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SJC-12204

                  BRIAN BENOIT vs. CITY OF BOSTON
                     (and a consolidated case1).



            Suffolk.    January 9, 2017. - May 16, 2017.

 Present:    Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.


Workers' Compensation Act, Compensation, Public employee,
     Decision of Industrial Accident Reviewing Board, Insurer.
     Public Employment, Suspension, Worker's compensation.
     Municipal Corporations, Officers and employees.



     Civil action commenced in the Superior Court Department on
November 24, 2014.

    A motion to dismiss was heard by Linda E. Giles, J.

     Civil action commenced in the Superior Court Department on
November 3, 2015.

    A motion to dismiss was heard by Paul D. Wilson, J.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     John M. Becker for the plaintiff.
     E. David Susich (Thomas A. Pagliarulo also present) for the
defendant.


    1
        The consolidated case involves the same parties.
                                                                     2


    LENK, J.   On September 5, 2011, after working almost twenty

years as an emergency medical technician and paramedic for the

defendant city's emergency medical services (EMS), the plaintiff

suffered an incapacitating ankle injury while transporting a

patient.   Unable to work, he received workers' compensation

payments for almost one year pursuant to G. L. c. 152, the

workers' compensation act.

    Learning that the plaintiff had been indicted on

October 31, 2012, on charges relating to misuse of controlled

substances intended for EMS patients, the defendant suspended

him indefinitely without pay pursuant to G. L. c. 268A, § 25

(suspension statute).     After the defendant, a self-insured

municipal employer, discontinued the plaintiff's workers'

compensation payments, he took the matter to the Department of

Industrial Accidents (DIA); the defendant was ordered to restore

those payments.

    When the defendant did not comply with the DIA order, the

plaintiff sought enforcement in the Superior Court pursuant to

G. L. c. 152, § 12 (1).    The defendant argued then, as now, that

the provision of the suspension statute requiring that suspended

public employees "shall not receive any compensation or salary

during the period of suspension" prevails over the requirements

of the worker's compensation act, and that the DIA order

requiring proscribed payments should accordingly not be
                                                                     3


enforced.   A Superior Court judge agreed and dismissed the

enforcement actions.2     We conclude that workers' compensation

benefits are not "compensation" as defined in the suspension

statute, because they are not payments made "in return for

services rendered."      G. L. c. 268A, § 1 (a).   The Superior Court

actions brought by the plaintiff to enforce the orders of the

DIA accordingly were dismissed in error.3

     1.   Background.4    The plaintiff began working for the city

of Boston as an emergency medical technician in 1996, and was

promoted to paramedic in 2004.      On September 5, 2011, he

suffered a significant ankle injury while helping bring a

patient to his ambulance.      As a result of the plaintiff's




     2
       The plaintiff brought two enforcement actions; one during
his suspension and one after his resignation from the
defendant's employment. He argued in the latter action that
G. L. c. 268A, § 25 (suspension statute), no longer precluded
him from receiving workers' compensation payments because he was
no longer suspended.
     3
       Given our conclusion, we do not reach the plaintiff's
contentions that attorney's fees, expenses, and court fees do
not constitute compensation under G. L. c. 268A, § 25, nor his
argument that he is entitled to workers' compensation for the
periods before and after his suspension.
     4
       We accept as true the facts alleged in the plaintiff's
complaint. See Burbank Apartments Tenant Ass'n v. Kargman, 474
Mass. 107, 116 (2016).
                                                                   4


incapacitation, the defendant paid workers' compensation

benefits to him from September 5, 2011, until August 4, 2012.5

     In August, 2012, the defendant notified the plaintiff that

his workers' compensation payments would be terminated.6    The

plaintiff filed a claim contesting the termination of the

payments with the DIA on October 23, 2012.    Just over a week

later, the plaintiff was indicted on seventy-three counts of

criminal misconduct involving controlled substances in his

ambulance.    The defendant suspended the plaintiff's employment

shortly thereafter pursuant to the suspension statute.7

     The DIA conducted a hearing regarding the plaintiff's

workers' compensation claim on September 30, 2013.    On October

     5
       The defendant is obliged to make workers' compensation
payments to its employees who suffer job-related injuries
because it is a "self-insurer" under the workers' compensation
act. See G. L. c. 152, § 25A.
     6
       The defendant apparently contested the plaintiff's claim
that the injury was accidental. Upon the defendant's suspension
in connection with criminal charges, the defendant asserted that
the payments were also proscribed by virtue of the suspension
statute.
     7
         General Laws c. 268A, § 25, provides in relevant part:

