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14-P-778 Appeals Court
GEORGE H. FLAHERTY vs. SHERIFF OF SUFFOLK COUNTY & another.1
No. 14-P-778.
Suffolk. December 9, 2014. - March 16, 2015.
Present: Cohen, Fecteau, & Massing, JJ.
Sheriff. Correction Officer. Public Employment, Assault pay
benefits, Worker's compensation, Retirement. Workers'
Compensation Act, Public employee. Limitations, Statute
of. Commonwealth, Claim against.
Civil action commenced in the Superior Court Department on
November 15, 2010.
The case was heard by Linda E. Giles, J., on motions for
summary judgment.
Christopher G. Perillo for the defendants.
Arinda R. Brooks for the plaintiff.
MASSING, J. The defendants, the sheriff of Suffolk County
and the Suffolk County sheriff's department (collectively
1
Suffolk County sheriff's department.
2
referred to as the Commonwealth2), appeal from a judgment of the
Superior Court finding the Commonwealth liable for assault pay
owed to the plaintiff, George H. Flaherty, under G. L. c. 126,
§ 18A (sometimes referred to as the statute). The Commonwealth
contends (1) that Flaherty's entitlement to assault pay
terminated when he reached the mandatory age of retirement for
correction officers and became entitled to superannuation
retirement benefits and (2) that his action is barred by the
statute of limitations. The Superior Court judge rejected both
contentions. We agree with the judge's conclusion that Flaherty
was entitled to assault pay as long as he was receiving workers'
compensation benefits, and that his action is not time barred,
but we agree with the Commonwealth that the applicable statute
of limitations is G. L. c. 260, § 3A, precluding Flaherty from
recovering payments that became due more than three years before
he filed his complaint.
Background. While working as a Suffolk County correction
officer in January, 2006, Flaherty was injured as a result of
prisoner violence. An administrative judge of the Department of
Industrial Accidents found that he was partially disabled and
awarded him workers' compensation benefits beginning January 4,
2
The office of the sheriff of Suffolk County was
transferred to the Commonwealth, and all of the sheriff's debts
and liabilities became obligations of the Commonwealth, as of
January 1, 2010. See St. 2009, c. 61, §§ 3, 6, 26.
3
2006. He continued to receive workers' compensation benefits
until September 1, 2010, the effective date of a lump sum
settlement agreement that ended his entitlement to those
benefits. On November 15, 2010, Flaherty filed an action in the
Superior Court claiming that the Commonwealth was required by
G. L. c. 126, § 18A, to compensate him with assault pay during
the period he received workers' compensation benefits. The
Commonwealth did not dispute that Flaherty was entitled to
assault pay but argued that his superannuation retirement on
September 30, 2006, after he reached the age of sixty-five,
terminated this entitlement, and that the three-year statute of
limitations for actions against the Commonwealth barred him from
recovering for the period he was owed assault pay. The parties
filed cross motions for summary judgment, and the judge,
rejecting the Commonwealth's arguments, denied the
Commonwealth's motion and allowed Flaherty's.3
Entitlement to assault pay. The applicable statute
provides as follows:
"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
3
"Summary judgment is appropriate where there are no
genuine issues of material fact and the moving party is entitled
to judgment as a matter of law. . . . We review a decision to
grant summary judgment de novo." HipSaver, Inc. v. Kiel, 464
Mass. 517, 522 (2013). The material facts of this case are not
in dispute and present only questions of law. See Annese Elec.
Servs., Inc. v. Newton, 431 Mass. 763, 764 & n.2 (2000).
4
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 . . . ."
G. L. c. 126, § 18A, as amended by St. 1977, c. 1002.4 The
Commonwealth argues that a correction officer is no longer an
"employee" for the purposes of this statute once he reaches the
mandatory age of retirement, and is therefore no longer entitled
to assault pay.
The Commonwealth's reading of the statute, though
plausible, is contrary to the statute's settled interpretation.
The statute, by its terms, entitles an employee injured by a
prisoner's act of violence to be paid "the difference between
the weekly cash benefits to which he is entitled under [c. 152,
the workers' compensation act,] and his regular salary." The
entitlement to assault pay under the statute "relates to and
meshes with the provisions of c. 152." Moog v. Commonwealth, 42
Mass. App. Ct. 925, 926 (1997) (Moog). The employer's
obligation is not reduced even if the employee is only partially
disabled and has the ability to earn money in addition to the
4
Flaherty proceeded alternatively under St. 1970, c. 800,
which provides identical benefits to "any employee of the city
of Boston or the county of Suffolk." Our analysis would be the
same under either statute. See G. L. c. 30, § 58 (providing
identical assault pay benefits for employees of the
Commonwealth).
