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Appeals Court of Massachusetts.



Decided: September 17, 2021

By the Court (Ditkoff, Singh & Englander, JJ.1)


This case presents questions regarding when a former call firefighter is entitled to disability benefits under G. L. c. 32, § 85H 1/2, for injuries sustained in the line of duty. The plaintiff, Michael Sciascia, formerly a call firefighter in the town of Millbury (town), was injured before the town “accept[ed]” the provisions of § 85H 1/2, but did not make a claim for benefits under § 85H 1/2 until after the town had accepted those provisions. A Superior Court judge concluded that the town was required to pay § 85H 1/2 benefits, reasoning that Sciascia's injury did not have to postdate the town's acceptance, and that Sciascia did not become eligible for such benefits until the town's insurance payable to Sciascia had been exhausted (which occurred after the town had accepted the statute).

The question presented requires us to construe two related statutes: § 85H 1/2, and G. L. c. 32, § 85H. Section 85H was enacted some forty years before § 85H 1/2 and similarly provides benefits for injured call firefighters, but the benefits under § 85H for firefighters in Sciascia's circumstances are much lower than under § 85H 1/2. Because we agree with the town that Sciascia's eligibility for benefits under § 85H 1/2 must be determined as of the date he was injured, we vacate the judgment awarding benefits under that statute. Sciascia is entitled to benefits under § 85H, however, and we accordingly remand for calculation of the appropriate award.

Background. 1. Facts. The parties stipulated to the relevant facts, as follows. The town has no full-time permanent fire department. It relies instead on “call” firefighters, who are on call to respond to emergencies but also have other jobs. See G. L. c. 32, §§ 85H & 85H 1/2. In 2009, the plaintiff was a call firefighter in the town. He was also employed at the William Reisner Corporation (“Reisner Steel”), a scrap metal yard, where he operated heavy machinery and performed related manual labor.

On January 2, 2009, the plaintiff responded to a fire at a restaurant in the town. While fighting that fire, the plaintiff injured his shoulder. The injury left him unable to perform the essential functions of a firefighter and also those of his regular position at Reisner Steel. Thereafter, for a five-year period ending in 2014, the plaintiff received benefits under an insurance policy purchased by the town that provided coverage for injured firefighters.

Separately from any insurance the town had purchased, §§ 85H and 85H 1/2 also address disability benefits for call firefighters injured in the line of duty. Section 85H, enacted in 1952, provides that a disabled firefighter from a town such as Millbury, which has no permanent fire force, is to receive $3,000 per year. In 1995, the Legislature enacted § 85H 1/2. Relevant here, § 85H 1/2 provides that a disabled call firefighter in any town “which accepts the provisions of this section” will receive a “minimum annual allowance equal to the average annual salary of a first-year, regular firefighter ․ in the local area,” if injured in the line of duty.

As indicated, Sciascia was injured in 2009. The town accepted the provisions of § 85H 1/2 in 2011. Insurance payments to Sciascia ended in 2014, and in 2014, Sciascia made a claim for benefits under § 85H 1/2. The town denied the claim.

2. Procedural history. In 2015, the plaintiff filed a complaint against the town and the individual members of its board of selectmen. The complaint stated in its opening paragraph that it was based upon, among other things, violations of G. L. c. 32, §§ 85H and 85H 1/2. A judge dismissed the members of the board of selectmen and all counts of the complaint, save one that bore the caption “G. L. c. 32, § 85H 1/2.”

In April of 2017, the plaintiff filed a motion for leave to amend his complaint. One of the two counts of the amended complaint was explicitly based upon both § 85H and § 85H 1/2. A judge allowed the motion to amend.2 Ultimately the claim under §§ 85H and 85H 1/2 was the only claim remaining for trial.

The town then filed pretrial motions seeking, among other things, to prevent Sciascia from recovering any damages under § 85H and to be allowed to introduce evidence that the plaintiff is currently employed part time as a bus driver. A judge denied those motions. Thereafter, the parties agreed to submit the case for decision on an agreed statement of facts. The judge found in the plaintiff's favor and awarded damages pursuant to § 85H 1/2. The town appeals.

