Montague v. Commissioner of Metropolitan Dist. Commission

Decision Date17 January 1980
Citation9 Mass.App.Ct. 62,399 N.E.2d 504
PartiesFrancis E. MONTAGUE v. COMMISSIONER OF the METROPOLITAN DISTRICT COMMISSION et al. 1
CourtAppeals Court of Massachusetts

Catherine A. White, Asst. Atty. Gen., for defendants.

Gabriel O. Dumont, Jr., Boston, for plaintiff.

Before HALE, C. J., and GOODMAN and GRANT, JJ.

HALE, Chief Justice.

The defendants have appealed from a summary judgment rendered in favor of the plaintiff, a former Metropolitan District police officer, in this action for declaratory judgment. G.L. c. 231A.

On February 19, 1977, the plaintiff was injured in the performance of his duty as a police officer. On the following day he applied to the Metropolitan District Police Line of Duty Board (L.O.D. Board) to be placed on line-of-duty status under G.L. c. 92, § 63B. 2 This status would give the plaintiff leave with pay for the duration of his temporary incapacity; that leave would not be charged against his accumulated sick leave. The L.O.D. Board granted him line-of-duty status on March 1, 1977, and from time to time voted to extend it. On December 13, 1977, the L.O.D. Board informed the plaintiff that it had found his disability to be permanent and advised him to apply to the State Board of Retirement (S.B.R.) for accidental disability retirement under G.L. c. 32, § 7. At the same time the L.O.D. Board extended the plaintiff's line-of-duty status to March 13, 1978, so that his regular pay would continue through at least part of the time that the S.B.R. would take to process his application. The plaintiff's accumulated sick leave maintained his usual salary until April 8, 1978.

The plaintiff initiated this action on April 12, 1978, seeking a declaration that the L.O.D. Board was required to continue line-of-duty payments until the S.B.R. should act on his request for retirement. 3 A judge of the Superior Court granted the plaintiff's motion for summary judgment. The judgment declared that the plaintiff was entitled to line-of-duty payments from the date they were terminated until the date the S.B.R. acted upon his "petition for retirement" and that his account should be credited with the sick leave that he had used after March 13, 1978.

This case calls for an interpretation of the scope of G.L. c. 92, § 63B, inserted by St.1948, c. 653. We note at the outset that the legislative history of § 63B affords us no assistance 4 and that there are no decisions of the Supreme Judicial Court or of this court concerning this section.

The plaintiff would have us hold that the Metropolitan District Commission (commission), acting through the L.O.D. Board, was not authorized to terminate his line-of-duty status by finding that his incapacity was permanent after it had initially found that it was temporary. The defendants contend that the plain words of the statute authorized the commission to find that the plaintiff's incapacity was no longer temporary and, consequently, that his line-of-duty status should be terminated. We agree with the defendants' analysis.

Section 63B is silent as to who should evaluate the temporary incapacity for service of an officer injured in the line of duty. It does, however, expressly limit the commission's authority to make payments to an officer to that period during which he is temporarily incapacitated from injuries suffered in the line of duty. We are of the opinion that the commission as the employing agency necessarily has the authority under § 63B to determine whether an officer is so incapacitated. The plaintiff does not question the commission's power in that respect but contends that the power to determine permanent incapacity resides only in the S.B.R. Section 63B is silent as to any authority to make a determination of permanent incapacity. We conclude, however, that a necessary corollary of the power to make an initial finding of temporary incapacity is that the commission is also empowered to reevaluate a given case and determine whether an officer's temporary incapacity continues. Should it find that an officer's incapacity is permanent, it could not properly continue to make payments under § 63B.

We note that G.L. c. 41, § 111F, as amended through St.1977, c. 646, § 2, provides a system of compensation for city or town police officers and firefighters such as that which the plaintiff urges us to read into § 63B. That is, once an officer is found to be temporarily disabled, he is granted leave with pay, which continues until he is certified fit or until he is "retired or pensioned in accordance with law." This procedure closes any hiatus between payments under leave with pay and payments under a retirement system. No such procedure is included in the plan enacted in § 63B. Had the Legislature intended to include such a procedure in § 63B, it could easily have done so, as it did when it later enacted § 111F. 5

The plaintiff's basic argument is that we should construe § 63B and G.L. c. 32, § 7, as parts of a common scheme so that the payments under § 63B must continue until the S.B.R. determines an officer's incapacity to be permanent and retires him. Although § 7 does restrict the grant of accidental disability retirement to cases where the disabling injury was sustained in the performance of duty, as does § 63B, the plaintiff's contention flies in the face of the retroactivity provisions in § 7. 6 Also there is no cross reference between these sections or the chapters in which they appear. Desirable as it might be to amend § 63B so that it would operate in the same...

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3 cases
  • Pinshaw v. Metropolitan District Commission
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 30, 1988
    ...two situations: where an officer suffers financial loss from his own injury in the line of duty, see Montague v. Commissioner of the Metropolitan Dist. Comm'n, 9 Mass. App. Ct. 62 (1980), and where an officer must pay damages for harm to a third person caused "while acting as a police offic......
  • Blair v. Board of Selectmen of Brookline
    • United States
    • Appeals Court of Massachusetts
    • August 15, 1988
    ...§ 111F, Hennessey v. Bridgewater, 388 Mass. 219, 225-227, 446 N.E.2d 58 (1983). See also Montague v. Commissioner of the Metropolitan Dist. Commn., 9 Mass.App.Ct. 62, 65, 399 N.E.2d 504 (1980), where § 111F is distinguished from the statute then under consideration by this court in a manner......
  • Spartichino v. Commissioner of Metropolitan Dist. Com'n
    • United States
    • Appeals Court of Massachusetts
    • August 10, 1987
    ...no fault of his own while in the actual performance of duty." See discussion of the statute in Montague v. Commissioner of the Metropolitan Dist. Commn., 9 Mass.App.Ct. 62, 399 N.E.2d 504 (1980). A judge in the Superior Court found that Spartichino, a Metropolitan District police officer, b......

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