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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

     1
       Executive Office of Health and Human Services, Division of
Human Resources.
     2
       Marchand initially received benefits pursuant to G. L.
c. 152, § 34 (temporary total disability), from January 21,
2008, until July 10, 2008, and then, from July 11, 2008, until
July 4, 2013, received benefits pursuant to G.L. c. 152, § 35
(partial disability).
                                                                    2


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.

     When a Commonwealth employee injured in the course of
employment is entitled, pursuant to G. L. c. 152, to workers'
compensation benefits, G. L. c. 30, § 58, provides a means for
the employee to continue to receive full pay while absent from
work as a result of the injury. Generally, as set forth in
first three paragraphs of § 58, the injured employee may use
accrued sick leave to receive full pay.3 Pursuant to the fourth

    3
        The first three paragraphs of G. L. c. 30, § 58, provide:

         "Any employee of the commonwealth eligible to receive
    workers' compensation under [G. L. c. 152] who sustains
    injuries while in the employ of the commonwealth and who
    has sufficient sick leave credits accrued shall be granted
    leave of absence with pay for each working day he is absent
    from his duties because of such injuries until he returns
    to work or until the case has been approved by the
    industrial accident board.

         "Workers' compensation for such period shall be
    refunded to the state treasurer or spending agency of the
    commonwealth. The payment by the industrial accident board
    for such period shall constitute the total refund and the
                                                                   3


paragraph of § 58, however, when the employee is injured as a
result of an act of violence by a patient or prisoner in his
custody, i.e., as a result of an "assault," the employee will
receive full pay "without such absence being charged against
available sick leave credits."4 Assault pay is, in other words,
intended to be a substitute for the use of accrued sick leave.

     There is no question, as the Appeals Court rightly noted in
the Moog case, that assault pay and workers' compensation are
related benefits. See Moog, 42 Mass. App. Ct. at 926. There
also is no question that the assault pay provision in paragraph
four of § 58 represents a "special provision for certain injured
State employees" entitled to workers' compensation benefits
under G. L. c. 152. See Moog, supra. As the department
suggests,5 however, that "special provision" is just that --
special -- and is an exception to the general rules set forth in
the section's first three paragraphs. The statute essentially
provides an added benefit to an employee assaulted in the course
of his or her employment, and recognizes that, in such
circumstances, the employee should not have to use sick leave to


     employee shall be credited with the proportionate part of
     sick leave credits represented by the workers' compensation
     paid by the industrial accident board.

          "If the industrial accident board refuses to accept
     jurisdiction over the case the employee shall not be
     granted leave with pay in excess of his accumulated sick
     leave credits or vacation leave."
     4
       General Laws c. 30, § 58, fourth par., is the assault pay
provision and provides:

          "Notwithstanding the provisions of this section, an
     employee 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 a result of such
     injury would be entitled to benefits under said [G. L.
     c. 152], shall be paid the difference between the weekly
     cash benefits to which he would be entitled under said
     [G. L. c. 152] 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."
     5
       For ease of reference, we refer to the defendants
collectively as "the department."
                                                                   4


maintain full pay. Sick leave, however, is a benefit provided
only to employees, and it reasonably follows that when an
employee separates from employment, the assault pay benefit,
connected, as it is, to sick leave, ceases. Nothing in the
statute requires or suggests otherwise. That the now-former
employee who had been receiving assault pay continues to receive
workers' compensation benefits after separation from employment
is of no moment -- those benefits continue for all former
employees who are otherwise entitled to them, regardless of
whether the employee was entitled to assault pay.6

     The department properly stopped paying Marchand assault pay
benefits pursuant to G. L. c. 30, § 58, as of the date of his
separation from employment. Accordingly, summary judgment for

    6
       Our conclusion that assault pay ceases with separation
from employment is based on our interpretation of G. L. c. 152,
§ 58. The department also argues that continued payment of
these benefits postemployment is problematic because it could,
in some circumstances, result in the employee receiving more
than one hundred per cent of his or her salary. This argument
was not a factor in our decision. We have previously concluded,
while considering the assault pay provision of § 58 in a
different context, that

    "[i]t would not be unreasonable for the Legislature to
    provide such a comprehensive benefit for employees who are
    exposed to an occupational risk of violent injury. 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 v. Department of Correction, 434 Mass. 40, 49 (2001). In
the DaLuz case, we concluded that a partially disabled
employee's assault pay is not "reduced by the amount of the
injured employee's earning capacity." Id. In so doing, we
recognized that this could create an anomaly because a partially
disabled employee might recover more than a totally disabled
employee, or might earn more than his regular salary if he or
she obtained other employment. Id. Although our decision here
does not create any such anomaly, the point remains that, in
drafting the assault pay provision, the Legislature saw fit to
provide a "comprehensive" benefit to a certain class of
employees -- those who sustain injuries as a result of acts of
violence of patients or prisoners in their care -- and that
certain anomalies may yet result.
                                                                  5


the plaintiff is reversed, and the matter is remanded for entry
of summary judgment in favor of the defendants.

                                   So ordered.


     Kirk G. Hanson, Assistant Attorney General, for the
defendants.
     Gregory F. Galvin for the plaintiff.