Discussion. The town's principal argument is that the plaintiff does not have a claim under § 85H 1/2 because he was injured before the town accepted that statute. As to § 85H, the town argues that Sciascia is not entitled to an award under that statute either, because Sciascia failed to timely amend his complaint to include such a claim, and because in any event § 85H does not apply to towns covered by § 85H 1/2. Finally, the town argues that it is entitled to an offset (apparently, under either statute) based upon the wages the plaintiff now earns as a bus driver.3

1. Entitlement to benefits under G. L. c. 32. We first address whether Sciascia was entitled to benefits under § 85H 1/2, where the town had not accepted that statute as of the date Sciascia was injured. The issue is one of law, which we review de novo. See Concord v. Water Dep't of Littleton, 487 Mass. 56, 60 (2021). Sections 85H 1/2 and 85H are two of the several statutes that provide statutory benefits to firefighters incapacitated due to injuries suffered while on duty. See also G. L. c. 41, § 111F (covering lost firefighting wages). These statutes provide benefits akin to workers’ compensation benefits, which generally are not available to firefighters and police officers. See G. L. c. 152, § 69 (excluding members of police and fire force from compensation under c. 152). See also Jones v. Wayland, 380 Mass. 110, 119 (1980); Becker v. Newbury, 72 Mass. App. Ct. 807, 809-810 (2008); Politano v. Selectmen of Nahant, 12 Mass. App. Ct. 738, 743 (1981).

To properly construe § 85H 1/2, we need to begin with its predecessor, § 85H. Section 85H provides, in relevant part:

“If a call fire fighter ․ is disabled because of injury or incapacity sustained in the performance of the person's duty through no fault of the person and is thereby unable to perform the usual duties of the person's regular occupation at the time the injury or incapacity was incurred, the person shall receive from the city or town for the period of the injury or incapacity the amount of compensation payable to a permanent member of the police or fire force thereof, as the case may be, for the first year of service therein or, if there are no regular or permanent members of the police or fire force thereof, at the rate of $3000 per annum” (emphasis added).

Section 85H fills a compensation gap for call firefighters injured in the line of duty, given that benefits under G. L. c. 41, § 111F cover only lost firefighting wages. Section 85H in addition provides compensation for any lost wages from a “regular occupation” outside of call firefighter work. Jones, 380 Mass. at 119. By its plain language, § 85H provides compensation to all call firefighters in the Commonwealth without limitation. The Supreme Judicial Court has interpreted the statute's benefits provision as “mandatory.” Jones, 380 Mass. at 121.

“The policy behind such a compensation plan is clear: those individuals willing to submit themselves to the dangers inherent in ․ fire work while still looking to another job as a substantial source of support should not be made to suffer economically in the event that they are rendered incapable of performing this other employment due to an injury sustained while serving as a public safety officer.” Id. at 119.

In the 1990s, the Legislature recognized that § 85H no longer provided adequate compensation for those disabled call firefighters who worked in municipalities with no regular or permanent firefighters. In such municipalities (approximately one hundred at that time) a call firefighter's disability benefits under § 85H were limited to “$3000 per annum.” G. L. c. 32, § 85H. To address this concern the Legislature enacted § 85H 1/2. It provides, in relevant part:

“Notwithstanding the provisions of section eighty-five H or any other general or special law to the contrary, in any city, town or fire district which accepts the provisions of this section and in which there are no permanent members of a ․ fire department, ․ [w]henever a call firefighter ․ is disabled because of injury or incapacity sustained in the performance of duty, ․ and is thereby unable to perform the usual duties of his occupation at the time such injury or incapacity was incurred, such ․ firefighter shall receive from the city or town, for the period of such injury or incapacity, a minimum annual allowance equal to the average annual salary of a first-year, regular firefighter ․ in the local area, such average to be determined by a survey of three surrounding towns.”

Notably, unlike § 85H, which provides mandatory benefits, § 85H 1/2 applies only “in any city, town or fire district which accepts [its] provisions.” The question presented here is whether the Legislature intended § 85H 1/2 to apply to a call firefighter who is injured before municipal acceptance of the statute, so long as the firefighter's claim for benefits post-dates municipal acceptance.

a. G. L. c. 32, § 85H 1/2. “Our primary duty in interpreting a statute is ‘to effectuate the intent of the Legislature in enacting it.’ ” Spencer v. Civil Serv. Comm'n, 479 Mass. 210, 216 (2018), quoting Campatelli v. Chief Justice of the Trial Court, 468 Mass. 455, 464 (2014). “Ordinarily, where the language of a statute is plain and unambiguous, it is conclusive as to legislative intent.” Abuzahra v. Cambridge, 486 Mass. 818, 822 (2021), quoting Ryan v. Mary Ann Morse Healthcare Corp., 483 Mass. 612, 620 (2019). “[W]here the statutory language is ambiguous or unclear, ‘we consider the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, [such that] the purpose of its framers may be effectuated.’ ” Abuzahra, supra, quoting Spencer, supra at 217. See Casseus v. Eastern Bus Co., 478 Mass. 786, 797 (2018) (statutory history is relevant to its interpretation). See also Ralph vs. Civil Serv. Comm'n, Mass. App. Ct., No. 20-P-977, slip op. at 9-10 (September 8, 2021).

