Marchand v. Department of Correction, et al. (Lawyers Weekly No. 10-121-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11949   MARK MARCHAND  vs.  DEPARTMENT OF CORRECTION & another.[1]       August 11, 2016.     Correction Officer.  Public Employment, Assault pay benefits.     On January 21, 2008, while working for the defendant Department of Correction (department), the plaintiff, Mark Marchand, sustained a knee injury when he intervened to protect a fellow employee from an assault by an inmate.  As a result of the injury, Marchand began to receive workers’ compensation benefits, pursuant to G. L. c. 152, as well as assault pay, pursuant to G. L. c. 30, § 58.  On November 19, 2010, after a hearing, the department’s acting commissioner determined that Marchand was medically unfit for duty and separated him from employment as of that date.  Although Marchand continued to receive workers’ compensation benefits until July 4, 2013, the department stopped paying assault pay as of the date of Marchand’s separation from employment.[2]   Marchand then commenced this action against the department and the Commonwealth’s Executive Office of Health and Human Services, Division of Human Resources, seeking a declaration that he was entitled to continue receiving assault pay for so long as he was receiving workers’ compensation benefits — that is, until July 4, 2013.  A judge in the Superior Court agreed.  He allowed Marchand’s cross motion for summary judgment; denied the defendants’ motion; and ordered that judgment enter declaring that Marchand was entitled to assault pay retroactive to November 19, 2010, and continuing through July 4, 2013.  The Appeals Court affirmed the judgment, in a memorandum and order issued pursuant to its rule 1:28.  See Marchand v. Department of Correction, 87 Mass. App. Ct. 1127 (2015).  We allowed the defendants’ application for further appellate review.   The single question before us is whether a Commonwealth employee entitled to receive assault pay pursuant to G. L. c. 30, § 58, fourth par., is entitled to continue receiving such pay even after he separates from employment so long as he is entitled to workers’ compensation benefits pursuant to G. L. c. 152, or whether his right to assault pay ceases with his separation from employment.  The Appeals Court has previously interpreted the relevant provisions of G. L. c. 30, § 58, to mean the former.  See Moog v. Commonwealth, 42 Mass. App. Ct. 925, 927 (1997).  We conclude, however, that the latter is the better interpretation — in short, that assault pay is contingent on continued employment.   […]

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