Politano v. Board of Selectmen of Nahant

• Decision Date: 10 December 1981
• Citation: 429 N.E.2d 31,12 Mass.App.Ct. 738
• Parties: John F. POLITANO v. BOARD OF SELECTMEN OF NAHANT et al.
• Court: Appeals Court of Massachusetts

Page 31

429 N.E.2d 31

12 Mass.App.Ct. 738

John F. POLITANO v. BOARD OF SELECTMEN OF NAHANT et al.

Appeals Court of Massachusetts, Essex.

Argued Jan. 14, 1981.

Decided Dec. 10, 1981.

Alexander H. Pratt, Jr., Boston (Jonathan Bangs, Town Counsel, Boston, with him), for defendants.

Neil Rossman, Boston (Jeffrey E. Rossman, Boston, with him), for plaintiff.

Before ARMSTRONG, PERRETTA and KASS, JJ.

ARMSTRONG, Justice.

The plaintiff, who was found by a judge of the Superior Court to have been disabled while acting as a special police officer in Nahant, seeks by his amended complaint ¹ to have the defendant town indemnify him for medical expenses under G.L. c. 41, § 100, and provide him salary continuation benefits under G.L. c. 41, § 111F, and G.L. c. 32, § 85H. The defendants appeal from a "judgment" which awarded benefits under the latter two statutes, annulled the decision of the selectmen denying benefits under G.L. c. 41, § 100, and ordered the selectmen to reconsider the application in a manner consistent with the findings and rulings made by the judge.

Despite its caption, the order appealed from was not a judgment in legal effect. It did not finally adjudicate the plaintiff's claim for medical expenses under G.L. c. 41, § 100. In the absence of an express determination of the type called for by the first sentence of Mass.R.Civ.P. 54(b), 365 Mass. 821 (1974), "any order or other form of decision, however designated, which adjudicates fewer than all the claims ... shall not terminate the action as to any of the claims ..., and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims ...." Rule 54(b), second sentence. See New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 677-678, 363 N.E.2d 526 (1977); Acme Engr. & Mfg. Corp. v. Airadyne Co., --- Mass.App. ---, --- - ---, Mass.App.Ct.Adv.Sh. (1980) 1027, 1028-1029, 404 N.E.2d 693. An order nullifying the decision of an administrative body and ordering reconsideration by that body of the underlying claim or application is not final in nature and is not appealable. Roberts-Haverhill Associates v. City Council of Haverhill, 2 Mass.App. 715, 719-720, 319 N.E.2d 916 (1974). Contrast Smalley v. Planning Bd. of Harwich, --- Mass.App. ---, ---, Mass.App.Ct.Adv.Sh. (1980) 1867, 1873, 410 N.E.2d 1219, where an order calling for further action by an administrative body was deemed to be an appealable judgment, notwithstanding retention of jurisdiction by the court, because the administrative body was given no discretion, being ordered to decide the matter in controversy in a manner specified by the court.

The "judgment" before us, however, was clearly intended to adjudicate finally the plaintiff's claims under G.L. c. 32, § 85H, and G.L. c. 41, § 111F. Arrearages to the date of the so-called judgment were computed and ordered to be paid with interest, and additional provisions computed the amounts due periodically and ordered payment thereof on a prospective basis. The issues involving those claims are separable from the § 100 claim, have been fully briefed and argued, and will have to be decided, if not now, then in the near future when the case has become technically appealable. In those circumstances, in the interests of economizing judicial time and sparing the parties unnecessary expense, we review the court's disposition of those claims at this time. ² Compare Ciszewski v Industrial Acc. Bd., 367 Mass. 135, 141-142, 325 N.E.2d 270 (1975).

The judge made detailed findings concerning the events which led to the plaintiff's claims. The plaintiff was employed by Nahant for a number of years as a special police officer. As such he worked only intermittently, earning on the average thirty-five dollars per week. On April 13, 1973, he was assigned by the chief of police to special duty at a bar-and-dance spot in Nahant known as Bayside Inn. He was to be paid for his services by the inn. His duties included keeping order both in the bar and in the lot outside. That evening he tried to escort a boistrous patron out of the inn. They struggled and fell to the floor. Other officers arrived on the scene to assist. The plaintiff told several patrons "that he was 'O.K., but my neck hurts.' " He completed his duty, staying until one o'clock. Although he continued for several weeks to work at his regular occupation as a painter and paperhanger, his neck hurt him with increasing severity. Ultimately an orthopedic surgeon determined that he had a broken vertebra immediately below the neck. Several operations were performed, but the plaintiff was and is now totally disabled from performing either his part-time occupation as a policeman or his regular occupation as a painter and paper-hanger. The disability, the judge found, resulted from the incident on the night of April 13, 1973.

