Blair v. Board of Selectmen of Brookline

• Decision Date: 03 June 1987
• Citation: 508 N.E.2d 628,24 Mass.App.Ct. 261
• Parties: Paul T. BLAIR v. BOARD OF SELECTMEN OF BROOKLINE et al. 1
• Court: Appeals Court of Massachusetts

Page 628

508 N.E.2d 628

24 Mass.App.Ct. 261

Paul T. BLAIR v. BOARD OF SELECTMEN OF BROOKLINE et al. ¹

Appeals Court of Massachusetts Suffolk.

Argued Dec. 5, 1986.

Decided June 3, 1987.

David Lee Turner, Town Counsel, Boston, for defendants.

Gerald F. Blair, Boston, for plaintiff.

Before GRANT, PERRETTA and KASS, JJ.

PERRETTA, Justice.

There is no dispute that the plaintiff, a twelve-year veteran of the Brookline police force as of the time of this controversy, has suffered from hypertension since 1980. On August 23, 1985, while participating in the arrest of a larceny suspect at a local supermarket, he experienced the symptoms of his condition (terrible headache, the sensation that his heart was racing, and the feeling of severe pressure in his hands, legs, and feet), and he went directly from the supermarket to his doctor's office. After examining the plaintiff, the doctor admitted him to a hospital, where he was treated for six days. Upon his discharge from the hospital, the plaintiff did not return to work, and the defendant chief of police placed him on sick-leave status. The plaintiff then brought this action seeking a declaration of his rights under the first paragraph of G.L. c. 41, § 111F, as appearing in St. 1964, c. 149. ² The defendants claimed that the plaintiff had not suffered an "injury" in the performance of his duties but had succumbed to a disease or progressive physical weakness. The judge concluded that the plaintiff is entitled to payment under § 111F from August 23, 1985, up to such time as he is "retired and/or pensioned or ... is deemed to have recovered from the incapacity from which he suffers." We agree.

I. The Facts.

Our review of the testimonial and documentary evidence shows ample support for the judge's findings of fact, which leave no room for doubt that he accepted the evidence offered by the plaintiff's treating physician of some six years. We, therefore, recite the facts as found by the judge and as relevant to the main issue before us whether the plaintiff sustained an "injury" in the performance of his duties as that term is used in § 111F. ³

When the plaintiff was first seen by his physician in October, 1980, she diagnosed him as suffering from hypertension. She has been treating him since that time for that condition, prescribing various medications, e.g., Inderal, hydrochlorothiazide, Atenolol, Dyazide, Wytension, and Serax. On numerous occasions in 1984 and 1985 (up to August 23rd), the plaintiff experienced the previously described symptoms of his condition while in the performance of his duties as a police officer. Although each of the specific events which brought on the symptoms could be characterized either as stressful or confrontational, none can be viewed as outside the realm of normal or routine police work. Although none of the events was of itself inherently dangerous, each exacerbated the plaintiff's condition, causing him to experience pronounced symptoms of acute hypertension.

When the plaintiff was seen by his physician immediately following the event of August 23rd, his blood pressure was "uncontrolled" and there was blood in his urine. According to his physician, in the case of a person of the plaintiff's age (mid-thirties), suffering from hypertension, the presence of blood in the urine could be indicative of ruptured capillaries in the kidneys. If this were so, it could mean that he also had ruptured capillaries in his brain. The physician testified that, throughout his years of treatment for hypertension, the plaintiff had demonstrated a pattern that, whenever he was away from work, his blood pressure would be within a "more reasonable ... sometimes very normal range." When his blood pressure was monitored "during time of his working," it was "more elevated."

Based upon various tests that the physician had performed upon the plaintiff, she had ruled out "organic causes" for his "uncontrolled hypertension." It was her medical opinion that "stress has been a very important, provocative feature of ... [the plaintiff's] pattern of hypertension." His blood pressure can "erratically or randomly become elevated," and he is "at a serious risk" of suffering a "stroke, cardiovascular disease and heart attack." She concluded that the plaintiff is "totally disabled from performing his duties as a police officer."

