‘Assault Pay’ Ends With Termination

On January 21, 2008, while working for the Massachusetts Department of Correction, 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 as well as an enhanced benefit known as “assault pay.” Eventually, the Department determined that Marchand was medically unfit for duty and separated him from employment. 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.

Under Massachusetts law, a state employee injured in the course of employment is entitled to normal workers’ compensation benefits, which are in an amount less than the employee’s normal wages. The law provides a means for the employee to continue to receive full pay while absent from work as a result of the injury. Generally, the injured employee may use accrued sick leave to receive full pay.

The “assault pay” portion of the statute comes into play when the employee is injured as a result of an act of violence by a patient or prisoner in his custody. In those circumstances, 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 leave to supplement normal workers’ compensation benefits.

Marchand filed a court challenge to the Department’s decision to terminate his assault pay. Years later, the Supreme Judicial Court of Massachusetts upheld the Department’s decision.

The Court found that the assault pay statute was a “special provision” that created an exception to the balance of the workers’ compensation law: “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 assault pay. The Department properly stopped paying Marchand assault pay benefits as of the date of his separation from employment.”

Marchand v. Department of Correction, 2016 WL 4218483 (Sup. Jud. Ct. Mass. 2016).