274 Mass. 300 | Mass. | 1931
This is a petition for a writ of mandamus, brought by Simon Goldberg, who was enrolled in the classified list in the service of the Commonwealth. He was duly certified and regularly appointed to the position of painter at the Boston City Hospital. On February 3, 1925, he was taken ill as the result of lead poisoning, said illness arising out of and in the course of his employment. As a consequence thereof he was placed under workmen’s compensation, as provided by law for cases of sickness and injuries of this nature, and received compensation from the city of Boston until May 19, 1929, when he was pronounced cured and able to return to work. On May 20, 1929, he resumed work in his former position and continued to work until May 23, 1929. On the last named date he was suspended without notice and hearing. He was immediately placed again under workmen’s compensation, which continued until May 6, 1930. On that date the total payments to him had amounted to $4,000, the maximum payment allowed by law.
On May 1 and on June 25, 1930, he was examined by an executive medical assistant of the Boston City Hospital and on each occasion given a card setting forth that he was able to return to work. He was denied employment on both of these last named dates without any reason being given. On May 22, 1929, the superintendent of the Boston City Hospital wrote the department of civil service and registration a letter which reads: “Mr. Simon Goldberg, one of our painters, has been on the workmen’s compensation roll since May, 1925 because of lead poisoning. He now wishes to come back, although I feel that if he starts painting again, he will soon break
On August 26, 1930, Goldberg was given a hearing in relation to the entire case at the office of the commissioner of civil service and registration. On August 27, 1930, counsel for Goldberg received a letter from the department of civil service and registration stating that the reinstatement of the petitioner to the Boston City Hospital could not be allowed and Goldberg immediately appealed to the “ board ” of the department of civil service. On September 16, 1930, a hearing was had before the “ board,” and on September 24, 1930, Goldberg was notified by the executive secretary of the “ board ” that the “ board ” had voted “ to sustain the action of Commissioner Goodwin in not allowing his reinstatement to the Boston City Hospital.”
The petition for mandamus further states that the only reason why the petitioner was refused employment at the Boston City Hospital was because of the action of the commissioner in failing to permit the superintendent (Dr. John J. Dowling) to employ him; that there was work to be done at said hospital by a painter at the time; that the petitioner was ready and able to go back to his employment; that the petitioner has never been separated from the service within the meaning of the civil service rules and regulations; and prays that a writ of mandamus may issue compelling the commissioner to authorize the employment of the petitioner as a painter at the Boston City Hospital.
The respondent admits the allegations of fact made in the petition and for answer says the following civil service rules have been adopted: “Rule 23, § 2: 'Whenever a person in the Official Service is unable to work on account of sickness or his position is abolished or made
The case came on for hearing before a single justice of this court. At the hearing, subject to the exceptions of the petitioner, the single justice refused to rule (1) “ That your petitioner was not separated from the service within
The petitioner does not contend that the quoted rules were not duly adopted, nor does he question their validity, but says that he was never in a position to request under Rule 23, part 2, that his name be placed on the special list, because no “ date of separation ” was ever definitely fixed, the fact that there was a separation being taken for granted and intimated in the exchange of letters referred to in the petition. He also contends that under Rule 40, supra, as it existed prior to March 1, 1930, and under Rule 40, supra, as amended on March 1, 1930, the period within which the employing officer may reinstate a laborer who has been separated from the service reasonably must follow a definite date. Assuming the position taken by the petitioner is sound in law, we think the date of separation was definitely fixed when the petitioner, after three days’ resumption of the work which he had been doing prior to his illness on February 3, 1925, was suspended from work on May 23, 1929, and was immediately placed again under workmen’s compensation. The petitioner in his brief concedes that he was not entitled
Exceptions overruled.