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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.