          "An officer or employee of a county, city, town or
     district, howsoever formed, including, but not limited to,
     regional school districts and regional planning districts,
     or of any department, board, commission or agency thereof
     may, during any period such officer or employee is under
     indictment for misconduct in such office or employment or
     for misconduct in any elective or appointive public office,
     trust or employment at any time held by him, be suspended
     by the appointing authority, whether or not such
     appointment was subject to approval in any manner."
                                                                     5


6, 2014, the DIA ruled in favor of the plaintiff and ordered the

defendant to resume making workers' compensation payments.    The

defendant appealed from the DIA's decision and did not comply

with the order.8    On November 24, 2014, the plaintiff brought an

action in the Superior Court to enforce the DIA's order against

the defendant pursuant to G. L. c. 152, § 12 (1).9    A Superior

Court judge granted the defendant's subsequent motion to dismiss

on the ground that the suspension statute prohibited the

plaintiff from receiving workers' compensation payments while he

was suspended because it constituted "compensation" under the

statute.    See G. L. c. 268A, § 25 ("Any person [suspended

pursuant to the statute] shall not receive any compensation or

salary during the period of suspension . . .").    The plaintiff

appealed from the decision.

     On August 5, 2015, the plaintiff pleaded guilty to one

felony count and seventeen misdemeanor counts and resigned from


     8
         The review board of the DIA eventually affirmed the order.
     9
       The enforcement provision of the workers' compensation
act, G. L. c. 152, § 12 (1), provides, in relevant part:

          "Whenever any party in interest presents a certified
     copy of an order or decision of a board member or of the
     reviewing board and any papers in connection therewith to
     the superior court department of the trial court for the
     county in which the injury occurred or for the county of
     Suffolk, the court shall enforce the order or decision,
     notwithstanding whether the matters at issue have been
     appealed and a decision on the merits of the appeal is
     pending."
                                                                     6


his employment with the defendant.    He then brought another

enforcement action in the Superior Court on the basis that the

suspension statute no longer barred his compensation payments

because he was no longer suspended.    A different Superior Court

judge granted the defendant's subsequent motion to dismiss,

concluding that the suspension statute still barred the

plaintiff from receiving workers' compensation because his

suspension had not been lifted prior to his resignation.       The

plaintiff appealed from the ruling; his request that both cases

be consolidated pursuant to Mass. R. A. P. 3 (b), 365 Mass. 845

(1974), was allowed in the Appeals Court.    We transferred the

case from the Appeals Court on our own motion.

    2.   Discussion.    Given that all of the plaintiff's

objections to the two Superior Court judges' rulings concern

questions of law, our review is de novo.    See Commonwealth v.

Diggs, 475 Mass. 79, 81 (2016).    The plaintiff advances three

claims in his appeal.   His main contention is that the judges

erred in their determinations that workers' compensation

payments are proscribed by the suspension statute, and in

dismissing his enforcement actions on that basis.    He also

contends both that G. L. c. 152, § 12 (1) ("the court shall

enforce the order"), by its terms, requires the Superior Court

to enforce his DIA order, and that the defendant waived its

argument under the suspension statute by failing to raise it
                                                                     7


before the DIA.     We first address only briefly the latter two

issues and then turn to the matter of chief concern, viz., the

apparent conflict between the workers' compensation act and the

suspension statute.

    a.   Required enforcement of the DIA order pursuant to G. L.

c. 152, § 12 (1).     The plaintiff maintains that the Superior

Court judges were obliged to enforce the DIA's order pursuant to

the unambiguous terms of G. L. c. 152, § 12 (1), and were

required to do so irrespective of any potential conflict with

the suspension statute.     This contention misses the mark.   The

Superior Court, when asked to do so, must determine whether the

statutory enforcement mechanism it is to employ conflicts with

another potentially superseding statute.     See Keenan,

petitioner, 310 Mass. 166, 179 (1941) (Superior Court "is a

court of original and general jurisdiction and possesses the

inherent powers of such a court under the common law, unless

expressly limited, as well as those conferred by statute"

[citation omitted]).     Language in the enforcement statute

stating that a "court shall enforce" an order is not to the

contrary -- it means only that, when asked to enforce the order,

a Superior Court judge cannot second guess the merits of the

DIA's decision.     That is not the situation here.

