DiGloria v. Chief of Police of Methuen

• Decision Date: 25 October 1979
• Citation: 8 Mass.App.Ct. 506,395 N.E.2d 1297
• Parties: John J. DiGLORIA v. CHIEF OF POLICE OF METHUEN.
• Court: Appeals Court of Massachusetts

Page 1297

395 N.E.2d 1297

8 Mass.App.Ct. 506

John J. DiGLORIA v. CHIEF OF POLICE OF METHUEN.

Appeals Court of Massachusetts, Essex.

Argued Sept. 14, 1979.

Decided Oct. 25, 1979.

Peter J. McQuillan, Town Sol., Lawrence, for defendant, submitted a brief.

Charles M. Crowley, Jr., Boston, for plaintiff.

Before BROWN, GREANEY and KASS, JJ. GREANEY, Justice.

The plaintiff, a policeman, brought a complaint in substance seeking declaratory and other relief to establish his claim of right to be granted leave without loss of pay under G.L. c. 41, § 111F, as appearing in St.1964, c. 149. ¹ This statute, in so far as it applies to this case, grants leave without loss of pay to a police officer "incapacitated for duty because of injury sustained in the performance of his duty without fault of his own." The incapacity complained of stemmed from the plaintiff's voluntary use of narcotic drugs while working as an undercover narcotics agent. The case was presented to a Municipal Court judge sitting in the Superior Court under statutory authority on a "statement of agreed facts" ² and exhibits. On that record a judgment entered declaring that the plaintiff suffered an incapacity as a result of his police duties and that "such disability incapacitated him involuntarily and without fault on his part" from performance of his police duties. The judgment ordered the chief to take appropriate action to pay the plaintiff's salary and continuing medical bills. Since the case was presented on agreed facts and stipulated exhibits, and issues of credibility were not involved, we are not bound by the judge's conclusions, and we are free to draw our own inferences, decide the questions of law involved, and determine the appropriate judgment. Mahony v. Bd. of Assessors of Watertown, 362 Mass. 210, 211, 285 N.E.2d 403 (1972); Boston Teacher's Union v. School Comm. of Boston, 370 Mass. 455, 468, n.9, 350 N.E.2d 707 (1976); Foxborough v. Bay State Harness Horse Racing and Breeding Ass'n, Inc., 5 Mass.App. 613, --- ^A, 366 N.E.2d 773 (1977). We reverse.

The pertinent facts are these. The plaintiff, now age thirty-one, became a permanent police officer in Methuen in 1971. In early 1975 he volunteered for and was assigned to work with the Metropolitan Enforcement Group (M.E.G.) in undercover work regarding illegal drugs. A major goal of the group was to penetrate drug activities by cultivating contacts with informants and drug users and sellers in order to identify and prosecute persons for violations of State drug laws. DiGloria was sent to a two-week drug identification course conducted by the Federal government, where he received training in all phases of the drug culture. Later, he was assigned to work with an experienced M.E.G. undercover agent, William Thompson, from whom he received additional on-the-job training. He and Thompson frequented clubs and bars in order to become acquainted with drug users and to be led to drug sellers. They spent money, in the line of duty, and for which they were reimbursed, on alcoholic beverages for themselves, informants, and casual acquaintances. DiGloria and Thompson also developed and used techniques to create the impression, in order to gain the confidence of certain people, that they were using illegal drugs.

On March 31, 1975, DiGloria and Thompson were on duty in a bar when DiGloria "accidentally ingested 'choco' mescaline" which caused him to hallucinate and suffer other adverse reactions. This incident went unreported to his superiors. Apparently no permanent ill effects were suffered. An informant, one James Terry, a former heroin addict assigned to DiGloria and Thompson, informed the chief that between April and August 1975, DiGloria smoked marijuana with Terry on several occasions without Thompson's knowledge. During that period, DiGloria told Terry that he (DiGloria) was under the influence of certain drugs procured by him as the result of certain arrests. There was also evidence that Terry and DiGloria engaged in a stolen check cashing scheme (the checks were apparently stolen by Terry with DiGloria's knowledge) which was used to supply money to purchase heroin and other drugs for DiGloria in Worcester. Worcester was outside the jurisdiction of DiGloria's M.E.G. unit, and the trips to Worcester were unknown to his superiors.

