Workers’ Compensation Cases

Joseph V. McDonough’s (dependent’s) Case. Suffolk. October 4, 2006. December 22, 2006. Present: Marshall., C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Workers’ Compensation Act, Decision of Industrial Accident Reviewing Board, Right to compensation, Dependency compensation. This court concluded that the surviving spouse of a decedent who had no actual wages at the date of eligibility for workers’ compensation, G. L. c. 152, § 35C, could nevertheless receive the minimum benefit under G. L. c. 152, § 31, where the wording of the second paragraph of § 31 was clear that no circumstance or condition would operate to deprive the surviving spouse of the minimum benefit. [81-84] Appeal from a decision of the Industrial Accident Reviewing Board. The Supreme Judicial Court granted an application for direct appellate review. Richard W. Jensen for the insurer. Franklin Lewenberg for the claimant. Sosman, J. In this appeal, we are called on to decide a question left open when we previously considered this case, McDonough’s Case, 440 Mass. 603, 608 n.6 (2003) (McDonough J), namely, whether a surviving spouse of a decedent who had no actual wages at the date of eligibility, G. L. c. 152, § 35C, could nevertheless receive the minimum benefit under G. L. c. 152, § 31. The insurer, Liberty Mutual Insurance Company (Liberty Mutual), appeals from the decision of the reviewing board (board) of the Department of Industrial Accidents awarding the minimum benefit to the claimant.* For the following reasons, we conclude that the claimant is entitled to the minimum § 31 benefit, and therefore, we affirm the decision of the board. 1. Background. Joseph McDonough began working for the Boston Edison Company in 1961 as a mechanic, primarily in its Massachusetts Avenue garage. He retired from that position in December, 1991, accepting a lump sum pension payment. In April, 1996, he was diagnosed with adenocarcinoma and asbestosis. He passed away the following month. His widow, the claimant Martha McDonough, sought benefits under G. L. c. 152, including medical expenses under §§ 13 and 30, burial expenses under § 33, and survivor’s benefits under § 31. After hearing, an administrative judge found that McDonough’s illness had been caused by exposure to asbestos fibers at his workplace, and that that exposure to asbestos occurred between the start of his employment in 1961 and December, 1978. (After December, 1978, testing conducted by the Occupational Safety and Health Administration found no asbestos fibers remaining in the garage.) As a result, McDonough’s date of injury for purposes of workers’ compensation was December, 1978. See McDonough I, supra at 605, citing Squillante’s Case, 389 Mass. 396, 397 (1983) (in case of latent injury, date of injury is date of last exposure). As of that date of injury, McDonough was married to and living with the claimant. Under § 35C, where five years or more have elapsed between the date of injury and the date on which the worker or survivor first became eligible for benefits, “the applicable benefits shall be those in effect on the first date of eligibility for benefits.” Here, that date of eligibility was May 10, 1996, the date of McDonough’s death. As of that date, McDonough and the claimant were still married and living together. The board awarded the claimant benefits under §§ 13, 30, 31, and 33. With respect to the calculation of benefits under § 31, the board resorted to 452 Code Mass. Regs. § 3.02(1) (1999), which provided that if the worker was not employed as of the date of eligibility, benefits should be calculated based on the worker’s earnings as of the last date of employment. Under § 31, the claimant was thus awarded two-thirds of McDonough’s average weekly wage as of the date he retired in 1991. Liberty Mutual appealed the award of benefits under § 31. In McDonough I, supra at 606, we held that because Mc-Donough had no weekly wage on the date of eligibility for benefits under § 31, the calculation resulted in no payment to the claimant — two-thirds of zero equals zero. To the extent that the regulation, 452 Code Mass. Regs. § 3.02(1), provided otherwise, we held that it was invalid as contrary to the statute. McDonough I, supra at 607-608. However, we remanded the case to the board to consider whether, notwithstanding the absence of a weekly wage on the date of eligibility, the claimant was entitled to the minimum payment described in § 31 (“in no instance shall said widow or widower, receive less than one hundred and ten dollars per week”). Id. at 608 n.6. On remand, the board concluded that the claimant was entitled to that minimum benefit. Liberty Mutual appealed to a single justice of the Appeals Court, who reported the case to the full panel of that court. We transferred the case from the Appeals Court on our own motion in order to consider whether the minimum benefit described in § 31 is available even when the average weekly wage at the time of eligibility is zero. We conclude that it is, and we affirm the board’s decision to that effect. 