5
combined workers' compensation and assault pay benefits -- even
"if such employee does in fact obtain other employment and
thereby acquires earnings in addition to benefits." DaLuz v.
Department of Correction, 434 Mass. 40, 49 (2001) (DaLuz). See
Dunne v. Boston, 41 Mass. App. Ct. 922, 923 (1996) (Dunne) (in a
case of partial disability, assault pay under St. 1970, c. 800,
not subject to reduction by an employee's earning capacity).
Even a correction officer who is injured on the job and
subsequently resigns is still considered an "employee" and is
entitled to continue receiving assault pay from his former
employer for the duration of his eligibility for workers'
compensation benefits. Moog, 42 Mass. App. Ct. at 926-927.
Thus, the critical inquiry regarding whether Flaherty is an
employee under the statute is not whether his employment ceased
after the injury; rather, it is whether he was an employee at
the time of injury. Id. at 926 (rejecting the Commonwealth's
argument that "an employee" injured in the line of duty "became
ineligible for such pay when he resigned from his job"). Cf.
Harvey's Case, 295 Mass. 300, 301-302 (1936) ("The finding that
the dependents of the employee were entitled to compensation for
an injury arising out of and in the course of his employment
necessarily involved the finding that he had at the time of his
injury the status of an employee").
6
"We recognize that the statutory language appears to create
an anomaly." DaLuz, 434 Mass. at 49 (noting that its
interpretation of the statute both allows partially disabled
employees to collect more benefits than fully disabled employees
and "permits a partially disabled employee to earn more than his
or her regular salary" if the employee finds other employment).
Likewise, our interpretation of the statute in Moog permits
correction officers injured on the job to resign, find work
elsewhere, and continue to receive the equivalent of their full
salary as a correction officer.
For the period he was receiving workers' compensation
benefits, the assault pay statute entitled Flaherty to receive
the equivalent of his full salary as a correction officer, plus
his retirement benefits. Although the Commonwealth argues that
this interpretation grants Flaherty "a windfall," his situation
is similar to that of any retired, able-bodied State or county
correction officer, who would be entitled to take a full-time,
paid position with another employer and still receive retirement
benefits from the Commonwealth. "It appears that it is the
Legislature's objective to ensure that employees injured by the
violence of prisoners or patients do not suffer any loss as a
result of such injury." DaLuz, supra. To the extent this
anomaly creates unintended windfalls or otherwise inequitable
7
results in certain circumstances, the correction lies with the
Legislature. See Dunne, 41 Mass. App. Ct. at 923.
Statute of limitations. The Commonwealth is correct that
the applicable statute of limitations is not the six-year
statute for contract disputes, but rather is the three-year
statute of limitations for claims against the Commonwealth.
G. L. c. 260, § 3A. Although Flaherty's claim arises under an
employment contract, see Chambers v. Lemuel Shattuck Hosp., 41
Mass. App. Ct. 211, 212-213 (1996) (Chambers), "the applicable
statute of limitations for all claims against the Commonwealth
is three years" (emphasis supplied). Benson v. Commonwealth, 85
Mass. App. Ct. 909, 911 (2014) (Benson) (applying the three-year
statute of limitations to a claim for assault pay benefits
brought in 2012 by a Suffolk County correction officer injured
in 2006).5
The calculation of assault pay is based on "the difference
between the weekly cash benefits" the injured employee receives
as workers' compensation and the employee's regular salary as a
correction officer. G. L. c. 126, § 18A. "[W]e consider each
alleged violation of the continuing weekly payment obligation a
new claim for statute of limitations purposes." Chambers, 41
Mass. App. Ct. at 213. Accordingly, "the statute of limitations
5
The judge here did not have the benefit of our decision in
Benson, supra, when she decided the cross motions for summary
judgment.
8
has not run as to the benefits . . . which should have been paid
to [Flaherty] during the [three] years prior to the date of the
filing of [Flaherty's] complaint, that is, [November 15, 2010]."
Ibid.
Conclusion. Flaherty is entitled to assault pay for the
period starting on the date three years before he filed his
complaint until the termination of his workers' compensation
benefits on September 1, 2010. Accordingly, the judgment is
vacated, and a new judgment is to enter consistent with this
opinion.
So ordered.