OFFICERS DISABLED BY CONDITIONS SUCH AS HYPERTENSION, HEART DISEASE AND BACK PROBLEMS MAY BE ABLE TO COLLECT § 111F INJURED-ON-DUTY WAGE BENEFITS AND BRING VALUABLE THIRD-PARTY PERSONAL INJURY CLAIMS AS WELL

M.G.L. c. 41 § 111F provides for leave with pay for police officers and fire fighters who, through no fault of their own are injured in the course of performing their duty. It states in relevant part: "Whenever a police officer . . . 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 . . .” Citing the language of the statute which refers to "injury,” Cities and Towns often deny such claims where there is no traumatic injury. Hence Officers who must leave work because of conditions such as hypertension, heart attack, and back problems often fail to make such claims or find that their claims have been denied. Once their available sick and vacation time is exhausted, the result is financially devastating to the disabled officer who cannot quickly return to work.

Such Officers should take notice that G.L. Chapter 41, Section 111F not only covers the "traditional" injuries associated with police work but also injuries resulting from the aggravation of conditions, such as hypertension or degenerative disc disease. See Willis v. Board of Selectmen of Easton, 405 Mass. 159 (1989) (allowing fire fighter to recover for injury caused by aggravation of a back problem); Blair v. Board of Selectmen, 26 Mass. App. Ct. 954 (1988) (permitting recovery under § 111F for injury caused by aggravation of hypertension).

In Willis the Supreme Judicial Court reaffirmed the notion that for purposes of § 111F, there is no need for the incapacitating injury to be "traumatic in origin." Willis, 405 Mass. at 166. Provided that the injured officer can show that his or her condition developed during the course of employment and that the injury was caused by specific incidents which occurred in the performance of his or her duty, the injury will be deemed work-related and he or she will be eligible for § 111F benefits. Hayes v. Revere, 24 Mass. App. Ct. 671 (1987). Where one cannot show both of these factors exist, however, one will not be deemed to have a "work-related injury."

In denying recovery under § 111F to a police officer whose heart condition was aggravated during a high speed chase, the Court of Appeals in Hayes held that: "[i]f the plaintiff's condition had developed gradually while he was a police officer, his disease might be found to be work related ... Here, however, the evidence shows that the plaintiff's disease is not work related and that his condition existed at the time he became a member of the police force . . . His heart disease is not a work-related compensable injury." Id. at 678-679. Thus key to a successful claim will be proof that the Officer developed the condition after employment and that the condition did not pre-exist employment as a police officer.

In Willis v. Board of Selectmen of Easton, 405 Mass. 159 (1989) Willis had been employed as a fire fighter for the town since May, 1968. On November 7, 1983, Willis changed a tire on a fire truck and felt a pull, a sharp pain, in his lower back. Willis did not file any injury reports or seek medical attention at that time and continued to work regular shifts. On December 26, 1983, Willis drove to Maine for a one week vacation when he began to experience pain in his back. On December 30, 1983, he went to the hospital and called in sick on January 2, 1984, the day he was scheduled to return to work after his vacation. His absence from work was charged to his sick leave. After consulting with his doctor, on January 9, 1984, Willis filed an incident report relating his back condition to the November 7, 1994 incident while changing the flat tire. The chief and the town administrator refused to place Willis on "injured on duty" status and Willis filed suit.

In awarding Willis the § 111F benefits, the judge in the trial court relied upon Willis' doctor's conclusion that the preexisting back problems had been caused by conditions at work. The Supreme Judicial Court affirmed his recovery of benefits under §111F because his degenerative spinal disc disease was "probably related to his job activities over the years" to collect benefits under § 111F. The Court held that "Although [the plaintiff] does have degenerative back disease, there was ample evidence for the judge to conclude that his back injury aggravated that condition. An employee may recover even if his or her injury is partially due to the employee's own weakness or vulnerability." 405 Mass. at 166. This was true even though the condition had "probably existed for a number of years." Id.

Similarly, in Blair, the Court of Appeals held that a police officer was eligible for § 111F benefits after suffering "severely elevated blood pressure brought on by police work." Blair v. Board of Selectmen of Brookline, 24 Mass. App. Ct. 261, 264 (1987). The Blair court, in so holding, stated that "[i]f a condition or incident of work aggravates a preexisting health problem, the employee has suffered a 'personal injury' and may recover from the employer for his entire disability." Id. quoting Zerofski's Case, 385 Mass. at 594-595. However it still seems critical to a successful claim for §111F benefits that the officer be able to point to an incident or a number of incidents which contributed to the causing or aggravating the disabling condition. Alternatively an officer may make a successful claim if he can point to an identifiable condition of his employment that is not common and necessary to all or a great many occupations. For example numerous physical altercations and falls might be such an uncommon condition as opposed to sitting for long periods which is common to other occupations.

In addition to collecting wages under G.L. Chapter 41, Section 111F wage benefits, a disabled police officer has legal recourse against the person or entity whose negligence caused the situation which aggravated his condition and led to his disability. Massachusetts Courts have consistently held that "[i]f [an] injury causes or contributes to cause the development of a preexisting disease, the person liable for the injury is liable also for the resulting aggravation. The wrongdoer may be held responsible for the harmful results of the combined effects of his wrongful act and the disease." Wallace v. Ludwig, 292 Mass. 251, 256 (1935). See also McGrath v. G&P Thread Corp., 353 Mass. 60 (1967); Pierce v. Nawn, 5 Mass. App. Ct. 224 (1977); Varelakis v. Etterman, 4 Mass. App. Ct. 767 (1976). Thus for example, consider an officer who suffers from heart disease which began after employment. In responding to a domestic dispute he is shoved into a wall and suffers a disabling heart attack. This Officer can press a successful claim for Section 111F wage benefits and pursue the persons responsible for his resulting heart attack.

Claims for Section 111F benefits should be carefully prepared in coordination with the appropriate medical experts. The road to success is often filled with delay as the process is typically handled administratively through a provision in the City or Town's collective bargaining agreement. There is legal precedent for at times bypassing grievance and arbitration procedures in collective bargaining agreements and going directly to Court.

In any event, as with all claims there are no guarantees. Many police injury cases involve sophisticated legal issues, problems of proof, technical insurance policy coverage disputes and issues which arise under Massachusetts General Laws ch. 41, § 100 and § 111F. I handle third party injury cases on a contingent fee basis where the injured officer need only pay for legal services if I successfully collect money on the claim. The fee is typically one third of the money collected and if I fail to collect money for the injured officer, the officer will owe nothing for legal services, except in some cases for out of pocket expenses. I am also available to officers and their unions with respect to contested §111F claims on both contingency fee basis and hourly rates. As a courtesy, I am available by telephone to answer all questions which MPA members may have regarding anything covered by this article or related topics.

This article refers only to G.L. c. 41, § 111F wage benefits. Wherever these benefits are available as discussed later on, so should medical expense benefits be available under G.L. c. 41, §100

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