2. Discussion. When reviewing the board’s decision we give “due weight to the experience, technical competence, and specialized knowledge” of the agency. G. L. c. 30A, § 14 (7). We exercise de nova review of questions of statutory construction, however, and we must overturn agency decisions that are not consistent with governing law. See Atlanticare Med. Ctr. v. Commissioner of the Div. of Med. Assistance, 439 Mass. 1, 6 (2003); Plymouth v. Civil Serv. Comm’n, 426 Mass. 1, 5 (1997). In this case, we agree with the board’s interpretation of G. L. c. 152, § 31. The first paragraph of § 31 provides that “[i]f death results from the injury, the insurer shall pay the following dependents of the employee, . . . wholly dependent upon his or her earnings for support at the time of his or her injury, or at the time of his or her death.” Among the listed dependents are “the widow or widower, so long as he or she remains unmarried.” Id. Here, the claimant was married to and living with McDonough on the date of injury, December, 1978. There is no dispute that she was wholly dependent on his earnings at that time. As she was dependent on McDonough’s earnings at the time of his injury, the claimant qualifies under the first paragraph of § 31 to receive benefits, which are calculated according to the second paragraph of the same section. Liberty Mutual argues that because the claimant only became eligible for § 31 benefits upon McDonough’s death, her dependence on McDonough’s earnings at the time of his death is the only means by which she could qualify for § 31 benefits. We disagree. The first paragraph of the statute refers to those who are dependent on earnings of an employee at the time of death or at the time of injury. The claimant was dependent on McDonough’s earnings at the time of his injury, although not at the time of his death (because he no longer had any earnings). Nothing in G. L. c. 152, § 35C, or our interpretation of § 35C in McDonough I, supra, affects the qualifications set forth in the first paragraph of § 31. Rather, § 35C sets the date of the average weekly wage to be used for the calculation of benefits under the second paragraph of § 31. McDonough I, supra at 605-606. As the claimant satisfies the prerequisites under the first paragraph of that section, we move on to the second paragraph to determine what amount she is entitled to receive. The second paragraph of § 31 first provides for a benefit of two-thirds of the average weekly wage of the deceased employee. As explained in McDonough I, supra at 606, that calculation yields no benefits for the claimant, as McDonough had no earnings at the date of eligibility (his date of death). However, after prescribing the two-thirds average weekly wage as the amount of benefit to be paid, the second paragraph of § 31 sets forth a proviso that “in no instance shall said widow or widower, receive less than one hundred and ten dollars per week” (emphasis added). We interpret the words “in no instance” literally, meaning that no circumstance or condition will operate to deprive the surviving spouse of the minimum benefit. See Rudenauer v. Zafiropoulos, 445 Mass. 353, 358-359 (2005) (interpreting words “in no event” in statute of repose to foreclose possibility of any exception). Thus, the fact that McDonough had no earnings at the time of his death does not disqualify the claimant from receiving that minimum benefit. Liberty Mutual argues that to award minimum weekly compensation when the employee had no weekly wage at the time of eligibility would violate the limited wage replacement goals of the workers’ compensation act (act). See McDonough I, supra at 604; Letteney’s Case, 429 Mass. 280, 282 (1999); Ahmed’s Case, 278 Mass. 180, 183 (1932); Corriveau v. Home Ins. Co., 43 Mass. App. Ct. 924, 926 (1997). Although we have frequently recognized that the primary goal of the act is wage replacement, certain portions of the act serve other purposes beyond precise wage replacement. See, e.g., G. L. c. 152, § 28 (requiring double compensation when injury results from employer’s “serious and wilful misconduct”); G. L. c. 152, § 33 (compensation for burial expenses); G. L. c. 152, § 34A (providing