24 Mass. App. Ct. 261 | Mass. App. Ct. | 1987
There is no dispute that the plaintiff, a twelve-year veteran of the Brookline police force as of the time of this controversy, has suffered from hypertension since 1980. On August 23, 1985, while participating in the arrest of a larceny suspect at a local supermarket, he experienced the symptoms of his condition (terrible headache, the sensation that his heart was racing, and the feeling of severe pressure in his hands, legs, and feet), and he went directly from the supermarket to his doctor’s office. After examining the plaintiff,
I. The Facts.
Our review of the testimonial and documentary evidence shows ample support for the judge’s findings of fact, which leave no room for doubt that he accepted the evidence offered by the plaintiff’s treating physician of some six years. We, therefore, recite the facts as found by the judge and as relevant to the main issue before us: whether the plaintiff sustained an “injury” in the performance of his duties as that term is used in § 11 IF.
When the plaintiff was first seen by his physician in October, 1980, she diagnosed him as suffering from hypertension. She has been treating him since that time for that condition, pre
When the plaintiff was seen by his physician immediately following the event of August 23, his blood pressure was “uncontrolled” and there was blood in his urine. According to his physician, in the case of a person of the plaintiff’s age (mid-thirties), suffering from hypertension, the presence of blood in the urine could be indicative of ruptured capillaries in the kidneys. If this were so, it could mean that he also had ruptured capillaries in his brain. The physician testified that, throughout his years of treatment for hypertension, the plaintiff had demonstrated a pattern that, whenever he was away from work, his blood pressure would be within a “more reasonable . . . sometimes very normal range.” When his blood pressure was monitored “during time of his working,” it was “more elevated.”
Based upon various tests that the physician had performed upon the plaintiff, she had ruled out “organic causes” for his “uncontrolled hypertension.” It was her medical opinion that “stress has been a very important, provocative feature of . . . [the plaintiff’s] pattern of hypertension.” His blood pressure can “erratically or randomly become elevated,” and he is “at a serious risk” of suffering a “stroke, cardiovascular disease and heart attack.” She concluded that the plaintiff is “totally disabled from performing his duties as a police officer.”
II. The Injury.
In determining whether the plaintiff is entitled to sick-leave pay under § 111F, we are guided by cases decided under the
The fact that the incidents to which the plaintiff points as being the cause of his hypertension can be characterized as normal and routine events in police work does not render his injury noncompensable under the “wear and tear” doctrine. “To be compensable, the harm must arise either from a specific incident or series of incidents at work, or from an identifiable condition that is not common and necessary to all or a great many occupations. The injury need not be unique to the trade, and need not, of course, result from the fault of the employer. But it must, in the sense we have described, be identified with the employment” (footnotes omitted), Zerofski’s Case, 385 Mass. 590, 594-595 (1982). On the facts as found by the judge, the plaintiff’s injury falls within the scope of § 11 IF. The hurt here is severely elevated blood pressure brought on by police work. An injury, for purposes of the statute, need not be traumatic in origin. “If 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.” Zerofski’s Case, 385 Mass. at 593. See also Brightman’s Case, 220 Mass. 17, 20 (1914); Donlan’s Case, 317 Mass. 291, 293-294 (1944); Brzozowski’s Case, 328 Mass. 113, 115-116 (1951).
The defendants also contend that the plaintiff is precluded from receiving § 11 IF sick-leave pay by reason of our holding in Vaughan v. Auditor of Watertown, 19 Mass. App. Ct. 244 (1985). In that case the officer “could not identify a specific occurrence or series of occurrences in line of duty as giving rise
We agree with the plaintiff that c. 32, § 94, has never been a consideration in this case. There is nothing in § 94 or in Vaughan, supra, which suggests, even slightly, that § 111F sick-leave pay is unavailable to an officer whose absence from work is attributable to hypertension sustained in the performance of duty. It is merely the benefit of the § 94 presumption that is unavailable to the officer. Here, however, the plaintiff did not rely upon the statutory presumption in presenting his claim. Rather, he offered evidence which identified specific events in the performance of his duties as giving rise to his hypertension. In concluding that the plaintiff was entitled to sick-leave pay under § 111F, the judge made no mention of c. 32, § 94, but instead expressly relied upon those occurrences identified by the plaintiff and supported by the evidence. We see no error.
III. Termination of § 11 IF Benefits.
On May 17, 1986, the judge amended the judgment pursuant to an order of a single justice of this court for reasons not here pertinent. As amended, the judgment provides for the dollar amount of compensation due the plaintiff for the period between August 23, 1985, up to May 17, 1986, and the method by which his compensation is to be computed from that date up to the time the plaintiff “is retired and/or pensioned or . . . deemed to have recovered.”
When the plaintiff filed his brief, he included various documents concerning his retirement. He argues that under G. L. c. 32, § 21(1 )(d), his retirement is not effective until it is approved by the commissioner, here September 16, 1986.
The parties never requested leave of this court, while the appeal was pending, to present to the trial judge a motion to amend the judgment or otherwise bring before him the issue of the effective date of the plaintiff’s retirement. It does not appear that the documents attached to the parties’ briefs were ever presented to the trial judge, and they are not properly before us. See Mass.R.A.P. 8(e), as appearing in 378 Mass. 934 (1979). In the manner and form presented to us, we cannot even determine whether the issue involves a question of law that lends itself to decision without first ascertaining certain facts. We, therefore, leave it to the parties to raise the issue on the remand of this matter for computation of the amount of compensation due the plaintiff.
IV. Conclusion.
The plaintiff’s request for fees and double costs pursuant to Mass.R.A.P. 25, as amended, 378 Mass. 925 (1979), is denied. The matter is remanded to the Superior Court where the judgment as amended through May 17, 1986, is to be further amended so as to declare the dollar amount of compensation due and owing the plaintiff under G. L. c. 41, § 11 IF, from August 23,1985, up to the date of the plaintiff’s accidental disability retirement, less any credit due the defendants for
So ordered.
“Whenever 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 ... he shall be granted leave without loss of pay for the period of such incapacity.”
In their principal brief, which is couched in conclusory terms, the defendants do not dispute the judge’s findings and argue that, on the facts found, the plaintiff did not sustain an injury within the comprehension of § 111F. After the plaintiff’s brief was filed, the defendants presented a reply brief in which they suggest error in the findings. The plaintiff has objected to any consideration of the reply brief by us. See Commissioner of Rev. v. Plymouth Home Natl. Bank, 394 Mass. 66, 67 n.3 (1985); Travenol Labs., Inc. v. Zotal, Ltd., 394 Mass. 95, 97 (1985); Kelley v. Rossi, 395 Mass. 659, 665 n.6 (1985). We conclude that the reply brief raises no new issues; rather, it more properly presents and develops the argument stated in the principal brief.