Officer. Public Employment, Assault pay
G. Hanson, Assistant Attorney General, for the defendants.
Gregory F. Galvin for the plaintiff.
January 21, 2008, while working for the defendant Department
of Correction (department), the plaintiff, Mark Marchand,
sustained a knee injury when he intervened to protect a
fellow employee from an assault by an inmate. As a result of
the injury, Marchand began to receive workers'
compensation benefits, pursuant to G. L. c. 152, as well as
assault pay, pursuant to G. L. c. 30, § 58. On November
19, 2010, after a hearing, the department's acting
commissioner determined that Marchand was medically unfit for
duty and separated him from employment as of that date.
Although Marchand continued to receive workers'
compensation benefits until July 4, 2013, the department
stopped paying assault pay as of the date of Marchand's
separation from employment.
then commenced this action against the department and the
Commonwealth's Executive Office of Health and Human
Services, Division of Human Resources, seeking a declaration
that he was entitled to continue receiving assault pay for so
long as he was receiving workers' compensation benefits
-- that is, until July 4, 2013. A judge in the Superior Court
agreed. He allowed Marchand's cross motion for summary
judgment; denied the defendants' motion; and ordered that
judgment enter declaring that Marchand was entitled to
assault pay retroactive to November 19, 2010, and continuing
through July 4, 2013. The Appeals Court affirmed the
judgment, in a memorandum and order issued pursuant to its
rule 1:28. See Marchand v. Department of
Correction, 87 Mass.App.Ct. 1127 (2015) . We allowed the
defendants' application for further appellate review.
single question before us is whether a Commonwealth employee
entitled to receive assault pay pursuant to G. L. c. 30,
§ 58, fourth par., is entitled to continue receiving
such pay even after he separates from employment so long as
he is entitled to workers' compensation benefits pursuant
to G. L. c. 152, or whether his right to assault pay ceases
with his separation from employment. The Appeals Court has
previously interpreted the relevant provisions of G. L. c.
30, § 58, to mean the former. See Moog v.
Commonwealth, 42 Mass.App.Ct. 925, 927 (1997). We
conclude, however, that the latter is the better
interpretation -- in short, that assault pay is contingent on
Commonwealth employee injured in the course of employment is
entitled, pursuant to G. L. c. 152, to workers'
compensation benefits, G. L. c. 30, § 58, provides a
means for the employee to continue to receive full pay while
absent from work as a result of the injury. Generally, as set
forth in first three paragraphs of § 58, the injured
employee may use accrued sick leave to receive full
Pursuant to the fourth paragraph of § 58, however, when
the employee is injured as a result of an act of violence by
a patient or prisoner in his custody, i.e., as a result of an
"assault, " the employee will receive full pay
"without such absence being charged against available
sick leave credits." Assault pay is, in other words,
intended to be a substitute for the use of accrued sick
is no question, as the Appeals Court rightly noted in the
Moog case, that assault pay and workers'
compensation are related benefits. See Moog, 42
Mass.App.Ct. at 926. There also is no question that the
assault pay provision in paragraph four of § 58
represents a "special provision for certain injured
State employees" entitled to workers' compensation
benefits under G. L. c. 152. See Moog,
supra. As the department suggests,  however, that
"special provision" is just that --special -- and
is an exception to the general rules set forth in the
section's first three paragraphs. The statute essentially
provides an added benefit to an employee assaulted in the
course of his or her employment, and recognizes that, in such
circumstances, the employee should not have to use sick leave
to maintain full pay. Sick leave, however, is a benefit
provided only to employees, and it reasonably follows that
when an employee separates from employment, the assault pay
benefit, connected, as it is, to sick leave, ceases. Nothing
in the statute requires or suggests otherwise. That the
now-former employee who had been receiving assault pay
continues to receive workers' compensation benefits after
separation from employment is of no moment -- those benefits
continue for all former employees who are otherwise entitled
to them, regardless of whether the employee was entitled to
department properly stopped paying Marchand assault pay
benefits pursuant to G. L. c. 30, § 58, as of the date
of his separation from employment. Accordingly, summary
judgment for the plaintiff is reversed, and the matter is
remanded for entry of summary judgment in favor of the
 Executive Office of Health and Human
Services, Division of Human Resources.
 Marchand initially received benefits
pursuant to G. L. c. 152, § 34 (temporary total
disability), from January 21, 2008, until July 10, 2008, and
then, from July 11, 2008, until July 4, 2013, received
benefits pursuant to ...