minimum benefits for permanent and total incapacity); G. L. c. 152, § 36 (providing compensation for disfigurement regardless of incapacity); G. L. c. 152, § 36A (designating payments to nondependent relatives, or to special fund, if no dependents exist). As such, the mere fact that our interpretation does not equate with a strict wage replacement scheme does not require us to deviate from the plain language of § 31. The minimum payments described in § 31 are not altered by considering their place in a larger statutory scheme that has the over-all goal of wage replacement. Although this particular exception may be at odds with that over-all goal, the wording of § 31 itself is clear that nothing is to prevent a surviving spouse from receiving at least the minimum benefit. The board correctly interpreted § 31 to require minimum payments even when there was no weekly wage on the date of eligibility. We therefore affirm the decision of the reviewing board ordering the minimum weekly payment of § 31 benefits. So ordered. General Laws c. 152, § 31, provides, in pertinent part: “If death results from the injury, the insurer shall pay the following dependents of the employee, . . . wholly dependent upon his or her earnings for support at the time of his or her injury or at the time of his or her death, compensation as follows .... “To the widow or widower, so long as he or she remains unmarried, a weekly compensation equal to two-thirds of the average weekly wages of the deceased employee, but not more than the average weekly wage in the commonwealth . . .; provided, however, that in no instance shall said widow or widower, receive less than one hundred and ten dollars per week . . . .” Counsel for the claimant has filed a suggestion of death and moved that Mary A. Noonan, administratrix of the claimant’s estate, be substituted as the claimant in this matter. We take notice of the suggestion of death, and we allow the motion to substitute. We refer to the original claimant, Martha Mc-Donough, throughout this opinion. By comparison, Liberty Mutual Insurance Company (Liberty Mutual) has consistently argued that, at the time of McDonough’s death, the claimant was not “wholly dependent upon [McDonough’s] earnings for support,” G. L. c. 152, § 31, because McDonough had no “earnings” after his retirement in 1991. Section 32 of the workers’ compensation act, G. L. c. 152, § 32, contains a conclusive presumption that a wife is “wholly dependent for support upon a deceased employee” when she lives with him at the time of his death. Notwithstanding the fact that the § 32 presumption does not include any presumption with respect to dependence on “earnings” (but only presumes that the spouse is dependent “for support”), we previously stated that it applied to the claimant. McDonough’s Case, 440 Mass. 603, 605 n.2 (2003). In any event, Liberty Mutual has not contested that the claimant was “wholly dependent upon [McDonough’s] earnings for support” back in 1978, when his workplace injury occurred. Although there was no explicit finding on the point, the evidence adduced at the hearing was that the claimant was bom in 1929, and she dropped out of school in her sophomore year of high school. She worked in a bakery for nine years, ending her work there a few years after her marriage to McDonough in 1952. During her marriage, she raised at least two children, and she was unemployed at the time McDonough retired in 1991. There is no suggestion in this record that she held any gainful employment outside of the home during her marriage. The record certainly supports the inference that the claimant was “wholly dependent upon [McDonough’s] earnings for support” back in 1978, when McDonough was injured, and Liberty Mutual does not claim otherwise. We also note that, under G. L. c. 152, § 23, a spouse who claims any benefits under G. L. c. 152 loses the right to sue the employer for the wrongful death of the other spouse. See McLaughlin v. Stackpole Fibers Co., 403 Mass. 360, 361-362 (1988). According a surviving spouse with a payment of $5,720 per year is modest compensation for the loss of that right. The claimant has requested and is entitled to reasonable attorney’s fees and costs incurred in this appeal, pursuant to G. L. c. 152, §§ 12 (3) and 12A. See Daly’s Case, 405 Mass. 33, 40-42 (1989). Within fourteen days of the date of rescript, she shall submit to this court a petition for fees and costs, with any appropriate supporting materials, as described in Fabre v. Walton, 441 Mass. 9, 10-11 (2004). Liberty Mutual will be given fourteen days thereafter to respond to the petition for fees and costs.

