under G. L. c. 30A, § 14 (7), “[w]e are not called upon to determine whether the CRAB decision is based on the ‘weight of the evidence,’ nor may we substitute our judgment for that of CRAB․ A court may not set aside a CRAB decision unless the decision is legally erroneous or not supported by substantial evidence” (citation omitted). Retirement Bd. of Salem v. Contributory Retirement Appeal Bd., 453 Mass. 286, 289 (2009). Substantial evidence is “such evidence as a reasonable mind might accept as adequate to support a conclusion,” after taking into consideration opposing evidence in the record. G. L. c. 30A, § 1 (6). See Narducci v. Contributory Retirement Appeal Bd., 68 Mass. App. Ct. 127, 136 (2007).

2. CRAB's remand in Pellin I. FRRB argues that CRAB's decision to remand in Pellin I was erroneous because its “primary basis for doing so was impermissibly relying on extra-record evidence to undermine the [f]irst [p]anel's opinion regarding the thoracic cyst's origin.” We are unpersuaded.

G. L. c. 32, § 6 (3) (a), requires that a medical panel of three doctors conduct an independent examination of the applicant and issue a certificate as to (1) the applicant's incapacity for further duty, (2) the likelihood that the incapacity is permanent, and (3) “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 such retirement is claimed ․” Affirmative certifications on all three questions are a prerequisite to a local retirement board's grant of ADR benefits. See Malden Retirement Bd. v. Contributory Retirement Appeal Bd., 1 Mass. App. Ct. 420, 423-424 (1973). However, G. L. c. 32, § 16 (4), which provides the applicant with the right to appeal adverse retirement board decisions to CRAB, “does not intend ․ that the applicant be foreclosed ․ by a certificate made without conforming to the required procedure ․ and review of all the pertinent facts.” Kelley v. Contributory Retirement Appeal Bd., 341 Mass. 611, 617 (1961). See Noone v. Contributory Retirement Appeal Bd., 34 Mass. App. Ct. 756, 764 (1993). A panel must “explain or justify its negative answer on causation.” Id. at 762.

Contrary to FRRB's assertion, the primary basis for CRAB's decision in Pellin I was that the first panel's negative certificate of causation was insufficient as a matter of law because it failed to justify or support its conclusion that Pellin's thoracic cyst could not have been caused by the battery incident and demonstrated a failure to consider relevant facts in the record. In particular, the first panel's assertion, without any explanation, that Pellin's thoracic cyst was “incidental” and not such as “might“ be the natural or proximate cause of the battery incident was unjustifiable in light of Dr. McKay's record opinion that the cyst was caused by the battery incident. Additionally, the first panel's statement that their record review “did not identify pain in the region identified ․ which ultimately led to the performance of a thoracic laminectomy” was irreconcilable with record evidence of Pellin's treatment indicating pain in that area. These points alone were enough to support CRAB's determination that the first panel's report and certification were legally insufficient. See Noone, 34 Mass. App. Ct. at 763-764.

Although FRRB correctly points out that it is impermissible for CRAB to “rely on extra-record evidence,” that is not what happened here. See Hollup v. Worcester Retirement Bd., 103 Mass. App. Ct. 157, 162 (2023) (impermissible for CRAB to cite and rely on extra-record websites to justify conclusion contrary to psychiatrists on regional medical panel that anger management treatment was “psychiatric treatment”). The references to extra-record medical literature in Pellin I helped to reinforce and contextualize CRAB's explanation as to the legal insufficiency of the first panel's certification, but unlike in Hollup, CRAB's decision did not “rely” on them -- where the decision would have been adequately supported after excising the references and confining itself to the administrative record and common sense.

3. Superior Court's vacatur of Pellin II. FRRB contends that the first judge erred in vacating so much of CRAB's decision in Pellin II as found that there was insufficient evidence for Pellin to establish causation related to a disabling lumbar spine injury.² We disagree.

The purpose of the prerequisite established by G. L. c. 32, § 6 (3) (a) for the medical panel to provide affirmative answers “is to vest in the medical panel the responsibility for determining medical questions which are beyond the common knowledge and experience of the members of the local board (or [CRAB]).” Malden Retirement Bd., 1 Mass. App. Ct. at 423. Although an affirmative answer from the medical panel on causation is “in the nature of evidence before the local retirement board” (citation omitted), id. at 424, and is not “decisive of the ultimate fact of causal connection,” id., CRAB is not permitted to “second guess[ ] the supported judgment of the doctors on the regional medical panel” without adequate basis in the record. See Hollup, 103 Mass. App. Ct. at 162.