II. The Injury.

In determining whether the plaintiff is entitled to sick-leave pay under § 111F, we are guided by cases decided under the analogous provisions of G.L. c. 152, § 26. See Wormstead v. Town Manager of Saugus, 366 Mass. 659, 663-664, 322 N.E.2d 171 (1975); DiGloria v. Chief of Police of Methuen, 8 Mass.App.Ct. 506, 511, 395 N.E.2d 1297 (1979). These cases instruct that the term "injury" is to be given a "broad construction." Pell v. New Bedford Gas & Edison Light Co., 325 Mass. 239, 241, 90 N.E.2d 555 (1950). A claimant need not show that the injury was brought about by an accident. See Smith's Case, 307 Mass. 516, 517, 30 N.E.2d 536 (1940). The disabling condition or "disease must be, or be traceable directly to, a personal injury peculiar to the employment." Maggelet's Case, 228 Mass. 57, 61, 116 N.E. 972 (1917).

The fact that the incidents to which the plaintiff points as being the cause of his hypertension can be characterized as normal and routine events in police work does not render his injury noncompensable under the "wear and tear" doctrine. "To be compensable, the harm must arise either from a specific incident or series of incidents at work, or from an identifiable condition that is not common and necessary to all or a great many occupations. The injury need not be unique to the trade, and need not, of course, result from the fault of the employer. But it must, in the sense we have described, be identified with the employment" (footnote omitted), Zerofski's Case, 385 Mass. 590, 594-595, 433 N.E.2d 869 (1982). On the facts as found by the judge, the plaintiff's injury falls within the scope of § 111F. The hurt here is severely elevated blood pressure brought on by police work. An injury, for purposes of the statute, need not be traumatic in origin. "If a condition or incident of work aggravates a preexisting health problem, the employee has suffered a 'personal injury,' and may recover from the employer for his entire disability." Zerofski's Case, 385 Mass. at 593, 433 N.E.2d 869. See also Brightman's Case, 220 Mass. 17, 20, 107 N.E. 527 (1914); Donlan's Case, 317 Mass. 291, 293-294, 58 N.E.2d 4 (1944); Brzozowski's Case, 328 Mass. 113, 115-116, 102 N.E.2d 399 (1951).

The defendants also contend that the plaintiff is precluded from receiving § 111F sick-leave pay by reason of our holding in Vaughan v. Auditor of Watertown, 19 Mass.App.Ct. 244, 473 N.E.2d 698 (1985). In that case the officer "could not identify a specific occurrence or series of occurrences in line of duty as giving rise to hypertension." Id. at 246-247, 473 N.E.2d 698. The trial judge had there allowed sick-leave pay under § 111F by giving the officer the benefit of the statutory presumption set out in G.L. c. 32, § 94, as amended through St.1971, c. 1012, § 16, the so-called "heart law." That statute reads, in relevant part, that "any condition of impairment of health caused by hypertension or heart disease resulting in total or partial disability or death to a ... permanent member of a police department ... shall, if he successfully passed a physical examination on entry into such service, ... be presumed to have been suffered in line of duty, unless the contrary be shown by competent evidence." For reasons discussed in Vaughan, supra, we concluded that the presumption created by c. 32, § 94, is not applicable to claims for sick-leave pay under c. 41, § 111F.

We agree with the plaintiff that c. 32, § 94, has never been a consideration in this case. There is nothing in § 94 or in Vaughan, supra, which suggests, even slightly, that § 111F sick-leave pay is unavailable to an officer whose absence from work is attributable to hypertension sustained in the performance of duty. It is merely the benefit of the § 94 presumption that is unavailable to the officer. Here, however, the plaintiff did not rely upon the statutory presumption in presenting his claim. Rather, he offered evidence which identified specific events in the performance of his duties as giving rise to his hypertension. In concluding that the plaintiff was entitled to sick-leave pay under § 111F, the judge...