<bold>Workers' Compensation — denial of claim — abuse of discretion — stubborn</bold> <bold>unfounded litigiousness</bold> <block_quote> The Industrial Commission abused its discretion in a workers' compensation case by finding that the denial of plaintiff employee's claim was justified, because even though part was indeed based on reasonable grounds regarding plaintiff's October 2002 lumbar laminectomy and her February 2003 thoracic and lumbar surgery, part of defendant's defense of this claim was unreasonable and constituted stubborn unfounded litigiousness when defendant had no evidence at the time of the denial that plaintiff's injuries were anything other than work-related. Plaintiff is entitled to additional attorney fees for that portion of the time her attorney spent responding to the Forms 61 and 63, but not that spent on refuting the allegations that her later surgeries were due to her pre-existing conditions.</block_quote>

<bold>Workers' Compensation — occupational disease —</bold> <bold>specific traumatic event</bold> <block_quote> The Industrial Commission erred in a workers' compensation case by concluding that plaintiff employee bus driver's ulnar nerve entrapment neuropathy and cervical spine condition were compensable occupational diseases and that the injury to the cervical spine qualified as a specific traumatic incident, and the case is remanded for further proceedings consistent with this opinion, because: (1) the Commission applied an incorrect legal standard in finding plaintiff's ulnar neuropathy and cervical spine condition to be compensable occupational diseases pursuant to N.C.G.S. § <cross_reference>97-53</cross_reference>(13) and the cervical spine condition to be a specific traumatic incident pursuant to N.C.G.S. § <cross_reference>97-2</cross_reference>(6); (2) plaintiff failed to establish that his employment placed him at a greater risk of contracting either his ulnar nerve entrapment or his cervical spine condition than the general public; and (3) the evidence is not sufficient to satisfy the requirements enunciated by the General Assembly in N.C.G.S. § <cross_reference>97-2</cross_reference>(6) that a specific traumatic incident occurred when plaintiff presented evidence that he experienced pain on a particular date but he presented no evidence linking that pain to the occurrence of an injury, and none of plaintiff's evidence establishes a specific traumatic incident of the work assigned that can be construed as an injury by accident to plaintiff's back.</block_quote> <block_quote> Justice MARTIN did not participate in the consideration or decision of this case.</block_quote>

<bold>1. Workers' Compensation — lifting restrictions</bold> <bold>— accommodations</bold> <block_quote> Although there was conflicting evidence in a workers' compensation case about defendant's accommodation of plaintiff's lifting restrictions, there was competent evidence to support the Industrial Commission's finding that the restrictions were not accommodated. The Commission is the sole judge of the weight and credibility of the evidence.</block_quote> <bold>2. Workers' Compensation — disability — reason</bold> <bold>for termination</bold> <block_quote> There was evidence in a workers' compensation case that plaintiff sought a meeting with his manager to discuss his work restrictions, a meeting which became heated and was followed by his termination. The Commission weighed the reasons for the termination and did not err by finding that plaintiff was terminated for the stated reason of being insubordinate without acknowledging evidence that plaintiff told his manager to "shut up."</block_quote> <bold>3. Workers' Compensation — disability —</bold> <bold>termination — purpose of meeting</bold> <block_quote> There was no error in a workers' compensation case in the Industrial Commission finding that plaintiff's manager planned to discipline plaintiff at a meeting at which she had requested a witness, although there was testimony that the additional person was requested because plaintiff was agitated. Evidence tending to support a plaintiff's claim is to be viewed in the light most favorable to plaintiff.</block_quote> <bold>4. Workers' Compensation — disability —</bold> <bold>termination for work restrictions — findings</bold> <block_quote> The findings supported the Industrial Commission's determination in a workers' compensation case that plaintiff's termination was directly related to his work restrictions rather than insubordination for which any non-disabled employee would have been terminated. The Commission found testimony by defendant's w