    b.   Waiver.    The plaintiff also contends, similarly without

merit, that the defendant waived its argument concerning the
                                                                   8


suspension statute by failing to raise it at the administrative

level.   The DIA's jurisdiction, however, is limited to the

interpretation and application of the workers' compensation act,

and the defendant thus could not have raised the issue of G. L.

c. 268A, § 25, before the DIA.   See Hayes's Case, 348 Mass. 447,

452-453 (1965), quoting Levangie's Case, 228 Mass. 213, 216-217

(1917) ("The [Industrial Accident Board, a predecessor to the

DIA,] 'is not a court of general or limited common[-]law

jurisdiction; . . . it is purely and solely an administrative

tribunal, specifically created to administer the [workers']

compensation act in aid and with the assistance of the Superior

Court . . . , and as such possesses only such authority and

powers as have been conferred upon it by express grant or arise

therefrom by implication as necessary and incidental to the full

exercise of the granted powers'").   Accordingly, the defendant

appropriately raised the issue in the Superior Court.

    c.   Whether the suspension statute prohibits suspended

employees from receiving workers' compensation.   The plaintiff

contends that workers' compensation does not constitute

"compensation" within the meaning of the suspension statute.

That statute states, in relevant part, that any employee

suspended pursuant to it "shall not receive any compensation or

salary during the period of suspension."   G. L. c. 268A, § 25.

The term "compensation" is in turn defined as "any money, thing
                                                                       9


of value or economic benefit conferred on or received by any

person in return for services rendered or to be rendered by

himself or another."    G. L. c. 268A, § 1 (a).    We first set

forth an overview of the relevant statutes.

    i     Statutory overview.   1.   The suspension statute.    The

suspension statute, "which applies to county, municipal, and

district officers, is identical in its operative language to

G. L. c. 30, § 59,     . . . which applies to officers and

employees of the Commonwealth."      Springfield v. Director of Div.

of Employment Sec., 398 Mass. 786, 788 (1986), quoting

Massachusetts Bay Transp. Auth. v. Massachusetts Bay Transp.

Auth. Retirement Bd., 397 Mass. 734, 739 n.8 (1986).      The

suspension statute was enacted in 1972, see St. 1972, c. 257, to

"remedy the untenable situation which arises when a person who

has been indicted for misconduct in office continues to perform

his public duties while awaiting trial . . . by allowing for the

temporary removal of such employees from office, and by

precluding the payment of compensation . . . during the period

of their suspension."     Springfield, supra at 788-789, quoting

Massachusetts Bay Transp. Auth., supra at 739.      Because the

statute does not include any exception, it "is dominant in its

purpose and its terms" [quotation omitted].      Springfield, supra

at 789.
                                                                    10


      We have interpreted the term "compensation," as it appears

in the suspension statute, as encompassing "a broader meaning

than the word 'salary.'"     Springfield, 398 Mass. at 790.   The

term is to be "read in light of" the purpose of the suspension

statute, i.e. to effect "a complete severance of the

relationship between public employer and employee."    See id.,

quoting Brown v. Taunton, 16 Mass. App. Ct. 614, 620 (1983).

      2.   The worker's compensation act.   The workers'

compensation act, originally enacted in 1911, guarantees workers

certain benefits as the exclusive remedy for injuries they

suffer in the course of employment, regardless of the employer's

fault.     See Estate of Moulton v. Puopolo, 467 Mass. 478, 483

(2014), citing St. 1911, c. 751, pt. 1, § 5, and pt. 5, § 1.

The act "was intended to guarantee that workers would receive

payment for any workplace injuries they suffered, regardless of

fault; in exchange for accepting the statutory remedies, the

worker waives any common-law right to compensation for

injuries."    Estate of Moulton, supra.   The workers' compensation

scheme "provides predictability for both employee and employer,

balancing protection for workers with certainty for employers."

Id.

      The worker's compensation act operates by requiring each

employer in the Commonwealth to obtain workers' compensation

coverage from an insurer that will make workers' compensation
                                                                   11


payments to injured employees or, alternatively, to obtain a

license "as a self-insurer" -- i.e., an employer that makes

workers' compensation payments to its employees.     See G. L.

c. 152, § 25A.   Failure to do so may result in, among other

things, the imposition of civil penalties upon employers, who

also may forfeit immunity from suits by employees.     See G. L.

c. 152, § 25C (11).   An employee may opt out of the workers'

compensation scheme and retain the right to sue the employer in

tort by making such an intention clear in writing upon hire.