Thus, we begin with the relevant language of the statute: “in any city, town or fire district which accepts the provisions of this section.” G. L. c. 32, § 85H 1/2. This language is commonly referred to as “local option” language. See, e.g., MacLaurin v. Holyoke, 475 Mass. 231, 235 & n.15 (2016). Consistent with the plain language regarding local acceptance, “a local-option statute becomes effective in a city [or] town only when the municipality votes to adopt its provisions.” Yaretsky v. Attleboro, 424 Mass. 315, 316-317 (1997). See Connors v. Boston, 430 Mass. 31, 37 (1999) (local option statute does “not take effect until a governmental unit accepts” it). One purpose of local option language is to give municipalities control over their own affairs and, in particular, their own budgets. See Cambridge v. Attorney Gen., 410 Mass. 165, 167-168, 172 (1991). Thus, the plain language of § 85H 1/2 establishes that it did not take effect in the town until its acceptance in 2011 -- in other words, the town had no obligation under § 85H 1/2 prior to that date.

The statutory language “in any town ․ which accepts” does not, however, answer the question whether a firefighter injured before a municipality accepts § 85H 1/2 may nevertheless apply for and receive benefits after municipal acceptance. On the one hand, the conditional language naturally suggests that the town's obligation arises only for events that occur after acceptance. On the other hand, there is also a plain language argument that upon acceptance, the town is required to pay any injured firefighter, regardless of when they were injured.

Because the statutory language is not conclusive, we move on to look at the structure and purpose of § 85H 1/2. Before the enactment of § 85H 1/2, call firefighters were already eligible for mandatory disability benefits under § 85H. Section 85H 1/2 was plainly intended to increase available benefits for call firefighters in cities or towns without permanent firefighters, but in enacting the statute the Legislature was careful not to impose an unfunded mandate unilaterally. Indeed, the history of § 85H 1/2 demonstrates that local option language was essential to the statute's enactment; the Governor vetoed an earlier version of the legislation because portions of it were not drafted so as to allow individual municipalities to opt in to the statute's provisions. See Letter from Governor William F. Weld to the House of Representatives (January 13, 1995).

In light of this structure and purpose, we conclude that § 85H 1/2 imposes obligations only with respect to firefighters injured or incapacitated after it has been accepted by a municipality. While the purpose of § 85H 1/2 is to provide a structure for improving the disability benefits available to certain types of police and firefighters, the inclusion of the local option meant that municipalities would -- at least at the point of acceptance -- have control over their fiscal responsibilities. A contrary construction would expose municipalities accepting § 85H 1/2 to liabilities (perhaps unexpected or even unknown) for injuries that occurred years or even decades before. Indeed, such an exposure would arguably include the obligation to pay “for the period of such injury or incapacity,” going back in time indefinitely.4 The better construction is that an accepting municipality is liable only for injury or incapacity occurring after acceptance.

Determining eligibility for § 85H 1/2 benefits as of the date of injury or incapacity is also consistent with how eligibility for benefits is determined in workers’ compensation cases. In that context, an injured employee receives benefits under the workers’ compensation policy in effect on the date he was injured. See Bolduc's Case, 84 Mass. App. Ct. 583, 586 (2013), citing Evan's Case, 299 Mass. 435, 436 (1938). See also Ware v. Hardwick, 67 Mass. App. Ct. 325, 329-330 (2006) (where plaintiff worked for two municipalities, municipal liability for § 85H benefits depended on where plaintiff was working at time of injury or incapacity). Interpreting § 85H 1/2 so that it provides benefits based upon the date of injury or incapacity, as with workers’ compensation benefits, is consistent with the Legislature's intent that § 85H 1/2 act as a substitute for workers’ compensation.

