Lawsuits target retirement appeal delays at CRAB

In brief

• A Boston attorney filed a third federal lawsuit challenging delays at the Contributory Retirement Appeal Board.
• One of the plaintiffs alleges CRAB’s years-long delay in deciding her disability retirement appeal violates due process rights.
• The Attorney General’s Office says it supports a budget proposal to expand CRAB and reduce the backlog.
• Separate state court litigation seeks to force CRAB to issue decisions within statutory and regulatory deadlines.

The Attorney General’s Office believes it may soon have good news for Boston employment litigator Richard D. Glovsky.

Glovsky, like dozens if not hundreds of affected former public employees, is troubled by the lengthy delays in resolving claims for benefits by the Contributory Retirement Appeal Board.

The AG’s Office says it feels those claimants’ pain and hopes some measure of relief is soon on the way.

In the meantime, though, Glovsky plans to continue filing federal lawsuits on behalf of plaintiffs seeking to break the CRAB logjam.

At the end of April, Glovsky filed his third such lawsuit on behalf of a particularly sympathetic client. Kenya Hudson was a special education math teacher when she suffered a freak electrical injury while attempting to plug a computer into an outdated surge protector on May 13, 2013. The jolt caused a nearby student to yell an obscenity, and the smell of smoke lingered in her classroom for several minutes, according to the decision of a Division of Administrative Law Appeals magistrate.

The immediate injury, as observed by the school nurse, was a first-degree burn on her hand. But what prompted her to apply for disability retirement benefits on May 12, 2016, were cognitive deficits with short-term memory, focus, and word-finding that she developed and which never resolved.

The Boston Retirement System initially denied her application on Nov. 26, 2019, adopting a hearing officer’s recommendation on the basis that Hudson had not sustained her “burden of proving by a preponderance [of the evidence] that the May 2013 work incident has caused her permanent and total disability.”

Hudson then convinced a DALA magistrate to reverse the decision.

“A measure of wariness is a healthy quality in a board charged with protecting a retirement system’s finances,” Administrative Magistrate Yakov Malkiel wrote in his May 6, 2022, decision. “But intuitive skepticism must not seize control of the decision-making process.”

A “methodical analysis of the applicable requirements” led DALA to conclude that Hudson had established each of the elements to obtain accidental disability retirement benefits, given the medical expertise she had mustered to demonstrate that her disability was likely to be permanent and had occurred on the job.

But once BRS appealed Malkiel’s decision to CRAB, Hudson was back in limbo. She filed a motion for an expedited appeal on Aug. 8, 2022, but then heard nothing from the board for 21 months, according to her federal court complaint. In May 2024, she was told she was 95th on CRAB’s combined docket of disability and non-disability cases, she alleges.

The need to have her appeal resolved expeditiously took on new urgency when Hudson was diagnosed with cancer last summer, she informed CRAB.

When Hudson next heard from CRAB on Jan. 15, she was given a loose promise that CRAB might issue its decision within the next 60 days. But Glovsky knew better than to rely on that promise.

After the 60-day window came and went, Glovsky filed suit in U.S. District Court, alleging that the delays Hudson has experienced are a violation of her due process rights under the 14th Amendment and the state constitution. At the same time, Glovsky asked that the court issue a permanent preliminary injunction compelling CRAB to process Hudson’s appeal within 30 days.

“To be clear, Plaintiff does not seek an unfair advantage with respect to her disability retirement benefits,” Glovsky writes in the complaint. “She does not seek from this Court a favorable merits-based decision of BRS’s appeal before CRAB. Plaintiff asks merely that this Court order Defendants to afford Plaintiff her due process rights and determine her case in a reasonable time.”

Third time the charm?

For Glovsky, before Kenya Hudson, there was John Sorrentino — a former program administrator at the Department of Health — and Diana Back, who became disabled while working as an Eastham police officer.

U.S. District Court Chief Judge Denise J. Casper drew the Sorrentino case, so Glovsky filed Back’s and Hudson’s cases as “related” so that they would land on Casper’s docket as well.

I hate to say this, but it’s another example about why people don’t trust the government.

— Richard D. Glovsky, Boston

In Hudson’s case, a day after Assistant Attorney General David R. Marks entered an appearance on May 11 on behalf of CRAB and its three individual members, Casper issued an order setting a fast May 27 deadline for CRAB to file responses to the complaint and motion for a preliminary injunction.

“I can’t be certain what that means, but it does suggest to me that she’s looked at the papers, and she thinks perhaps there’s something compelling about it,” Glovsky said.

The defendants have requested an extension until June 12 to file their answer because Marks left the country for a long-planned trip on May 13 and is not returning until June 5. Glovsky said he was asked if he would agree to the extension.

“I politely told them I just can’t agree,” he said, noting how long his client has already waited for a decision from CRAB.

Glovsky can only guess how many appeals CRAB is able to resolve each month. But a little back-of-the-envelope math — Hudson was 95th on the list two years ago and still has not received a decision — suggests it is fewer than four a month.

“I hate to say this, but it’s another example about why people don’t trust the government,” Glovsky said. “These are people who are disabled, or at least allege they were disabled, believe they were disabled, and they have medical evidence, as Ms. Hudson does, that she is disabled. Then she gets the cancer diagnosis, and she still can’t get a decision out of them.”

