Retirement – Accidental disability – EMT

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Where a lieutenant for Boston Emergency Medical Services who was injured while working in the field and could no longer perform the heavy lifting required of a field EMT was granted accidental disability retirement by the Boston Retirement Board because the ability to perform heavy lifting was essential to her position, that decision should be affirmed because the position her employer offered after her injury, as a lieutenant in the dispatch division, was not similar in responsibility or purpose to her position as a lieutenant in the field.

“Gretchen Fox worked as an emergency medical technician (EMT) and then a lieutenant for Boston Emergency Medical Services (EMS), which is a bureau of the Boston Public Health Commission. She suffered a right shoulder injury while working in the field as a lieutenant and, in 2022, the Boston Retirement System approved her application for accidental disability retirement. The Boston Public Health Commission timely appealed the Retirement System’s action. …

“I do not accept the Public Health Commission’s contention that, because it can transfer lieutenants to different divisions, all lieutenant jobs are the same. The Commission asserts that a lieutenant’s role is primarily supervisory and hence moving from supervising field EMTs to supervising EMTs in dispatch is not a significant job change. That is belied by the Commission’s admission that Lt. Fox’s shoulder injury means that she can no longer work as a lieutenant in the field. The reason for this is obvious. Field lieutenants do not simply supervise EMTs. They can and do take part in the physical tasks that field EMT’s perform. Lt. Fox’s injury is a prime example of this. She appears to have been the first EMT to arrive at the scene, and she took quick action to try to prevent a suicide, which led her to tackle a potential jumper thereby causing her injury.

“Lt. Fox was injured while performing her job, and she went through numerous rounds of physical therapy and a surgery trying to recover from her shoulder injury. Her right shoulder remains weak and cannot tolerate strenuous exertion; it also causes her pain and makes some routine daily activities difficult to perform. All three medical panelists supported her application and there is no contrary medical evidence that suggests she can still perform the physical tasks associated with work as a lieutenant in the field. Thus, there is ample evidence in the record to support the Boston Retirement System’s grant of accidental disability retirement to Lt. Fox so long as the relevant question is whether she is disabled from working as a field lieutenant.

“The question remains, however, whether Lt. Fox should have been evaluated to determine whether she can still perform the duties of a lieutenant in dispatch. The Commission’s position is that the lieutenant in dispatch position was an acceptable accommodation of Lt. Fox’s injury and therefore her ability to perform that job should have been evaluated consistent with the approach set forth in Foresta v. Contributory Retirement Appeal Bd., 453 Mass. 669 (2009). …

“The net result of Foresta is that if an employer has modified an employee’s job duties post-injury so that they are similar in responsibility and purpose to those performed by the employee at the time of injury, then the employee’s eligibility for accidental disability retirement should focus on whether he can perform the duties of the job as modified. … That must also mean that if a modified job is not similar in responsibility or purpose to those performed by the employee at the time of injury or would cause a loss of pay or other benefits, then the analysis should focus on the job the employee held when injured.

“The actual duties of a field lieutenant and a lieutenant in dispatch are dissimilar, as demonstrated by the very different descriptions offered by the Commission of the duties of each position. …

“Not only are the day-to-day job responsibilities of field lieutenants and dispatch lieutenants fundamentally different, but the overarching purposes of these two jobs are different as well. The Public Health Commission contends that both positions participate in the overall goal of Boston EMS to provide emergency medical care to those in need. That is true, but unhelpful. To take such a broad view would be to say that everyone who works for an organization works to serve the organization’s overall goal and hence every job in the organization has a similar purpose. For example, a shortstop and a person selling hot dogs in the stands both serve a baseball team’s purpose of providing entertainment to the fans who attend a ballgame. But the purpose of one of them is to play baseball and the other to sell food.

“The court in Foresta must have meant the purpose of the particular job, not the purpose of the agency as a whole. Here the purpose of a lieutenant in dispatch is to make sure that the appropriate response is provided to those who make a 911 call and help is dispatched. The purpose of a lieutenant in the field is to ensure medical help is provided to a patient, including providing that care themselves These jobs thus have different purposes.

“… It would not have been possible to keep Lt. Fox as a field lieutenant but relieve her of the physical aspects of the job of a field EMT because field lieutenants must be able to perform the physical duties of a field EMT. To say that reassigning her to serve as a lieutenant in dispatch would be an adequate accommodation — because she would still hold a supervisory role — overlooks the fundamental differences between lieutenants in dispatch and lieutenants in the field. There is also the unexplored assumption that Lt. Fox could perform the duties of a lieutenant in dispatch. In Foresta, the medical panel looked at both whether Mr. Foresta could perform his original job and whether he could perform the revised job offered him. Although it would have been useful if the medical panel had commented on whether Lt. Fox was capable of working as a lieutenant in dispatch, that did not happen here. I put the absence of analysis of the lieutenants in dispatch position down to the fact that it does not appear that the panelists were explicitly asked to opine on whether Lt. Fox was disabled from working in dispatch and to the absence of evidence on which the panelists could have formed an opinion. The Boston Public Health Commission submitted job descriptions for EMTs and for lieutenants with its Employer’s Statement, but no job description for dispatch — let alone for a lieutenant in dispatch. In future, if a job is offered to an injured member and there is some dispute as to whether it is an accommodation that fits the standard set forth in Foresta, it would be useful if a medical panel were told to opine on whether the member was disabled from performing the revised job and provided with enough information about the duties of the revised job to make such a determination. …

“Ultimately, I conclude that the lieutenant position offered to Lt. Fox in dispatch was not an accommodation that met the standard set forth in Foresta. Therefore, all that needed to be considered was whether Lt. Fox was disabled from her position as a lieutenant in the field, a job that required she be able to perform the work of a field EMT. The evidence establishes that she is disabled from that job, her disability is permanent, and it was caused by the injury she suffered on October 21, 2016 while she was performing her job. I therefore affirm the decision of the Boston Retirement System to award her accident disability retirement.”

Boston Public Health Commission v. Boston Retirement System (Lawyers Weekly No. 27-156-25) (22 pages) (Rooney, First Administrative Magistrate) (Division of Administrative Law Appeals) Andrea M. Milyko for the petitioner; Edward H. McKenna for the respondent (Docket No. CR-22-0357) (Dec. 12, 2025).

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