Town of Ware v. Town of Hardwick
Town of Ware v. Town of Hardwick
Opinion of the Court
The town of Ware (Ware), as assignee of Randall Witkos, brought an action to require the town of Hardwick (Hardwick) to pay to Ware statutory “injured on duty” benefits under G. L. c. 32, § 85H, allegedly due to Witkos on account of an aneurysm that disabled him while he was performing his
Standard of review of a case stated. Where an action was treated as a case stated
Background. Witkos was both a full-time fire fighter for Ware and a part-time police officer for Hardwick. He had worked as a full-time fire fighter for Ware for many years. Witkos worked the entire day of August 29, 1996, at his Ware fire fighter job.
Initially Ware began paying Witkos paid leave benefits under G. L. c. 41, § 111F.
Witkos was totally disabled by the aneurysm and never
Meanwhile, Blue Cross Blue Shield of Massachusetts, which had paid for Witkos’s hospitalization and medical care expenses, retracted its coverage under the terms of its health insurance policy covering Witkos, on the ground that his injuries were work-related.
“Whenever a call fire fighter or any member of a volunteer fire company in a town ... or reserve or special or intermittent police officer of a town, or a reserve police officer or reserve or call fire fighter of a city 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 . . . force thereof ... for the first year of service therein . . . provided, that no such compensation shall be payable for any period after such police officer . . . has been retired or pensioned in accordance with law . . . .”
G. L. c. 32, § 85H, as amended through St. 1970, c. 382, § 1.
It is not necessary to a temporary compensation claim under G. L. c. 32, § 85H, to establish that the disability “sustained in the performance of . . . duty” was caused specifically by the
Hardwick, citing Jones v. Wayland, 380 Mass, at 120, argues that Witkos should not be able to collect benefits for Ms Ware fire fighter job from both Ware (under G. L. c. 41, § 111F) and from Hardwick (under G. L. c. 32, § 85H). But unlike the situation in that case, tMs appeal does not involve the potential for overlapping benefits under § 85H and § 111F as related to an employee “who had lost only one job.” Jones v. Wayland, supra.
Finally, there is no requirement, as argued by Hardwick, that Witkos or someone on his behalf make a formal claim for benefits under G. L. c. 32, § 85H, before commencing an action to enforce it. See Jones v. Wayland, 380 Mass. at 117.
Reimbursement for medical bills. We turn next to the claims of Witkos against Hardwick for indemnification for his medical bills under G. L. c. 41, § 100. This statute does require some causal connection between the medical condition treated and the performance of his job for Hardwick. See G. L. c. 41, § 100 (indemnification for reasonable medical expenses “incurred as the natural and proximate result of an accident occurring or of undergoing a hazard peculiar to his employment, while acting in the performance and within the scope of his duty without fault of his own”).
Contrary to the arguments of Hardwick, there is evidence in the record to support Witkos’s claim of a causal connection between the acute dissection of his aortic aneurysm and his activity as a part-time police officer for Hardwick. Immediately
Witkos is not prevented, under the doctrine of issue preclusion, from claiming a causal connection between his police job and the disabling condition by the fact that he successfully obtained a disability pension from the Hampshire County board of retirement on the ground that he was disabled as a result of his Ware job as a fire fighter. This retirement outcome followed Ware’s agreement in the grievance settlement not to oppose Witkos’s application for disability retirement, which in effect allowed the causation presumption contained in the heart law, G. L. c. 32, § 94, to be conclusive.
Furthermore, the fact that such a condition may be causally related to Witkos’s job as a fire fighter does not preclude the possibility that it is also causally related to the performance of his job as a part-time police officer. A disability under the heart law is based on the presumption that heart disease is a long-term illness that can be exacerbated by the stress of working as a fire fighter. A final stressful incident which occurs while the fire fighter is working on some other job may be the immediate precipitating disabling event in a long chain of causation that
Nor is there any preclusive effect to the proceeding before the Hampshire County retirement board for accidental disability retirement benefits under the heart law and based upon the risk that Witkos might suffer another acute aortic episode in the future. Here Witkos sought indemnification for medical expenses under G. L. c: 41, § 100, for treatment relating to the acute event of aortic dissection that he suffered while on duty as a police officer. He is not prevented from making a claim for medical expenses.
There is support for the argument that Witkos made some application for these benefits. See G. L. c. 41, § 100. No particular form of application is required by statute. See ibid. The record shows that Witkos did enough to bring this claim to the attention of Hardwick to satisfy the statutory condition. Early in the process, Witkos discussed his medical bills with Hardwick’s police chief and Ware’s fire chief. The Ware fire chief had requested, on Witkos’s behalf, that Hardwick make arrangements to pay all the medical bills associated with his treatment. In addition, Witkos’s attorney submitted detailed medical bills to counsel for Hardwick. See O’Donovan v. Somerville, 41 Mass. App. Ct. at 917, 918 (1996) (employee forwarded his medical bills to the chief of the fire department).
We therefore agree with the trial judge’s conclusion that Wit-kos is entitled to indemnification from Hardwick for his relevant medical expenses.
Conclusion. The stipulated facts and admissions in the pleadings show that (1) Witkos is disabled; (2) his incapacity was
So ordered.
