Spartichino v. Commissioner of Metropolitan Dist. Com'n

• Decision Date: 10 August 1987
• Citation: 511 N.E.2d 623,24 Mass.App.Ct. 965
• Parties: Raymond SPARTICHINO v. COMMISSIONER OF the METROPOLITAN DISTRICT COMMISSION.
• Court: Appeals Court of Massachusetts

Page 623

511 N.E.2d 623

24 Mass.App.Ct. 965

Raymond SPARTICHINO v. COMMISSIONER OF the METROPOLITAN DISTRICT COMMISSION.

Appeals Court of Massachusetts Suffolk.

Argued June 5, 1987.

Decided August 10, 1987.

Lisa A. Levy, Asst. Atty. Gen., for defendant.

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

Before DREBEN, KASS and FINE, JJ.

RESCRIPT.

Under G.L. c. 92, § 63B, as inserted by St. 1948, c. 653, a Metropolitan District police officer may receive pay lost "by reason of absence from duty ... because of temporary incapacity caused by injury suffered through 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, by reason of events which occurred in the line of duty and culminated on June 4, 1985, became "incapacitated to perform his duties as an MDC police officer since June 4, 1985, on either a full time basis or a limited duty basis."

The commission (MDC) acknowledges that under Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974), we are bound to accept the findings of fact of the trial judge unless clearly erroneous, Capitol Bank & Trust Co. v. Richman, 19 Mass.App.Ct. 515, 519, 475 N.E.2d 1236 (1985). Nevertheless, the MDC proceeds to invite us to weigh the evidence, particularly that given by Dr. Barry, a psychologist. We decline the invitation. On the basis of the report dated June 4, 1985, by Spartichino's immediate supervisor, and the written reports and testimony of Dr. Barry and Dr. Seymour (the latter examined the plaintiff on behalf of the MDC), there was adequate basis in the record for the judge's finding about Spartichino's incapacity.

The MDC appears to concede Spartichino's temporary incapacity (if not the precise date of its inception), but disputes the judge's finding that Spartichino was not available for limited duty. See Newton Branch of the Mass. Police Assn. v. Newton, 396 Mass. 186, 192, 484 N.E.2d 1326 (1985). The judge was entitled to accept the evidence of Dr. Barry, who gave his opinion that Spartichino was not up to limited duty, against that of Dr. Seymour, who thought assigning Spartichino to purely clerical duties might do him some good.

There is also support in the record for the judge's finding that no definitive offer of limited duty was extended to Spartichino on January 6, 1986, the earliest date upon which the MDC contends such an offer was made. At most, the record reflects discussion of possibilities of light duty.

No error, therefore, attended the judgment entered in the Superior Court that Spartichino is entitled to his benefits under G.L. c. 92, § 63B, for the period beginning June 4, 1985, to January 7, 1986, and thereafter until Spartichino "returns to limited or full duty or is adjudged capable of performing limited or full duty by his treating psychologist."

Spartichino, as appellee, asks for double costs, counsel fees, and penalty interest on the ground that the appeal is frivolous. See G.L. c. 211A, § 15; Mass.R.A.P. 25, as...