By the middle of July, 1975, and for some time prior to that, DiGloria had become confused, depressed and anxious. Succumbing to the urgings of a female informant that an injection of heroin would make him feel better, he had gone to the informant's apartment and requested a heroin injection. In this fashion, DiGloria became a heroin addict. Upon discovery of the foregoing, on August 22, 1975, he was removed from the unit and carried on the payroll of the town as injured in the line of duty. It was expressly agreed that all the described activities involving drug use occurred without knowledge of his superiors and contravened his training. His drug use, in particular the heroin injection, was in express violation of both the rules and regulations of the M.E.G. and those of the Methuen police department. DiGloria has not been discharged from his position as a patrolman. The chief terminated his status as injured in the line of duty under G.L. c. 41, § 111F, on September 14, 1977, thereby precipitating this lawsuit. ³

The judge below also had before him considerable medical evidence in the form of exhibits attached to the statement of agreed facts. This evidence fell into the following categories: (1) medical records and doctors' reports tracing DiGloria's course of treatment for his drug addiction from the date he was removed from active police assignment, (2) medical opinions about his fitness and capacity for further police work, and (3) medical opinions concerning the existence of a link between his job and his addiction. The medical evidence establishes that he suffers from a psychosis due to multiple drug intoxication and that excellent progress is being made in curing his drug dependency. There is also an indication in the records that he has a medical condition due to a respiratory allergy which caused him to have a low tolerance for drugs. All the examining physicians concur that during the material periods in issue he was, and remains, unfit to perform the duties of a police officer. On the question of the relationship between his narcotics assignment and his addiction, the medical evidence differs. Doctor Nicholas D. Rizzo, his treating psychiatrist, concluded that DiGloria's addiction developed from a hazard peculiar to his employment. Doctor David D. Swenson, a psychiatrist retained by the defendant to evaluate DiGloria's condition, concluded that the officer did not become addicted to heroin or other drugs as a direct result of his narcotics work and that any addiction "would have been on a voluntary basis."

This appeal raises three issues for our consideration: (1) whether DiGloria's injury was sustained in the course of his duty as an undercover agent for M.E.G.; (2) whether DiGloria was injured without fault of his own; and (3) whether the doctrine of equitable estoppel should be applied on the facts of this case.

1. "Injury sustained in the performance of duty." DiGloria's incapacity for present duty is admitted. The defendant also appears to concede that the incapacity stemmed from an injury sustained in the performance of the plaintiff's duty. On this aspect of G.L. c. 41, § 111F, the standard for determining whether the injury occurred in the performance of the police officer's duty was defined in Wormstead v. Town Manager of Saugus, 366 Mass. 659, 663, 322 N.E.2d 171, 174 (1975), as "comparable to the words 'arising out of and in the course of his employment' contained in § 26 of the Workmen's Compensation Act, G.L. c. 152," as amended through St.1973, c. 855, § 1. The Wormstead decision adopted the settled construction of the language in c. 152, § 26, just quoted as bearing on the police disability statute and held that several factors were particularly pertinent to a police officer's claim, namely whether "the (officer's) injury occurred during a period (1) for which he was being paid, (2) when he was on call, and (3) while he was engaged in activities consistent with and helpful to the accomplishment of police functions." Id. at 664, 322 N.E.2d at 175. The facts in this case bearing on the heroin episode are cryptic with regard to whether that incident fell within the factors enumerated above, especially the third factor. There is material in the record to indicate that DiGloria's prior contacts with drugs fell beyond the scope of his undercover assignment. On the whole, there is not enough for us to make a clear cut and informed decision on the issue. Because of this, and in view of the defendant's concession that the disability occurred in the performance of the plaintiff's duties, we pass this question and turn to the dispositive issue of whether the injury occurred as a result of his fault.

2. "Without fault of his own." No case has been brought to our attention dealing directly with the standards to be applied in construing the fault language in G.L. c. 41, § 111F. ⁴ The Wormstead decision has told us, however, to look to cases interpreting analogous provisions of the Workmen's Compensation Act, G.L. c. 152, in deciding issues arising under G.L. c. 41, § 111F. Wormstead v. Town Manager of Saugus, supra at 663-664 n.5, 322 N.E.2d 171. In a general sense this reference to workmen's compensation cases is particularly apt because c. 41, § 111F is designed to do for police officers what c. 152 does for industrial workers who incur job related injuries.

The most closely analogous section of c. 152 to our problem is § 27 as appearing in St.1935, c. 331, which, since 1911, has provided that an employee injured by reason of "his serious and willful misconduct" shall be denied compensation. In our opinion, the concept of fault...