Opinion
C.A. 98-01-01948, C.A. 98-01-02213.
February 23, 2005.
MEMORANDUM OF DECISION AND ORDER
INTRODUCTION
In this consolidated civil action the defendant Town of Ware (Ware) seeks indemnification pursuant to G.L. c. 41, § 100 from defendant Town of Hardwick (Hardwick) for monies paid by Ware to the plaintiff, Randall J. Witkos (Witkos), pursuant to G.L. c. 41 § 111F and sick leave. The matter was tried by the court without a jury on the basis of a stipulation as to the facts.
FACTS
On August 29, 1996 Witkos was employed by the Town of Ware as a permanent full-time firefighter/emergency medical technician and by the Town of Hardwick as a special police officer. On August 29, Witkos finished his 8:00 a.m. to 6:00 p.m. shift for the Town of Ware. After arriving home Witkos received a call from the Hardwick Police Department seeking assistance with harvesting and transporting some seized marijuana plants. Witkos suffered tremendous chest pain as well as difficulty breathing after approximately one half hour of duty with the Hardwick Police. Witkos subsequently collapsed at the scene. Witkos was transported to Mary Lane Hospital and subsequently transferred to Bay State Medical Center where he was diagnosed with an aortic aneurysm that required surgery. The injury was life threatening; the medical and hospital bills exceeded $136,000.
The injury has left Witkos disabled. Initially, Ware placed Witkos on leave with full pay pursuant to G.L. c. 41 § 111F. From August 29, 1996 to June 5, 1997, Witkos was paid $24,054.44 in benefits. On June 5, 1997, Ware terminated Witkos' injured while on duty benefits under G.L. c. 41, § 111F and, instead, paid Witkos $19,278.73 in sick leave benefits. Witkos made no claim against Hardwick for payment under G.L. c. 32 § 85H which provides that in certain circumstances part-time public safety officers such as call fire fighters are entitled to receive their wages during periods of job-related disability. On or about July 15, 1997 Witkos decided to initiate grievance proceedings with respect to Ware's decision to terminate his benefits. Witkos and Ware settled the grievance in September 1997 whereby Ware agreed not to oppose Witkos' application for disability retirement from the Hampshire County Retirement Board pursuant to G.L. c. 32 § 94 (the "Heart Law"). The settlement also released Ware from any further obligations to Witkos and assigned Witkos' claims against Hardwick (under G.L. c. 32 § 85H) to Ware. Under G.L. c. 41 § 111F the value of this assignment could not exceed the amount of benefits already paid out ($24,054.44).
"Whenever a police officer or fire fighter of a city, town, or fire or water district is incapacitated for duty because of injury sustained in the performance of his duty without fault of his own, or a police officer or fire fighter assigned to special duty by his superior officer, whether or not he is paid for such special duty by the city or town, is so incapacitated because of injuries so sustained, he shall be granted leave without loss of pay for the period of such incapacity; provided, that no such leave shall be granted for any period after such police officer or fire fighter has been retired or pensioned in accordance with law or for any period after a physician designated by the board or officer authorized to appoint police officers or fire fighters in such city, town or district determines that such incapacity no longer exists."
The record does not indicate why Ware terminated the benefits to instead pay sick leave.
"The selectmen of every town may retire from active service any . . . special or intermittent police officer who becomes permanently disabled mentally or physically by injuries sustained through no fault of his own in the actual performance of duty as such fire fighter or policeman. Whenever a call fire fighter . . . in a town whose service as such has been approved by the board of selectmen of such 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 city or town for the period of such injury or incapacity the amount of compensation payable to a permanent member of the police or fire force thereof, as the case may be, for the first year of service therein . . ." G.L. c. 41, § 111F.
The record is silent on the details of the grievance procedure that was available to the parties.