Northborough lawyer Teresa B. Benoit, who handles accidental disability retirement cases, said Glovsky already deserves credit for spurring CRAB to pick up its pace, even if it is inadequate. She recalled a client who had been waiting for a CRAB decision since before the COVID pandemic and finally got an update on Jan. 25, 2023, that he was 31st on the list. He did not receive a decision until last summer.

“We’re not looking for favorable decisions,” she said. “We’re just looking for fair decisions in a reasonable amount of time.”

She noted that all her clients, like Hudson, were injured on the job and are now merely seeking to avail themselves of a system into which they had paid for years.

“They are not asking for something for nothing,” she said.

Glovsky has yet to convince a decision-maker that Sorrentino was improperly denied a “superannuation” retirement allowance because he was not credited for seven years’ worth of work for an entity DPH had designated as its sole provider of newborn screening services.

On July 23, Superior Court Judge Robert B. Gordon granted CRAB’s cross-motion for judgment on the pleadings, reaching the same conclusion as the State Board of Retirement, a DALA magistrate and then CRAB. As of the end of March, Glovsky’s appeal of Gordon’s decision had been fully briefed in the Appeals Court.

Maybe this AG’s Office will find a way to expedite CRAB’s processing, but this problem has festered, likely for decades. No one in authority seemed to care.

— Richard D. Glovsky, Boston

Though Glovsky has yet to be able to help Sorrentino secure the compensation he believes he is due, he was at least able to move the legal process forward with his federal lawsuit. The same was true in Back’s case. Glovsky filed her complaint in September, CRAB issued its decision, and the case was dismissed in January.

“The way the system is set up, you can’t go to court until CRAB decides,” Glovsky said. “So, it’s a Catch-22.”

While Glovsky was happy to have his previous cases before Casper become moot, he believes it would not be the worst thing if one of his cases, perhaps Hudson’s, went the distance.

“I am hoping that a judge will have an opportunity to look at one of these cases and add his or her views to the equation,” he said. “Perhaps that will make more of an impact on the commonwealth to rectify the situation.”

Different soldier, same war

Glovsky is not the only attorney who is tired of waiting on CRAB.

On April 27, Arlington attorney Leigh A. Panettiere filed a complaint in Suffolk Superior Court seeking a declaratory judgment and relief in mandamus on behalf of seven former public employees in disputes with the retirement boards of Amesbury, Woburn, Westfield, Attleboro, Methuen and Lawrence.

Her suit is grounded in G.L.c. 32, §16(4), and 801 CMR 1.01, which she says requires CRAB to issue a final decision within a reasonable and defined period — “six months” under the statute or “180 days” under the regulation.

Panettiere is asking for a judge to allow her to leapfrog CRAB by declaring the administrative magistrates’ decisions in her clients’ cases “final by operation of law,” accompanied by a non-substantive order permitting the parties to pursue judicial review under G.L.c. 30A, §14.

In their answer to the complaint, the municipal retirement boards are requesting a declaration that CRAB’s failure to issue a decision within 180 days does not render a DALA decision final. They are also seeking a declaration that the regulation containing the 180-day deadline, 801 CMR 1.01(11)(c)(3), is “contrary to the plain language of G.L.c. 32, §16(4) and its underlying purpose, and thus null and void.”

Nonetheless, the retirement boards are aligned with the plaintiffs as far as they want the judge to order CRAB to issue decisions in the plaintiffs’ appeals within 30 days, which would render the state court litigation moot.

Help on the way?

Established by G.L.c. 32, §16(4), CRAB is chaired by an assistant attorney general, currently Melinda E. Troy, and includes two other members appointed by the governor, the Department of Public Health and the Public Employee Retirement Administration Commission. The other current members of CRAB are Nicolle M. Allen and Fariyda Mulrain.

While the statute describes the board as “unpaid,” the AG’s Office last year hired an assistant AG to serve as chair of CRAB, with a salary of $126,531, according to an online ad.

In addition to chairing CRAB, the duties of the position were to encompass acting as a “resource” to attorneys in the AG’s Office, particularly those in the Constitutional & Administrative Law Division, relative to the state’s public retirement law, G.L.c. 32.

A spokesperson for AG Andrea J. Campbell told Lawyers Weekly in an emailed statement that the office recognized “that these delays may affect people’s daily lives. While CRAB is an independent body, we are actively engaged with our state partners around a supplemental budget provision to expand the board to enable it to move more quickly.”

The supplemental budget provision — Section 42 of the governor’s supplemental budget (H. 5377) — would allow the chair of CRAB to issue a formal notice of a backlog of appeals. That would then allow the AG, Public Employee Retirement Administration Commission, the governor and — if the backlog involves disability retirement or interim benefits — the secretary of health and human services to appoint up to four additional members to CRAB, who would then serve for up to three years or until the backlog is resolved.

Benoit called that possibility “amazing,” noting that an offshoot of the CRAB backlog is that it can be challenging for injured workers to find lawyers willing to take their cases, given that they know that, as things currently stand, they might be signing up for a six- or seven-year commitment to see a case through.

“They have to do something because it can’t continue like this,” she said.

The AG’s spokesperson added that the office is also “examining potential ways to expedite CRAB’s complex case processing and decisions.”

Those options could include utilizing expedited or summary decisions, where appropriate, particularly as to long-pending appeals, and providing additional staff support for disability determinations, which often involve a review of extensive medical and other records.

Glovsky says he will believe it when he sees it.

“Maybe this AG’s Office will find a way to expedite CRAB’s processing, but this problem has festered, likely for decades,” he said. “No one in authority seemed to care.”