Here, CRAB primarily based its rejection of the second panel's affirmative answer as to causation on CRAB's own interpretation of an X-ray and an MRI. In particular, CRAB reasoned that if the battery incident had aggravated Pellin's lumbar degenerative disc disease or worsened an injury to his lumbar spine, then those changes “would have been noted on diagnostic imaging,” whereas the X-ray from three days after the battery incident only indicated “mild osteoarthritis of the spine.” CRAB opined that the lumbar disc bulge indicated by the follow-up, May 2007 MRI could be the result of Pellin's “age, obesity, smoking and increased sedentary lifestyle since he ceased working” rather than trauma from the battery incident. CRAB also based its rejection on the fact that certain indications from a physical exam in December 2006 (three months after the battery incident) appeared to be less negative than similar indications from an exam conducted in May 2008.³

In short, CRAB's rejection of the second panel's answer on causation was predicated on CRAB's independent assumptions about when and how injuries to the lumbar spine would manifest in diagnostic imaging and physical examinations. These assumptions and the inferences drawn therefrom, which were not attributed to any medical reports in the record and supplanted the opinions of Drs. McKay and Corsetti, transgressed far “beyond the common knowledge and experience of the members of [CRAB]” into the realm of specialized medical knowledge. Malden Retirement Bd., 1 Mass. App. Ct. at 423. Because CRAB was not permitted to second guess the second panel on questions involving its medical expertise without basis in the record, see Hollup, 103 Mass. App. Ct. at 162, we conclude that the first judge's vacatur of this portion of Pellin II was appropriate.

4. Substantial evidence to support Pellin III. FRRB argues that CRAB failed to render factual findings in Pellin III, as required by G. L. c. 30A, § 11 (8), that were necessary to permit meaningful judicial review of whether there was substantial evidence of causation.⁴ See G. L. c. 30A, § 11 (8) (requiring generally that agency decision be “accompanied by a statement of reasons for the decision, including determination of each issue of fact or law necessary to the decision”). It further argues that CRAB's decision in Pellin III is not supported by substantial evidence. These arguments lack merit.⁵

CRAB's decision in Pellin III adopted the findings of fact of the preceding DALA decision and incorporated both prior DALA decisions and Pellin I by reference. CRAB's decision explained that Pellin had met his burden to show entitlement to ADR benefits based on a review of the “totality of the medical and nonmedical evidence in the record.” As evidence of the causal link between the battery incident and a disability based on lumbar injury, CRAB noted that Pellin's notice of injury stated that he sustained an injury to his lower back from the battery incident, and that the employer's first report of injury also reflected an injury to his lower back. CRAB also mentioned the second panel's certification that Pellin's incapacity “might be the natural and proximate result” of the battery incident and opinion that Pellin could not safely return to a physical labor occupation due to the likelihood that his lower back injury would be further exacerbated. See Lisbon v. Contributory Retirement Appeal Bd., 41 Mass. App. Ct. 246, 254 (1996) (certification of “medical possibility” of causation stands as “some evidence on the issue” [citations omitted]). See also Dimitropoulos's Case, 343 Mass. 341, 345 (1961) (finding of partial incapacity warranted where employee, under competent medical advice, refrains from returning to work because of a “considerable risk of reinjury”).

In addition to the evidence explicitly noted in Pellin III, the findings of fact considered by CRAB and recounted above with minor supplementation from the record, provided ample evidence for a reasonable mind to conclude that Pellin's incapacity was a result of either a lumbar injury or an aggravation of a preexisting lumbar condition sustained from the battery incident. See Robinson v. Contributory Retirement Appeal Bd., 20 Mass. App. Ct. 634, 638 (1985). Several doctors who evaluated Pellin after the battery incident reported that he presented with low back pain and limited lumbar mobility; they variously diagnosed Pellin with lumbar or lumbosacral sprains or strains (Evans, Silver, Wieneke), lumbar radiculitis (Corsetti), or aggravation of preexisting degenerative lumbar conditions (McKay and Antkowiak) stemming from the battery incident.

Although FRRB correctly points out that there was some evidence in the record to support contrary views about Pellin's disability, we “may not displace [CRAB's] choice” between “two fairly conflicting views” (citation omitted), Lisbon, 41 Mass. App. Ct. at 257, where, as here, CRAB's “selection reflects reasonable evidence.” Id. We conclude that Pellin III was supported by substantial evidence and was not erroneous, and we thus affirm the Superior Court judgment dated April 25, 2025, affirming CRAB's decision.

So ordered.

FOOTNOTES

2.   FRRB concedes that vacatur of the portion of Pellin II pertaining to the thoracic spine was proper.

3.   We note that Pellin's laminectomy occurred in between those exams, in October 2007.

4.   Although FRRB advances this argument without qualification in its brief, the body of the argument does not address any aspect of G. L. c. 32, § (7) (1), or G. L. c. 32, § 6 (3), other than causation. We limit our review accordingly. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).

5.   FRRB additionally argues that it was incumbent on CRAB to explain its change of position on the issue of a lumbar spine disability from Pellin II to Pellin III. However, G. L. c. 30A, § 11 (8), requires an agency only to provide a “statement of reasons for the decision” (emphasis added), not a statement of reasons against a prior, vacated decision. FRRB cites to no authority indicating otherwise.