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
Despite its caption, the order appealed from was not a judgment in legal effect. It did not finally adjudicate the
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
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 as 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 boisterous 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 paper hanger, 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 fact finder contemplated by the statute is the appointing authority (here, the selectmen) and that independent findings by
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,
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, 380 Mass. at 119-120, 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.
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 (1961), to include special duty, see note 4, supra, and it is not reasonable to suppose that the Legislature's purpose in adding the express special duty language to § 111F in 1961 was to diminish the scope of the more general phrase in § 85H. The latter section was not mentioned in the 1961 statute. The more likely explanation is that the Legislature added the special duty language to § 111F simply to clarify any uncertainty in that regard. The town's second argument is that the benefits payable under both §§ 85H and 111F should be held to terminate at the end of the period of appointment of a special officer. But both sections are explicit on the point that their benefits are payable for the period of incapacity, subject to termination when the officer has been retired or pensioned. See Thibeault v. New Bedford, 342 Mass. 552, 557 (1961). The judicially declared purpose of the two complementary sections is best effectuated by reading their expiration-of-benefits provisions literally.
On all contentions discussed to this point, we find ourselves in complete agreement both with the decision of the
In Jones v. Wayland, 374 Mass. at 262, it was held that the town could subtract from its liability under § 111F amounts the injured police officer had received as salary-continuation benefits under a group insurance policy maintained by the town. The decision discussed the collateral source rule and its rationale, that "if there is to be a `windfall,' such benefit should accrue to the injured party rather than to the wrongdoer.... Where, as here, the party found liable [i.e., the town] is not responsible for the injury, the rule would appear to be inapplicable." It may be that salary-continuation benefits received by an injured person from his own privately maintained insurance would not be considered a "windfall" within the meaning of that language; but welfare payments are different from insurance in that they are not the result of provision having been made
For the reasons stated at the beginning of this opinion, the appeal must be dismissed. No party is to have costs of appeal. The request of the plaintiff for damages and attorneys' fees pursuant to G.L.c. 211A, § 15, and Mass.R.A.P. 25, as amended, 378 Mass. 925 (1979), is denied.