Opinion
BOARD No. 038197-94
Filed: December 30, 1997
REVIEWING BOARD DECISION
(Judges Smith, Maze-Rothstein and McCarthy)
APPEARANCES
Paul Mancini, Esq., for the employee.
Steven Walsh, Esq., for the insurer.
The insurer appeals from the decision of an administrative judge awarding benefits to the employee under G.L.c. 126, § 18A, the "Act of Violence" statute. Because the judge had no jurisdiction to award c. 126 benefits, we reverse the decision.
This section provides: "An employee in a jail or house of correction of a county who, while in the performance of duty, receives bodily injuries resulting from acts of violence of patients or prisoners in his custody, and who as result of such injury is entitled to benefits under chapter one hundred and fifty-two, shall be paid, in addition to the benefits of said chapter one hundred and fifty-two, the difference between the weekly cash benefits to which he is entitled under said chapter one hundred and fifty-two and his regular salary, without such absence being charged against available sick leave credits, even if such absence may be for less than eight calendar days duration." St. 1953, c. 355, as amended by St. 1977, c. 1002.
Jencyowski was a lieutenant correction officer employed by the Plymouth County Correctional Institution. (Dec. 5.) On August 26, 1994, Jencyowski twisted his back running on some stairs after hearing a call for assistance or Code One, which could mean a fight or medical emergency. (Dec. 6, 9.) The insurer accepted the injury and paid § 34 benefits without prejudice from August 27, 1994 to January 24, 1995 and from March 15, 1995 to August 8, 1995. (Dec. 3.)
Jencyowski then claimed further §§ 30, 34 and 35 benefits and additional compensation under G.L.c. 126, § 18A, which would yield a compensation benefit of 100% of his average weekly wage rather than 60% as provided by G.L.c. 152, § 34. (Dec. 4.) The judge denied the claim at conference. (Dec. 3.) Following an evidentiary hearing, the judge ordered the self-insurer to pay Jencyowski § 34 benefits for the August 26, 1994 injury as well as the difference between his § 34 benefits and his average weekly wage pursuant to c. 126, § 18A. (Dec. 16.) The judge also denied Jencyowski's claim for an August 18, 1994 injury. (Dec. 14.)
The judge ordered this difference under c. 18A. It is clear that this was a scrivener's error and he was referring to G.L. c. 126, § 18A. (Dec. 16.)
The self-insurer appeals from this decision and raises several arguments. We find one dispositive. It contends that the judge exceeded his authority where he ordered it to pay to the employee the difference between his § 34 weekly benefits and his regular salary under the assault pay statute. We agree.
The intent of G.L.c. 126, § 18A is to provide certain state employees with full pay for the duration of the time during which they receive workers' compensation benefits. See Seibolt v. County of Middlesex, 366 Mass. 411, 413 (1974). An eligible state employee who has been assaulted in the line of duty receives G.L. c. 152 benefits plus, if he is injured by "patients or prisoners in his custody", the dollar difference between the weekly cash benefits and his regular wage. Id.; see Moog v. Commonwealth, 42 Mass. App. Ct. 925, 925-926 (1997) (construing an analogous provision of G.L.c. 30, § 58); G.L.c. 126, § 18A. Although it references c. 152 for purposes of setting the amount payable, G.L.c. 126, § 18A does not give the Department of Industrial Accidents authority over assault pay awards. Cf. Goggin's Case, 305 Mass. 309, 310-311 (1940).
The Department of Industrial Accidents is not a court of general or limited common-law jurisdiction. Hayes's Case, 348 Mass. 447, 452 (1965). It is purely and solely an administrative tribunal, specifically created to adjudicate workers' compensation disputes. Id. at 452-453. The authority and the statutory limitation upon its exercise cannot be enlarged, diminished, or destroyed by express consent or waived by acts of estoppel. Levangie's Case, 228 Mass. 213, 217 (1917).
The judge's authority in this case stems from G.L.c. 152, § 69. Section 69 provides authority only to adjudicate claims arising under the workers' compensation act, c. 152. The appropriate forum for the employee's claim under G.L.c. 126, § 18A is the constitutional courts and not the Department of Industrial Accidents, which is located in the executive branch of government. See Goggin, supra at 310-311.
General Laws c. 152, § 69 provides in pertinent part: "The commonwealth and any county, city, town or district having the power of taxation which has accepted chapter eight hundred and seven of the acts of nineteen hundred and thirteen, . . . shall pay to laborers, workmen, mechanics, and nurses, employed by it who receive injuries arising out of and in the course of their employment, or, in case of death resulting from such injury, to the persons entitled thereto, the compensation provided by this chapter . . . . No cash salary or wages shall be paid by the commonwealth or any such county, city, town, or district to any person for any period for which weekly total incapacity compensation under this chapter is payable, except that such salary or wages may be paid in full until any overtime or vacation which the said employee has to his credit has been used, without any deduction of any compensation herein provided for which may be due or become due the said employee during the period in which said employee may be totally incapacitated, and except that such salary or wages may be paid in part until any sick leave allowance which the employee has to his credit has been used, any other provisions of law nothwithstanding except as otherwise provided in a collective bargaining agreement. An employee who is entitled to any sick leave allowance may take such of his sick leave allowance payment as, when added to the amount of any disability compensation herein provided, will result in the payment to him of his full salary or wages."
Accordingly, since the administrative judge had no subject matter jurisdiction over G.L.c. 126, § 18A, we vacate and reverse assault pay award.
So ordered.
_____________________ Suzanne E. K. Smith Administrative Law Judge
_____________________ Susan Maze-Rothstein Administrative Law Judge
______________________ William A. McCarthy Administrative Law Judge
Filed: December 30, 1997