See G. L. c. 152, § 24; Wentworth v. Henry C. Becker Custom

Bldg. Ltd., 459 Mass. 768, 773 n.6 (2011).

     Under the worker's compensation act, an employee who

suffers an injury arising out of employment is entitled to an

array of benefits depending on the nature of the injury.     In

general, an employee who suffers such an injury will recover

medical expenses arising out of the injury, G. L. c. 152, § 30,

and receive, for some period of time,10 weekly payments based


     10
       The period of time during which the injured employee will
receive payments is dependent upon the extent and duration of
the employee's incapacity for work. See G. L. c. 152, § 35
(compensation for partial incapacity extends to 260 weeks or to
520 "if an insurer agrees or an administrative judge finds that
the employee has, as a result of a personal injury under [the
act], suffered a permanent loss of seventy-five percent or more
of any bodily function or sense specified in" G. L. c. 152,
§ 36); G. L. c. 152, § 34 (compensation for total incapacity
extends to 156 weeks); G. L. c. 152, § 34A (compensation for
total and permanent incapacity extends for entirety of
employee's life).
                                                                     12


upon the employee's salary prior to her injury.     In the event of

certain specific and debilitating injuries, employees are also

to receive an additional lump sum payment.     See G. L. c. 152,

§ 36.    Should an employee succumb to a work related injury,

certain survivors will receive weekly payments in the employee's

stead.    See G. L. c. 152, § 31.

    ii.     Analysis.   The question before us is whether the

meaning of the statutory term "compensation" in the suspension

statute encompasses such workers' compensation benefits.        It is

axiomatic that "a statute must be interpreted according to the

intent of the Legislature ascertained from all its words

construed by the ordinary and approved usage of the language,

considered in connection with the cause of its enactment, the

mischief or imperfection to be remedied and the main object to

be accomplished, to the end that the purpose of its framers may

be effectuated."    Yeretsky v. Attleboro, 424 Mass. 315, 319

(1997), quoting Board of Educ. v. Assessor of Worcester,

368 Mass. 511, 513 (1975).    "In interpreting the meaning of a

statute, we look first to the plain statutory language."

DiCarlo v. Suffolk Constr. Co., 473 Mass. 624, 629 (2016),

quoting Worcester v. College Hill Props., LLC, 465 Mass. 134,

138 (2013).    Applying these principles to the present case, we

conclude that workers' compensation benefits do not fall within

the ambit of the suspension statute.
                                                                    13


    While the statutory term "compensation" is defined broadly,

see Springfield, 398 Mass. at 790, its scope is not unbounded.

The Legislature defined "compensation" as "any money, thing of

value or economic benefit conferred on or received by any person

in return for services rendered" (emphasis added).   G. L.

c. 268A, § 1 (a).   The phrase "in return for services rendered,"

given its plain meaning, denotes a reciprocal relationship

between the benefits received and the services provided.     See,

e.g., Killoran v. Commissioner of Internal Revenue, 709 F.2d 31,

31-32 (9th Cir. 1983) (taxicab driver's tips were paid "in

return for services rendered" and were therefore income for

Federal income tax purposes).   In order for a benefit to qualify

as compensation that a suspended public employee may not

receive, it must be provided as recompense for the employee's

services, i.e., in return for services rendered.

    How strictly that requisite reciprocity is to be understood

is central to the question before us:   whether workers'

compensation benefits are received in return for services the

injured employee rendered.   If reciprocity means only payments

akin to wages, the broad meaning of "compensation" intended by

the Legislature would be vitiated.   On the other hand, if

reciprocity could mean, as the defendant seems to suggest, any

benefit stemming from a "but for" nexus formed by the employee

relationship itself -- i.e., any benefit arising from even a
                                                                  14


tangential connection to employee services -- the phrase "in

return for services rendered" effectively would be written out

of the statutory definition.   See Chatham Corp. v. State Tax

Comm'n, 362 Mass. 216, 219 (1972) ("every word of a legislative

enactment is to be given force and effect").

