Opinion
14-P-935
06-08-2015
MARK MARCHAND v. DEPARTMENT OF CORRECTION.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal by the Department of Correction (DOC) and the Commonwealth of Massachusetts Executive Office of Health and Human Services Department, Division of Human Resources (collectively, defendants), from a judgment of the Superior Court finding that the plaintiff, Mark Marchand, was entitled to continue to receive assault pay benefits pursuant to G. L. c. 30,§ 58, for as long as, and the full period of time, that Marchand received worker's compensation benefits. We see no meaningful distinction between the present case and our decision in Moog v. Commonwealth, 42 Mass. App. Ct. 925, 926 (1997) (Moog), and our more recent decision in Flaherty v. Sheriff of Suffolk County, 87 Mass. App. Ct. 157, 158-161 (2015), (Flaherty). Accordingly, we follow that precedent.
1. Background. On January 21, 2008 (date of injury), Marchand was employed by the DOC as a correctional officer when he was injured on the job while attempting to prevent another officer from an inmate's assault. As a result, Marchand received worker's compensation benefits under G. L. c. 152, § 34 (temporary total disability benefits), from the date of injury until July 10, 2008, and partial disability worker's compensation benefits under G. L. c. 152, § 35, from July 11, 2008, to July 4, 2013.
Thereafter, on October 18, 2010, the DOC held a hearing pursuant to G. L. c. 31, § 41, to determine whether Marchand was medically fit for duty. A little over a month later, on November 19, 2010 (date of termination), the DOC found substantial evidence that Marchand was medically unfit for duty, and separated him from employment immediately. From the date of injury until the date of termination, the DOC paid Marchand assault pay benefits pursuant to G. L. c. 30, § 58 (the differential between the amount of worker's compensation benefits he was receiving and his full salary).
Section 58 provides, in pertinent part: "[A]n employee who, while in the performance of duty, receives bodily injuries resulting from acts of violence of . . . prisoners in his custody, and who as a result of such injury would be entitled to benefits under said chapter one hundred and fifty-two, shall be paid the difference between the weekly case benefits to which he would be 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." See Benson v. Commonwealth, 85 Mass. App. Ct. 909, 910 (2014).
On June 30, 2011, the State Board of Retirement approved Marchand's application for accidental disability retirement and on July 21, 2011, the Public Employees Retirement Administration Commission (PERAC) gave final approval to his application for accidental disability retirement. As noted above, Marchand continued to receive worker's compensation benefits until July 4, 2013.
Marchand brought this action seeking a declaration that he is entitled to receive assault pay benefits for as long as he received worker's compensation benefits. DOC denied his claim, arguing that entitlement to assault pay benefits is contingent on continued employment with the Commonwealth, and thus Marchand's right to assault pay benefits ended when his employment was terminated.
On cross-motions for summary judgment, a Superior Court judge, relying on Moog, supra (assault pay benefits continued past the date of employee's resignation for as long as he is entitled to worker's compensation benefits), allowed Marchand's motion and denied the defendants' motion, concluding that it was the intent of the Legislature to continue assault pay for as long as the employee receives worker's compensation benefits.
2. Discussion. On appeal, the Attorney General, relying on sections of the statute which -- in our view -- are inapplicable, argues on behalf of the defendants that assault pay benefits are intended to be a substitute for using accumulated sick leave and are contingent upon continued employment, and that payment of assault pay after employment had ended occasionally would result in some recipients receiving a windfall (i.e., more than their full weekly wage). As noted at the outset, this case is controlled by both Moog and Flaherty. Indeed, the argument requiring continuing employment advanced by the defendants was rejected in Moog. See Flaherty, 87 Mass. App. Ct. at 158-161. It is so that the employees in those two cases retired/resigned, whereas in the present case Marchand's employment was terminated upon a finding that he was medically unfit for duty, but the key inquiry under our case law is whether the employee is still receiving worker's compensation benefits. We see no appreciable difference in the reasons why the employment ended.
Compare the facts in the present case with Flaherty: Flaherty was a Suffolk County correction officer injured as a result of prisoner violence. He was awarded G. L. c. 252, § 35, worker's compensation benefits beginning January 4, 2006, until September 1, 2010, when he received a lump sum settlement. Thereafter, he brought suit claiming that the Commonwealth was required by G. L. c. 126, § 18A, to compensate him with assault pay during the period he received worker's compensation benefits. The Commonwealth did not dispute his entitlement to assault pay, but argued that his superannuation retirement on September 30, 2006, terminated this entitlement, and that a correction officer is no longer an "employee" for the purposes of the statute once he reaches the mandatory retirement age so as to continue to be entitled to assault pay. Flaherty, 87 Mass. App. Ct. at 158161.
To this end, the defendants misconstrue the point made in Commonwealth v. Benson that, "[w]hile the statute aims to compensate injured employees, it does not intend for them to be double-paid." 85 Mass. App. Ct. 909, 911 (2014). The discussion in Benson was whether the employee's night and weekend differentials, inter alia, should be integrated into his "regular salary" under G. L. c. 30, § 58, for purposes of calculating his assault pay. The court observed that shift differentials were given full effect in calculating an employee's average weekly wage for purposes of determining workers' compensation benefits, and thus were accounted for; there was no need to account for the same in determining assault pay as the differential between such benefits and the employee's regular salary, because this impermissibly would count such differentials twice.
Secondly, the argument that the employee potentially could receive a windfall has been expressly rejected. See DaLuz v. Department of Correction, 434 Mass. 40, 49 (2001). See also Dunne v. Boston, 41 Mass. App. Ct. 922, 923 (1996) (in case of partial disability, assault pay under St. 1970, c. 800, not subject to reduction by employee's earning capacity).
Judgment affirmed.
By the Court (Berry, Kafker & Cohen, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: June 8, 2015.