The parties presented below an agreement setting forth “all the material ultimate facts on which the rights of the parties are to be determined by the law.” Pequod Realty Corp. v. Jeffries, 314 Mass. 713, 715 (1943), quoting from Frati v. Jannini, 226 Mass. 430, 431 (1917). The label is not the determinative factor in treating an action as a “case stated,” but rather the court looks to the substance of the agreement. Id. at 432.
“Whenever a police officer or fire fighter of a . . . town ... is incapacitated for duty because of injury sustained in the performance of his duty without fault of his own ... he shall be granted leave without loss of pay for the period of such incapacity . . . .” G. L. c. 41, § 111F, as appearing in St. 1964, c. 149.
Hardwick admitted such in its answer to Ware’s complaint, clarifying any ambiguity in the settlement agreement about the scope of the assignment.
Although Ware’s complaint refers to benefits allegedly due to Witkos from
General Laws c. 32, § 7(1), as amended by St. 1996, c. 306, § 14, provides accidental disability retirement for a qualified member in service “who is unable to perform the essential duties of his job and that such inability is likely to be permanent before attaining the maximum age for his group by reason of a personal injury sustained or a hazard undergone as a result of, and while in the performance of, his duties at some definite place and at some definite time on or after the date of his becoming a member . . ., without serious and willful misconduct on his part, upon his written application on a prescribed form filed with the [retirement] board and his respective employer ....’’
In relevant part, G. L. c. 32, § 94, as amended through St. 1991, c. 552, § 26, provides that “any condition of impairment of health caused by . . . heart disease resulting in total or partial disability . . . to a uniformed member of a paid fire department or permanent member of a police department . . . shall .... be presumed to have been suffered in line of duty, unless the contrary be shown by competent evidence.”
Witkos’s claim against Blue Cross Blue Shield of Massachusetts is not before us.
General Laws c. 32, § 85H, contains two types of “injured on duty” benefits: a permanent retirement benefit and temporary compensation related to the inability to perform a regular occupation. Jones v. Wayland, 380 Mass. at 112. At issue here are the temporary compensation benefits for the period prior to Witkos obtaining accidental disability retirement benefits from Hampshire County.
Our decision should not be read to suggest that Witkos in fact had enforceable rights under both § 111F (against Ware) and § 85H (against Hardwick) to compensation for his disablement from his Ware fire fighter job. Because Witkos’s grievance seeking § 111F benefits from Ware was the subject of legal settlement and release, that claim was never properly litigated. It is not before us, we are not in a position to opine on its merits, and we are thus not confronted with the potential for “double recovery” that troubled the court in Jones v. Wayland, 380 Mass. at 120.
Moreover, we read the Jones decision simply as holding that, to avoid a “double recovery” not intended by the Legislature, the special police job (or other enumerated police or fire fighter job) being relied on to invoke § 85H in the first instance cannot also count as the § 85H claimant’s “regular occupation” for purposes of compensation. Although dictum in the Jones opinion suggests categorically that “ ‘regular occupation’ cannot be police or fire duty,” ibid., this language was not penned with the case in mind of a full-time public safety officer for one town suffering injury in the course of his part-time public safety work for another town.
General Laws c. 41, § 100, as amended through St. 1970, c. 27, provides in pertinent part that, “Upon application by a fire fighter or police officer of a city, town or fire or water district, ... the board or officer of such city, town or district authorized to appoint fire fighters or police officers, as the case may be, shall determine whether it is appropriate under all the circumstances for such city, town or district to indemnify such fire fighter or police officer for his reasonable hospital, medical, surgical, chiropractic, nursing, pharmaceutical, prosthetic and related expenses and reasonable charges for chiropody (podiatry) incurred as the natural and proximate result of an accident occurring or of undergoing a hazard peculiar to his employment, while acting in the performance and within the scope of his duty without fault of his own.” Furthermore, the statute “specifically provides for a petition to the Superior Court when an application for reimbursement is denied or ignored.” O’Donovan v. Somerville, 41 Mass. App. Ct. 917, 918 (1996).
Under the heart law, the Legislature has provided a statutory presumption that a disabling heart condition developed by a fire fighter is causally related to the job as a fire fighter. We have interpreted the heart law presumption as relating only to retirement, see Vaughan v. Auditor of Watertown, 19 Mass. App. Ct. 244, 246 (1985), and thus it has no application to medical expense indemnification under G. L. c. 41, § 100.
We do not hereby suggest that such a causation scenario, if proved in a particular casé, would entitle a person to benefits under both G. L. c. 32, § 85H, and G. L. c. 41, § 111F, for disablement from the person’s primary public safety occupation. As we explained in note 10, supra, there is no § 111F claim against Ware before us, and thus we express no opinion on how the two statutes interact in a dual causation case.
Hardwick has not asserted that it would have exercised whatever discretion it may have under G. L. c. 41, § 100 (see note 11, supra, for relevant text), to decide that reimbursement is not “appropriate under . . . the circumstances.” We deem that issue waived and express no opinion thereon.
The amended judgment in the Ware action entered in the amount of $31,071.64, with interest of $5,512.61 calculated from the date Ware filed its complaint on October 5, 1998. The trial judge did not err by adding interest from the date of the commencement of Ware’s action, October 5, 1998. See G.L. c. 231, § 6C.
Reference
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- Town of Ware v. Town of Hardwick (and a companion case)
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