<bold>1. Workers' Compensation — claim by deputy — authority to</bold> <bold>extinguish county's lien — sovereign immunity</bold> <block_quote> There is specific statutory authority in the Workers' Compensation Act authorizing a deputy sheriff who received both workers' compensation insurance and a third-party settlement to seek a determination of Durham County's authority to<page_number>Page 508</page_number> file a lien against his settlement proceeds. The trial court did not err by not dismissing the matter under sovereign immunity.</block_quote> <bold>2. Workers' Compensation — subrogation — statute not</bold> <bold>unconstitutional</bold> <block_quote> The workers' compensation statute which provides subrogation for a third-party settlement, N.C.G.S. § <cross_reference>97-10.2</cross_reference>(j), is not unconstitutionally vague and does not violate due process. Neither does it violate the Exclusive Emoluments prohibition of the N.C. Constitution as to benefits received by deputy sheriffs or in the possibility of a double recovery.</block_quote> <bold>3. Workers' Compensation — third-party settlement — subrogation</bold> <bold>denied</bold> <block_quote> There was competent evidence supporting findings which themselves supported extinguishing Durham County's subrogation lien on a deputy's workers' compensation benefits, including the finding that petitioner's net recovery would otherwise be zero. The trial court did not abuse its discretion.</block_quote>

<bold>1. Workers' Compensation — partial incapacity — post-injury</bold> <bold>capacity to earn wages</bold> <block_quote> The Industrial Commission did not err in a workers' compensation case by considering plaintiff employee's post-injury capacity to earn wages in calculating benefits for partial incapacity under N.C.G.S. § <cross_reference>97-30</cross_reference> where the employee has not actually returned to work.</block_quote> <bold>2. Workers' Compensation — Form 26 agreement — alternative</bold> <bold>favorable remedies</bold> <block_quote> The Industrial Commission did not err in a workers' compensation case by concluding on the date the Form 26 was approved that N.C.G.S. § <cross_reference>97-30</cross_reference> provided a more favorable remedy than plaintiff received pursuant to N.C.G.S. § <cross_reference>97-31</cross_reference> under the Form 26 agreement based on the Commission's use of the federal minimum wage as plaintiff's earning capacity, because the determination was supported by relevant medical and record evidence.</block_quote><page_number>Page 562</page_number> <bold>3. Appeal and Error — preservation of issues — failure to</bold> <bold>assign error</bold> <block_quote> Although defendants contend the Industrial Commission erred in a workers' compensation case by failing to give defendants a credit for temporary total disability benefits paid past the date defendant reached maximum medical improvement, this argument is dismissed because: (1) defendants failed to assign error to the Commission's opinion and award on the basis that a credit was erroneously overlooked by the Commission as required by N.C.R. App. P. 10(a); and (2) none of the assignments of error direct the attention of the Court of Appeals to an alleged error regarding the credit, nor are there clear or specific record or transcript references included in the brief as required by N.C.R. App. P. 10(c)(1).</block_quote>

<bold>1. Workers' Compensation — timeliness of claim —</bold> <bold>last medical payment — foreign jurisdiction</bold> <block_quote> A workers' compensation claim was timely filed because it was within two years of the last medical compensation paid by defendants, even though the payment was to medical providers in Virginia. Nothing in the statutory definition of medical compensation limits the location to North Carolina, nor is there an exception<page_number>Page 423</page_number> for the employer's presumption that the claim will be in a foreign jurisdiction. N.C.G.S. § <cross_reference>97-24</cross_reference>.</block_quote> <bold>2. Workers' Compensation — timeliness of claim</bold> <bold>— short-term disability payments — not "other</bold> <bold>compensation"</bold> <block_quote> Short-term disability benefits paid in lieu of workers' compensation were not paid pursuant to the Workers' Compensation Act, and did not qualify as "other compensation" for timeliness purposes under N.C.G.S. § <cross_reference>97-24</cross_reference>.