Ballin Law


Cruiser door removed with saw
Trapped inside the cruiser, Officer Avery wakes up to the sounds of firefighters using a reciprocating saw to detach the mangled driver door.

Erica DiMaio suddenly veers over double yellow lines on Main Street. Three eyewitnesses watch in horror as Ms. DiMaio violently crashes head on into a police cruiser operated by Officer Avery.

The Fire Department is already on scene by the time Officer Avery comes to. He wakes up to the sounds of firefighters using a reciprocating saw to detach the mangled driver door from the cruiser. Freed from the cruiser, Officer Avery is taken by helicopter to the hospital where he would remain for over two weeks.

Officer Avery’s injuries were numerous: concussion, fractured left arm and leg, five fractured ribs, and multiple lacerations. The left arm fracture required three procedures, including a surgery to implant permanent hardware. His road to recovery included extensive therapy. Despite continuing symptoms in his arms and legs, Officer Avery worked diligently with his therapists to regain strength and motion. Just shy of nine months after the crash, Officer Avery was cleared for a return to work. Officer Avery surprised everyone. He pushed his doctors to clear his return long before many thought he would be medically able. Officer Avery’s doctors and therapists documented his dedicated efforts towards his own recovery as well as his desire to return to work.

We met Officer Avery while he was still in the hospital. He expressed his good fortune to have survived this horrendous crash. However, he stressed about how he would support his family. As a ‘special’ officer, Officer Avery works part time for his municipality. Not only was he too injured to work as a police officer, he could not resume his regular occupation.

We decided to feature Officer Avery’s case not just for the monetary result, but also to inform special, reserve and part time officers of certain injury-on-duty benefits, which may be available to them. Like many police officers and firefighters working on a ‘special’, reserve or part time designation, Officer Avery relied on a second, regular occupation to support his family.

Many special officers and part time officers are unaware that Massachusetts law provides protection for special officers like Mr. Avery who are unable to work their regular occupation because of an injury-on-duty. In most circumstances, M.G.L. Chapter 32 §85H affords compensation equivalent to the average weekly pay of a first-year public safety officer while the officer is unable to work their regular occupation because of the injured-on-duty. We have found several municipalities to be unaware of this provision. This municipality was no exception.

We worked with Officer Avery’s municipality to ensure these benefits were made available to Officer Avery for the entire period he was unable to work his regular occupation. These injury-on-duty benefits helped Officer Avery survive financially while he was out of work rehabbing from his injuries. As for Officer Avery’s injury claim against Ms. DiMaio, we secured a ‘policy limit’ settlement with her insurance company for $500,000 after holding steadfast in our refusal to accept anything less. And we did all this without ever filing a lawsuit.

If you are a reserve, special or part time officer injured-on-duty and cannot return to your regular occupation, like Officer Avery, you too may be able to make a claim for full and fair compensation and receive full injury-on-duty wage benefits while you recover from your injuries.

– Jared N. Ballin, Esq. & Steven M. Ballin, Esq.

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