RETIREMENT BOARD OF ANDOVER vs. CONTRIBUTORY RETIREMENT APPEAL BOARD & another.

RETIREMENT BOARD OF ANDOVER vs. CONTRIBUTORY RETIREMENT APPEAL BOARD & another. [Note 1]

15 Mass. App. Ct. 1003

April 29, 1983

A fire fighter in the town of Andover

Page 1004

for nineteen and a half years, the claimant Derosier, following extended sick leave, resigned his position as of November 1, 1976, when he was six months short of superannuation. On request, the Andover retirement board (ARB) repaid Derosier his total accumulated retirement deductions. In June, 1978, he was hospitalized for coronary artery disease with angina. He was then advised that the heart condition was job related: in fact in 1967 he had experienced chest pains and been taken from his fire station to the hospital. Accordingly, Derosier applied to ARB for accidental disability retirement, tendering back the retirement deductions. A medical panel appointed by ARB found unanimously that the heart condition began and developed while Derosier served as a fire fighter. However, ARB denied his application on the ground that he was not a "member in service," as required by G. L. c. 32, Section 7(1), inserted by St. 1945, c. 658, at the time he applied. The ruling was reversed by the Contributory Retirement Appeal Board (CRAB). On review at the instance of ARB under the State Administrative Procedure Act, c. 30A, Section 14, the Superior Court entered judgment affirming CRAB's decision. ARB appeals. We agree with the judgment. In the light of Gannon v. Contributory Retirement Appeal Bd., 338 Mass. 628 , 632 (1959), and Boston Retirement Bd. v. McCormick, 345 Mass. 692 , 695-696 (1963), we stated in State Retirement Bd. v. Contributory Retirement Appeal Bd., 12 Mass. App. Ct. 306 , 308 (1981), that "[i]t is the employee's status at the time of [the] accident that determines eligibility under G. L. c. 32, Section 7(1)." There is no circumstance in the present case that renders the statement inapplicable.

Judgment affirmed.

FOOTNOTES

[Note 1] Alfred Derosier, Jr.