Finally, because we conclude that the town had no obligation under § 85H 1/2 for injuries sustained before acceptance, we reject Sciascia's argument that he could nevertheless become eligible because the town's insurance benefits for him did not expire until after the town's acceptance. The availability, or unavailability, of insurance benefits simply does not bear on the issue we have decided. Where, as here, a firefighter is injured before municipal acceptance of § 85H 1/2, that firefighter is not eligible for § 85H 1/2 benefits regardless of what subsequently may transpire.

b. G. L. c. 32, § 85H. The town also argues that Sciascia is not eligible for benefits under § 85H because “§ 85H 1/2 supersedes § 85H” in municipalities that do not have any “permanent fire department members.”5 In other words, the town's position is that the Legislature intended to repeal § 85H for municipalities with no permanent firefighters, leaving it to each municipality to decide whether to accept § 85H 1/2, or to have no obligation at all.

The town's argument has no grounding in the statutory language, or the purposes of either § 85H or § 85H 1/2. As discussed, the Legislature's purpose in adopting both § 85H and § 85H 1/2 was to provide adequate compensation for call firefighters injured in the line of duty. By suggesting that § 85H 1/2 supplants § 85H, the town posits the anomalous result that the enactment of legislation designed to provide enhanced benefits to call firefighters could strip benefits away from some members of that group, where their towns have not accepted § 85H 1/2. We decline the suggestion. See George v. National Water Main Cleaning Co., 477 Mass. 371, 378 (2017) (“statute is not to be deemed to repeal or supersede a prior statute in whole or in part in the absence of express words to that effect or of clear implication” [citations omitted]). Section 85H plainly applies to call firefighters in towns that have not accepted the provisions of § 85H 1/2 (or had not yet accepted it, at the time of injury), and the plaintiff is eligible for benefits under § 85H. Indeed, the town clearly should have paid the plaintiff § 85H benefits from the date he became eligible.

3. Offset for other income. Finally, we reject the town's argument that the judge erred in denying its request to introduce evidence that the plaintiff is currently employed part time as a bus driver. The town contends that the plaintiff's current employment is relevant to establish the town's entitlement to an offset against any damages. Neither § 85H, nor § 85H 1/2, have any provision permitting a municipality to reduce its payment to a firefighter who -- after suffering an injury on duty -- has been able to find another job that he or she can still perform. Had the Legislature intended to allow for that type of offset, it would have included language to that effect. Once again, “[w]e will not ‘read into the statute a provision which the Legislature did not see fit to put there.’ ” Chin v. Merriot, 470 Mass. 527, 537 (2015), quoting Commissioner of Correction v. Superior Court Dep't of the Trial Court for the County of Worcester, 446 Mass. 123, 126 (2006).

Section 85H bases eligibility for benefits on a call firefighter's inability “to perform the usual duties of the person's regular occupation.” G. L. c. 32, § 85H. See G. L. c. 32, § 85H 1/2 (same). The town stipulated that the plaintiff is unable to return to operating heavy machinery -- his regular occupation at the time of his injury. He thus is eligible for § 85H benefits without any offset. See also Jones, 380 Mass. at 119 n.13 (“Rather than calculating the precise amount of income lost due to an officer's inability to perform such other work on a case by case basis, the Legislature had chosen the rough but equitable solution of determining § 85H compensation benefit payments by reference to a fixed amount”).

So much of the judgment that orders the town to pay the plaintiff benefits pursuant to G. L. c. 32, § 85H 1/2 is vacated. The judgment shall be modified to order the town to pay the plaintiff benefits pursuant to G. L. c. 32, § 85H. In all other respects, the judgment is affirmed. The matter is remanded for further proceedings consistent with this decision.

So ordered.

vacated in part; affirmed in part and remanded.


2.   The other count sought payment of the plaintiff's medical bills pursuant to G. L. c. 41, § 100, which the town ultimately agreed to pay. Judgment entered on this count and neither party raises an issue under § 100 on appeal.

3.   We do not reach the town's other arguments because they do not impact our analysis.

4.   We note that the contrary construction accordingly could deter municipalities from accepting § 85H 1/2, because of a need or desire to avoid such preexisting liabilities.

5.   The town also argues that the plaintiff's delay in seeking leave to amend the complaint to specifically plead a count under § 85H is fatal to the claim. We disagree. The plaintiff's original complaint specifically referenced § 85H as a basis of the plaintiff's claims, although not in the heading of a particular count. There was no unfair surprise, and no error in the judge's decision to allow the motion to amend the complaint. See Padmanabhan v. Cambridge, 99 Mass. App. Ct. 332, 342 (2021) (purpose of pleading requirements is “to give fair notice of the claims ․ of the parties” [citation omitted]). See also Ware, 67 Mass. App. Ct. at 331 (“there is no requirement [to] make a formal claim for benefits under G. L. c. 32, § 85H, before commencing an action to enforce it”).

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