by Lonnie Burton

On January 21, 2008, prison guard Mark Marchand intervened to protect a fellow employee in an altercation with a prisoner. As a result, Marchand suffered an unspecified knee injury and began to receive workers' compensation benefits when he was forced to miss work. Marchand also received what is called "assault pay" from the Massachusetts Department of Corrections (MDOC), pursuant to Massachusetts law.

However, over 2 1/2 years later, on November 19, 2010, the MDOC acting commissioner determined that Marchand was medically unfit for duty and terminated his employment on that date. Although Marchand continued received workers' compensation benefits through 2013, the MDOC stopped paying assault benefits as of the date of his termination.

Marchand then filed suit, seeking a declaration that under Massachusetts law he was entitled to receive assault pay as long as he was receiving workers' compensation benefits. A superior court judge agreed, and held Marchand was entitled to retroactive assault pay. An appellate court affirmed the judgment, and the Massachusetts Supreme Judicial Court accepted the MDOC's application for review.

On August 11, 2016, the high court reversed the lower courts and determined that Marchand was no longer entitled to receive assault pay after his employment with MDOC ended. The court essentially held that assault pay was intended to be a substitute for the use of accrued sick leave, an option that is available only as long as one remains employed.

"The statute essentially provides an added benefit to employees 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 fully pay" the court wrote. Because sick leave is a benefit only provided to an employee, "it reasonably follows that when an employee separates from employment, the assault pay benefit, connected, as it is, to sick leave, ceases."

The Supreme Judicial Court held that the MDOC properly stopped paying Marchand assault pay benefits the day his employment ended, reversed the trial court, and remanded the case with instructions to enter summary judgment in favor of MDOC. See Marchand v. Massachusetts Department of Corrections, No. SJC-11949 (S. Ct. Ma.), August 11, 2016.

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