On May 3, 1955, Edward B. Mathewson, a uniformed, paid member of the fire department of Cohasset and a member of the Norfolk County retirement system, applied for an accidental disability retirement allowance. G.L. (Ter. Ed.) c. 32, § 7, as appearing in St. 1945, c. 658, § 1, as amended. From a denial of his application by the Norfolk County retirement board he appealed to the respondent contributory retirement appeal board (which we shall call the appeal board), G.L. (Ter. Ed.) c. 32, § 16 (4), as so appearing, as amended. The appeal board affirmed the decision of the county board. Upon this petition for a writ of certiorari to quash the action of the appeal board, judgment was entered dismissing the petition. The petitioner appealed. G.L. (Ter. Ed.) c. 213, § 1D, inserted by St. 1943, c. 374, § 4. After his death his administratrix was substituted as party petitioner.
Except for procedure, the important question for decision is the effect the presumption that hypertension or heart disease is service connected, as defined by G.L. (Ter. Ed.) c. 32, § 94, added by St. 1950, c. 551, as appearing in St. 1951, c. 594, has upon earlier enacted provisions of the accidental disability retirement statute, namely, G.L. (Ter. Ed.) c. 32, § 7 (1), as appearing in St. 1945, c. 658, § 1;
From the return of the appeal board it appears that at the time of his application for the allowance in 1955 the petitioner was sixty-three years of age. He was examined by a medical panel of three physicians pursuant to G.L. (Ter. Ed.) c. 32, § 6, as appearing in St. 1945, c. 658, § 1, as amended. A majority of the panel found that he was suffering from "hypertensive arteriosclerotic heart disease, aortic
On July 7, 1955, the county board voted: "Inasmuch as a majority of the medical panel stated that in their opinion ... the disability is not the natural and proximate result of the accident or hazard undergone on account of which the retirement is claimed, it was unanimously voted to deny Mr. Edward B. Mathewson's request for an accidental disability allowance."
On December 16, 1955, the appeal board promulgated its decision, stating that it "does not consider that Edward B. Mathewson is entitled to be retired, on the record, on his application for accidental disability retirement."
Pertinent provisions relating to accidental disability retirement are found in G.L. (Ter. Ed.) c. 32, entitled "Retirement Systems and Pensions." "Any member ... who becomes totally and permanently incapacitated for further duty ... by reason of a personal injury sustained or a hazard undergone as a result of, and while in the performance of, his duties at some definite place and at some definite time ... upon his written application on a prescribed form filed with the [appropriate retirement (§ 1)] board ... shall be retired for accidental disability as of a date which shall be specified in such application.... No such retirement shall be allowed unless the board, after such proof as it may require, including in any event an examination
In Hunt v. Contributory Retirement Appeal Board, 332 Mass. 625, which was not a hypertension or heart disease case, we held that a retirement board acting under § 7 cannot allow a retirement for accidental disability unless there is before it, as a condition precedent to its finding, "a certification of such incapacity by a majority of the physicians" on the medical panel (page 627). The phrase "such incapacity" in § 7 must refer to the earlier part of that section where the right to apply for this kind of retirement is conferred upon a member "who becomes totally and permanently incapacitated ... by reason of a personal injury sustained or a hazard undergone as a result of, and while in the performance of, his duties." Under § 6 (3) (a) the medical panel must state whether the disability "might be the natural and proximate result of the accident or hazard
We turn to a consideration of § 94 added by St. 1950, c. 551, as appearing in St. 1951, c. 594, which provides: "Notwithstanding the provisions of any general or special law to the contrary ... any condition of impairment of health caused by hypertension or heart disease resulting in total or partial disability to a uniformed member of a paid fire department ... who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of such condition, shall be presumed to have been suffered in line of duty, unless the contrary be shown by competent evidence."
The opening phrase of § 94 invites litigation. The words, "Notwithstanding the provisions of any general or special law to the contrary," announce that an indefinite number of unidentified statutory provisions, if inconsistent, are repealed to the extent necessary to make § 94 effective. The only method of identifying inconsistent provisions and of determining the extent of their repeal lies in resort to the courts.
In meeting the problem of fitting § 94 into the statutes we are aided by various rules in the nature of axioms. Some meaning, if possible, must be given the later legislation. In its enactment the Legislature presumably knew the existing statute and common law. All the statutes must be construed, where capable, so as to constitute a harmonious whole consistent with the legislative purpose disclosed in the new act. Such purpose is to be gleaned from the reasons,
In Selectmen of West Springfield v. Hoar, 333 Mass. 257, we held that § 94 was pertinent to an application for an annuity made under § 89A by widows of police officers who died of heart disease. In so doing we relied upon the construction that § 94 embraced applications for an accidental disability retirement allowance made under § 7 by a living member. In Hough v. Contributory Retirement Appeal Board, 309 Mass. 534, 538-540, there is a discussion of the burden resting upon the member of a retirement system in trying to show that a disease or an impairment of health exists "by reason of a personal injury sustained or a hazard undergone as a result of, and while in the performance of, his duties at some definite place and some definite time."
No one presently contends that § 94 has anything to do with the functions of a medical panel in making a certificate of incapacity based upon its examination. The petitioner, however, does argue that "the evidence from the panel must be such as to enable the local board to apply the presumption in making its decision as required by the provisions of § 94." The medical panel, however, is not charged with the duty to provide statements of any evidence. Its function is fully performed by making a certification, which will be in itself in the nature of evidence before the local retirement board, and where unfavorable would be sufficient to rebut the presumption.
The real question is the subject matter of the certification which the medical panel must make upon the application of a member who alleges that his hypertension or heart disease is service connected. We have seen that upon all applications the medical panel must certify that the "member is mentally or physically incapacitated for further duty and that such incapacity is likely to be permanent." We are of opinion that this requirement is still applicable in hypertension or heart disease cases. Beyond this, however, it is our opinion that as a result of § 94 the further requirement that the
Obviously, this was not the course taken by the county board, which regarded the negative certificate of the medical panel as conclusive. There, accordingly, was error in its action, which should have been corrected by the appeal board.
It does not follow that there was error in the dismissal of the petition for writ of certiorari. The case falls within the provisions of the State administrative procedure act. G.L. (Ter. Ed.) c. 30A, inserted by St. 1954, c. 681, § 1. These were adjudicatory proceedings (§ 1 ). The contributory retirement appeal board is an agency rendering a final decision
We have considered the case on the merits in accordance with the preference of the parties, because the issues are of public importance and have been fully argued.