PATRICIA DANIELS vs. CONTRIBUTORY RETIREMENT APPEAL BOARD & others.

PATRICIA DANIELS vs. CONTRIBUTORY RETIREMENT APPEAL BOARD & others. [Note 1]

418 Mass. 721

September 9, 1994 - October 6, 1994

Middlesex County

Present: LIACOS, C.J., WILKINS, ABRAMS, & NOLAN, & LYNCH, JJ.

A Superior Court judge correctly dismissed a complaint under G. L. c. 30A, Section 14, seeking review of an administrative magistrate's denial of an application for accidental disability retirement benefits, where the employee had failed to file a written objection to the decision of the magistrate with the Contributory Retirement Appeal Board as required by G. L. c. 32, Section 16 (4), and thus had failed to exhaust her administrative remedies. [722]

CIVIL ACTION commenced in the Superior Court Department on February 11, 1993.

The case was heard by Maria I. Lopez, J., on a motion to dismiss.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Nancy M. McLean for the plaintiff.

Robert J. Munnelly, Jr., Assistant Attorney General, for Contributory Retirement Appeal Board & another.

Thomas F. Gibson for Middlesex County retirement board.

NOLAN, J. The sole issue is whether the Superior Court judge correctly dismissed the plaintiff's request for judicial review under G. L. c. 30A, Section 14 (1992 ed.), for failure to exhaust her administrative remedies. The plaintiff appealed.

Page 722

We transferred the case to this court on our own motion. There was no error.

The town of Weston employed the plaintiff as a bus driver for approximately seven months. She ceased working because of a claimed disability involving pain in her back and neck. She applied to the Middlesex County retirement board (MCRB) for accidential disability retirement benefits. A medical panel found her to be physically incapacitated but it found that her employment with the town did not cause her incapacity, as required by G. L. c. 32, Section 7 (1) (1992 ed.) (injury must be sustained "as a result of, and while in the performance of" duties).

After the plaintiff appealed, the Contributory Retirement Appeal Board (CRAB) assigned her case to the Division of Administrative Law Appeals for a hearing before an administrative magistrate who affirmed the denial of the plaintiff's application by the MCRB. It was at this juncture that error occurred. Instead of filing a written objection to the magistrate's decision which would have triggered a review by CRAB, the plaintiff filed in the Superior Court this action for review under G. L. c. 30A, Section 14. The defendants filed a motion to dismiss under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), urging as the ground the plaintiff's failure to exhaust her administrative remedies. The motion was correctly allowed.

The statute is clear in requiring the filing of a written objection to the decision of the magistrate with CRAB which "shall then pass upon the appeal within six months after the conclusion." G. L. c. 32, Section 16 (4) (1992 ed.). There is no statutory directive which takes this case out of the rule that administrative remedies should be exhausted before resort to the courts. Wilczewski v. Commissioner of the Dep't of Envtl. Quality Eng'g, 404 Mass. 787 , 792 (1989), and cases cited.

Judgment affirmed.

FOOTNOTES

[Note 1] Middlesex County retirement board, chairman of the Contributory Retirement Appeal Board, and the Attorney General.