Although the board of selectmen reached quite different conclusions, no contention is made that the judge's findings were not warranted on the evidence before him. The defendants make the contention with respect to the claim for medical expenses under G.L. c. 41, § 100, that the factfinder contemplated by the statute is the appointing authority (here, the selectmen) and that independent findings by the judge are inapposite. ³ The same contention is not made with respect to G.L. c. 32, § 85H, and G.L. c. 41, § 111F. There is nothing in the language of these sections or in the reported cases involving judicial review of administrative actions thereunder which suggests that a court is expected to defer to such findings of fact as may have been made at the administrative level and to confine its attention to questions of insufficiency of evidence or other legal error. Wormstead v. Town Manager of Saugus, 366 Mass. 659, 659-661, 322 N.E.2d 171 (1975) (§ 111F, findings by master), and Jones v. Wayland, 374 Mass. 249, 250-251, 373 N.E.2d 199 (1978) (both §§ 85G and 111F, findings by master), each illustrate that the facts concerning a claimant's eligibility for benefits under the two statutes are those found by the reviewing court based on the evidence before it.

Accordingly, the first question before us is whether, in light of the findings by the judge, the plaintiff is entitled to benefits under G.L. c. 32, § 85H, and G.L. c. 41, § 111F. The latter section as amended through St.1964, c. 149, provides that "(w)henever a police officer ... of a ... town ... is incapacitated for duty because of injury sustained in the performance of his duty without fault of his own, or a police officer ... assigned to special duty by his superior officer, whether or not he is paid for such special duty by the ... town, is so incapacitated because of injuries so sustained, he shall be granted leave without loss of pay for the period of such incapacity ...." The term "police officer" includes a special police officer such as the plaintiff, Jones v. Wayland, 4 Mass.App. 725, 730-731, 358 N.E.2d 822 (1976), Id. 374 Mass. at 255-257, 373 N.E.2d 199; and, because he was assigned to the special duty by his superior officer, it is irrelevant that he was paid for that duty not by the town but by the inn. Yates v. Salem, 342 Mass. 460, 462, 174 N.E.2d 368 (1961). ⁴ The pay recoverable by the plaintiff under § 111F is his regular compensation as a police officer, Jones v. Wayland, --- Mass. ---, Mass.Adv.Sh. (1980) 669, 677, 402 N.E.2d 63, in this case, his average weekly wage from that work, found by the judge to be thirty-five dollars per week.

General Laws c. 32, § 85H, as amended through St.1970, c. 382, §§ 1, 2, provides, in part, "(w)henever a ... special or intermittent police officer of a town ... is disabled because of injury or incapacity sustained in the performance of his duty without fault of his own, and is thereby unable to perform the usual duties of his regular occupation at the time such injury or incapacity was incurred, he shall receive from the ... town for the period of such injury or incapacity the amount of compensation payable to a permanent member of the police ... force thereof ..., for the first year of service therein ...." It was held in Jones v. Wayland, --- Mass. at --- - ---, Mass.Adv.Sh. (1980) at 677-678, 402 N.E.2d 63, that the benefits provided a special police officer under this section are complementary to those provided under G.L. c. 41, § 111F, the latter section protecting the income of the special officer from his police work and § 85H protecting the income of the special officer from his regular occupation, if he had one at the time of the injury. ⁵ "The policy behind (the complementary) compensation plan is clear: those individuals willing to submit themselves to the dangers inherent in police ... work while still looking to another job as a substantial source of support should not be made to suffer economically in the event that they are rendered incapable of performing this other employment due to an injury sustained while serving as a public safety officer." --- Mass. at ---, Mass.Adv.Sh. (1980) at 678, 402 N.E.2d 63.

The statutory purpose as determined in Jones v. Wayland would be seriously compromised if we were to accept either of the town's arguments concerning the scope of § 85H. The first, that § 85H covers injuries sustained in the line of regular duty but not those sustained in the line of special duty, is based principally on a difference in wording between the two sections. Section 111F, by virtue of an amendment appearing in St.1961, c. 218, covers the "special-duty" situation by express language. By contrast, § 85H contains only the general phrase "in the performance of his duty." But the identical phrase ("in the performance of his duty") appearing in § 111F was held in Yates v. Salem, 342 Mass. 460, 174 N.E.2d 368 (1961), to include special duty, see n.4, supra, and it is not reasonable to suppose that the Legislature's purpose in adding the express special duty language to §...