"Notwithstanding the provisions of any general or special law to the contrary affecting the non-contributory or contributory system, any condition of impairment of health caused by hypertension or heart disease resulting in total or partial disability or death to a uniformed member of a paid fire department or permanent member of a police department . . . shall, if he successfully passed a physical examination on entry into such service, or subsequently successfully passed a physical examination, which examination failed to reveal any evidence of such condition, be presumed to have been suffered in the line of duty, unless the contrary be shown by competent evidence." G.L. c. 32, § 94.
"Where the injury causing the incapacity of a firefighter or police officer for which he is granted a leave without loss of pay and is paid compensation in accordance with the provisions of this section, was caused under circumstances creating a legal liability in some person to pay damages in respect thereof, either the person so injured or the city, town . . . paying such compensation may proceed to enforce the liability of such person in any court of competent jurisdiction. The sum recovered shall be for the benefit of the city, town or fire or water district paying such compensation, unless the sum is greater than the compensation paid to the person so injured, in which event the excess shall be retained by or paid to the person so injured." G.L. c. 32, § 85H.
The Hampshire County Retirement Board approved of Witkos' disability retirement under the provisions of G.L. c. 32 § 94. Thus the central question presented by this case is whether the Town of Ware, as the assignee of the rights of the injured employee under G.L. c 32 § 85H, is entitled to recover from the Town of Hardwick a portion of the monies Ware paid out to Witkos under G.L. c. 41 § 111F.
DISCUSSION
1. Public Employee's entitlement to benefits. Before making a determination on the indemnification issue, this court must address whether Witkos is entitled to any benefits under G.L. c. 32, § 85H. The statute provides that "any . . . special police officer who becomes permanently disabled mentally or physically by injuries sustained through no fault of his own in the actual performance of duty as [a] policeman" is entitled to retirement benefits "equal to two thirds of the annual rate of compensation payable to a regular or permanent member of the police or fire force, as the case may be, thereof for the first year of service therein." G.L. c. 32 § 85H. Municipal liability for certain injured part-time employees under G.L. c. 32, § 85H is as broad, if not broader, than municipal liability for certain full-time employees under G.L. c. 41, § 111F. The essential requirement is that the employee must have been injured in the performance of his or her duties and without fault. See Hayes v. Revere, 24 Mass. App. Ct. 671, 676 (1987). G.L. c. 32, § 85H, like G.L. c. 41, § 111F and unlike G.L. c. 32, § 7, does not require that the injured municipal employee establish a causal connection between the injury and his or her work. See Wormstead v. Town Manager of Saugus, 366 Mass. 659, 662 (1975).
According the parties' stipulation, "On August 29, 1996, while working as a part-time police officer in Hardwick, Witkos, through no fault of his own, suffered an injury which he has since been disabled." Ware v. Hardwick, Complaint, ¶ 5; Answer ¶ 5. Therefore, Witkos was entitled to benefits under G.L. c. 32 § 85H from Hardwick because that is where Witkos was on duty at the time of debilitating incident.
Because Witkos was permanently disabled from his regular occupation as a full-time Ware firefighter, G.L. c. 32 § 85H also operates to entitle him to be paid at the rate of a permanent member of the Hardwick Police Department. Payment is for the period from the commencement of the disability until the date of retirement. G.L. c. 32 § 85H. This period, in the present case is from August 29, 1996 through November 23, 1997, the effective date of Witkos' retirement. The total amount due to Witkos is $31,071.64. This is calculated based on the annual rate of $24,460.54 for the four months of 1996 (August 29, 1996 until December 31, 1996) and the annual rate of $25,001.60 for the eleven months of 1997 (January 1, 1997 until the effective retirement date in November 1997).
2. Indemnification. According to the September 1997 Settlement Agreement, Witkos assigned any claim he had against Hardwick to Ware. There is no challenge to the validity of this Agreement and it is not prohibited by G.L. c. 41, § 111 or any other applicable statute. Therefore, Ware is entitled to indemnification from Hardwick for any benefits Witkos could seek against Hardwick. As was established above, Witkos is entitled to benefits from Hardwick totaling $31,071.64 under G.L. c. 32 § 85H. Ware paid a total of $43,333.17 to Witkos between G.L. c. 41 § 111F benefits ($24,054.44) and sick leave benefits ($19,278.73). Because the amount above due to Witkos from the Hardwick Police is less than the amount paid by Ware, Ware is entitled to the full amount from Hardwick.
