Massachusetts Court Finds Assault Pay Ends with Separation from Employment, While Workers’ Compensation May Continue

The Massachusetts Supreme Judicial Court recently issued a published opinion on the issue of whether a former correctional officer was entitled to receive both assault pay and workers’ compensation following a work-related injury.  The court reversed a judgment by the superior court and held that an employee of the Commonwealth had a right to assault pay, but that right ceases with separation from employment.

In Mark Marchand v. Department of Correction, the plaintiff, Mark Marchand, injured his knee when trying to protect another Department of Correction employee from an inmate assault.  After his injury, Mr. Marchand began receiving workers’ compensation benefits and assault pay.

Mr. Marchand was then deemed medically unfit for duty, and he was separated from employment as of November 19, 2010.  He received workers’ compensation benefits until July 4, 2013.  First, Mr. Marchand received benefits according to section 34 temporary total disability, and then he received partial disability under section 35 of the Massachusetts Workers’ Compensation Act.

The Department stopped paying Mr. Marchand’s assault pay as of the date he was separated from his employment.  Mr. Marchand then brought an action against the Department to seek a declaration that he was entitled to continue receiving assault pay, as long as he was receiving workers’ compensation benefits.  A Superior Court judge agreed and issued a judgment declaring Mr. Marchand was entitled to assault pay, retroactive to the date the Department ceased paying.  The Appellate Court affirmed the judgment.

At issue before the Supreme Court was whether an employee of the Commonwealth of Massachusetts is entitled to continue receiving assault pay with his workers’ compensation benefits, or if assault pay ceases when the employee separates from his employment position.

The Court stated that Massachusetts law provides Commonwealth employees who suffer injuries in the course of employment with workers’ compensation benefits as a means to receive pay while absent from work due to their work-related injuries. The law also states that injured employees may use their accrued sick leave to reach full pay.  However, the law states that when employees are injured due to a violent patient or prisoner in custody, otherwise known as an an “assault,” the employee will also receive full pay without absences being charged against sick leave credits.  In other words, assault pay substitutes for accrued sick leave.

Here, the court stated the appellate court noted that assault pay and workers’ compensation are related benefits available to injured employees.  However, the “special provision” available to certain Massachusetts employees is in fact an exception to the general rules set forth in G.L. c. 152.  Assault pay is an added benefit to those who have been assaulted in the course of their employment, and it provides that they do not need to use their sick leave to maintain full pay.

The court connected assault pay to sick leave, stating that sick leave is a benefit to employees, rather than those who are no longer employed.  According to the court, there is nothing in the statute that states employees who continue to receive workers’ compensation pay should continue to receive assault pay.

The court based their conclusion that assault pay ends with separation from employment on their interpretation of G. L. c. 152, § 58.  Here, the Department properly terminated Mr. Marchand’s assault pay as of the date of his separation from employment.  The court reversed the summary judgment, remanding for the entry of summary judgment in favor of the defendants.

If you have been injured on the job, you may be entitled to workers’ compensation benefits for your injuries and lost wages. The Massachusetts attorneys at Pulgini & Norton offer comprehensive guidance and individualized representation to clients seeking workers’ compensation benefits.   To discuss your claim with one of our experienced attorneys, contact our office at (781) 843-2200 or online and schedule a consultation.

More Blog Posts:

Massachusetts Appeals Court Holding Bars Injured Temp Worker from Suing Employer, Massachusetts Workers’ Compensation Lawyer Blog, September 2, 2015

Massachusetts Appeals Court Rules Against Injured Worker, Discontinues Temporary Total Incapacity Benefits, Massachusetts Workers’ Compensation Lawyer Blog, July 29, 2015

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