    In determining that certain benefits constitute

compensation under the suspension statute, our cases suggest a

middle course, one which takes the phrase to mean a reciprocity

where the benefits in question are interwoven with, and received

primarily as a result of, services rendered.   Benefits in this

category include sick pay, Brown, 16 Mass. App. Ct. at 620

(entitlement received as part of compensation package and

provided in lump sum upon termination if not used); return on an

investment received in exchange for technical advice given,

Commonwealth v. Canon, 373 Mass. 494, 497 (1977), cert. denied,

435 U.S. 933 (1978) (investment opportunity in exchange for

engineering advice by city engineer constituted compensation);

and unemployment benefits, Springfield, 398 Mass. at 790-791

(employer obliged to pay such benefits as result of employee

having rendered wage earning services to employer).   In each

instance, the reason the employee received the benefit was

primarily as the result of services he rendered as an employee.

    The receipt of workers' compensation benefits differs from

these because, while such benefits are triggered by injuries
                                                                   15


that arise in the course of employment, see Derinza's Case, 229

Mass. 435, 441-442 (1918), they are not in exchange for services

rendered during that employment.    The reciprocal exchange that

occurs in the workers' compensation context is not between

services and benefits, but between the waived right to sue the

employer in tort for injuries and the guarantee of benefits when

injured.   See Potomac Elec. Power Co. v. Director, Office of

Workers' Compensation Programs, United States Dep't. of Labor,

449 U.S. 268, 282 n.24 (1980) ("Employees . . . give up the

right of suit for damages for personal injuries against

employers in return for the certainty of compensation payments

as recompense for those injuries" [citation omitted]); Estate of

Moulton, 467 Mass. at 483 ("in exchange for accepting the

statutory remedies [of the workers' compensation act], the

worker waives any common-law right to compensation for tort

injuries").   The various payments, medical and otherwise,

provide comprehensive recompense for "lost wages and lost

earnings capacity and medical expenses resulting from work-

related injuries."   Neff v. Commissioner of the Dep't. of Indus.

Accs., 421 Mass. 70, 75 (1995).    Such payments are in the nature

of insurance benefits received pursuant to a policy taken out by

the employer for the employee's benefit, see Derinza's Case, 229

Mass. at 441; the policy is, in effect, purchased in

consideration for the employee's waiver of his or her right to
                                                                  16


sue the employer.     Moreover, the workers' compensation act does

not implicate the employer-employee relationship -- it concerns

the relationship between an employee and her insurer.    See

Insurance Co. of the State of Penn. v. Great Northern Ins. Co.,

473 Mass. 745, 750 (2016) ("although the employer purchases the

workers' compensation policy, a workers' compensation insurer is

directly liable to an injured employee for the workers'

compensation benefits provided by law; the insurer does not

reimburse the employer for its payment of these benefits").11

     Our decision in Springfield, 398 Mass. at 790-791, is not

to the contrary, notwithstanding certain superficial

similarities between unemployment and workers' compensation

benefits.    Enacted in 1935, the unemployment compensation

statute, G. L. c. 151A, § 24,12 serves as a temporary economic

stabilization mechanism for terminated employees who meet the

statutory criteria.     See id. (describing statutory criteria for

benefits).   The over-all "purpose of the law is to provide

temporary relief for those who are realistically compelled to

     11
       The defendant's obligation to make workers' compensation
payments to its employees stems from its role as a self-insurer
under the worker's compensation act rather than its position as
an employer.
     12
       At that time, Federal law required for the first time
that each State enact and administer a worker's compensation
program. See Witte, Development of Unemployment Compensation,
55 Yale L.J. 21, 32-35 (1945) (describing development and
implementation of "[F]ederal-[S]tate system of unemployment
compensation").
                                                                   17


leave work through no 'fault' of their own, whatever the source

of the compulsion, personal or employer-initiated."    See

Raytheon Co. v. Director of the Div. of Employment Sec., 364

Mass. 593, 596 (1974); G. L. c. 151A, §§ 29, 30.    Employers fund

this mechanism, G. L. c. 151A, § 14, which is administered by

the department of unemployment assistance, and employees do not

contribute to it in any manner.    The employee gives up neither

rights nor money to receive such benefits, which are, in effect,

a statutorily mandated temporary extension of his or her

compensation package beyond the employee's termination.      The

receipt of such benefits is primarily as the result of services

rendered during employment.

    Because workers' compensation benefits do not constitute

compensation for purposes of the suspension statute, that

statute accordingly does not proscribe the receipt of such

benefits by suspended employees.

    3.   Conclusion.   The judgment is reversed and the matter is

remanded to the Superior Court for further proceedings

consistent with this opinion.

                                     So ordered.