3. Subject matter jurisdiction. Hardwick asserts that the court lacks subject matter jurisdiction based on G.L. c. 41 § 100 because Witkos failed to submit an application as required by the statute. However, the statute does not contain any formal application that must be used, nor does the statute proscribe any particular steps that must be taken to determine a claim for indemnification of medical expenses. O'Donovan v. City of Somerville, 41 Mass. App. Ct. 917, 918 (1996). The submission of medical bills to the appropriate town officer at time any time can constitute proper application. Id. There is no statute of limitations set forth in G.L. c. 41, § 100 for filing a claim. According to the Stipulation of Facts #49, Witkos' counsel submitted detailed medical bills to the counsel for Hardwick. This constitutes a valid application. The statute specifically gives this court jurisdiction within two years after filing an application to review an adverse decision or a failure to act by a municipal board or officer in order "to determine whether such board of officer has without good cause failed to act on such an application, or in denying the application, in whole or in part, has committed error of law, or has been arbitrary or capricious, or has abused its or his discretion, or otherwise has not acted in accordance with law." G.L. c. 41, § 100.
On the record before this court, I rule that Witkos made a proper and timely application for indemnification under G.L. c. 41, § 100, that Ware, as the assignee of Witkos, has the right to stand in his shoes to seek indemnification, and that this court has subject matter jurisdiction.
4. Collateral estoppel. The defendant Hardwick maintains that the county Retirement Board's decision that Witkos was entitled to a disability pension pursuant to G.L. c. 32, § 7 was based on the determination of a medical panel under G.L. c. 32, § 6 which is turn rests on a factual finding that the injury suffered by Witkos arose out of his duties as a firefighter. In a related line of attack, Hardwick argues that Ware, as the assignee of Witkos, should be judicially estopped from asserting a contrary position in this litigation from the position Witkos took before the Retirement Board where he maintained that his injuries arose out of his work as a firefighter. Neither argument is persuasive.
When the doctrine of issue preclusion is invoked, "[t]he core inquiry is whether the issue on which preclusion is sought has been the product of full litigation and careful decision." Bailey v. Metropolitan Property Liability Co., 24 Mass. App. Ct. 34,36 (1987). The short answer to that question is "no." There is nothing inconsistent about the claim made by Witkos before the Retirement Board pursuant to G.L. c. 32, §§ 7 94 that his injury arose out of his work as a firefighter, and the claim in this proceeding pursuant to G.L. c. 41, § 100 and G.L. c. 32, § 85H that he was injured in the performance of his duties as a police officer. The brief submitted by Ware is correct in characterizing G.L. c. 32, § 94 as a "trump card." See brief by the Town of Ware at 10 Appendix A. The statute gives someone in the position of Witkos, who clearly was eligible for benefits under G.L. c. 32, § 85H based on the above facts, the opportunity to pursue an alternative approach to obtain compensation for his injuries. There is no adjudication by a competent body in this case that Witkos was not eligible for benefits under G.L. c. 32, § 85. The issues decided by Medical Panel and Hampshire County Retirement Board do not factually or legally preclude the recovery sought by Ware, as the assignee of Witkos, in this case. Furthermore, the affirmative defense of collateral estoppel was never raised by Hardwick in its Answer or Complaint.
ORDER
Based on G.L. c. 32 § 85H and the stipulated facts of the parties, Witkos is entitled to the benefits he seeks under that statute. The assignment between Witkos and Ware stemming from the 1997 Settlement Agreement allows Ware to seek indemnification from Hardwick under G.L. c. 41, § 100. Therefore, judgment should enter for the Town of Ware in the amount of $24,054.44.