</block_quote> <bold>3. Workers' Compensation — appeal — failure</bold> <bold>to assign error — findings binding</bold> <block_quote> Failure to assign error in a workers' compensation case to findings about plaintiff's medical history and incapacity for employment meant that those findings were binding on appeal. The Industrial Commission's conclusion that plaintiff is totally disabled was upheld.</block_quote> <bold>4. Workers' Compensation — offered part-time</bold> <bold>employment — make-work</bold> <block_quote> The evidence in a workers' compensation case supported the finding that a part-time position offered to plaintiff was make-work and did not constitute other employment as defined by N.C.G.S. § <cross_reference>97-2</cross_reference>(9).</block_quote> <bold>5. Workers' Compensation — medical care —</bold> <bold>effectiveness</bold> <block_quote> The Industrial Commission did not err in a workers' compe

<bold>1. Workers' Compensation — sale of business</bold> <bold>— continuing jurisdiction of Industrial Commission</bold> <block_quote> An employer who had sold its paper mill and workers' compensation liabilities after an employee's work-related accident continued to be subject to the jurisdiction of the Industrial Commission with regard to that accident.</block_quote> <bold>2. Workers' Compensation — jurisdiction of</bold> <bold>Industrial Commission — not divested by course of</bold> <bold>conduct</bold> <block_quote> None of the cited authority supported an argument that a course of conduct by the Department of Insurance or the Industrial Commission could divest the Commission of the jurisdiction conferred on it by statute in a workers' compensation case involving an employer that had sold its business. Moreover, the parties had stipulated that the employer, Glatfelter, was bound by the provisions of the Workers' Compensation Act.</block_quote> <bold>3. Workers' Compensation — authority of</bold> <bold>Industrial Commission — agreement transferring</bold> <bold>obligations</bold> <block_quote> Adjudication of the validity of an agreement transferring workers' compensation liabilities along with a paper mill fell within the delegated authority of the Industrial Commission. N.C.G.S. § <cross_reference>97-6</cross_reference>.</block_quote><page_number>Page 597</page_number> <bold>4. Workers' Compensation — authority of</bold> <bold>Industrial Commission — discharge of obligation</bold> <block_quote> Determining whether a self-insurer has fully discharged its workers' compensation obligations is the province of the Industrial Commission; the Department of Insurance does not have that authority, by implication or expression. The Department of Insurance in this case improperly released the bond of a self-insured employer which did not secure its obligations in a manner compliant with N.C.G.S. § <cross_reference>97-185</cross_reference>(g).</block_qu

<bold>1. Workers' Compensation — compensable injury — professional</bold> <bold>football player</bold> <block_quote> The Industrial Commission did not err by finding that a professional football player sustained a compensable injury by accident arising out of and in the course of his employment where his leg was broken and ankle tendons torn when other players fell on the back of his leg during a game. There was evidence to support the Commission's findings that the injury was unusual.</block_quote> <bold>2. Workers' Compensation — disability — professional football</bold> <bold>player — reason for being released from team — personal</bold> <bold>knowledge</bold> <block_quote> The trial court did not err by allowing plaintiff, a football player, to testify about the reason for his termination from a team. Plaintiff offered personal knowledge about why he was released and his testimony was not hearsay.</block_quote> <bold>3. Workers' Compensation — disability — injured professional</bold> <bold>football player — return with another team — eventual</bold> <bold>release</bold> <block_quote> The Industrial Commission did not err in a workers' compensation case by awarding compensation to a professional football player who was injured while playing with defendant, then returned to play with another team. While plaintiff did try out for and make the other team, he was released from that team because of injuries suffered with defendant.</block_quote> <bold>4. Workers' Compensation — disability — professional football</bold> <bold>player — dollar-for-dollar credits</bold> <block_quote> The Industrial Commission did not abuse its discretion in a workers' compensation disability case by awarding a time credit rather than a dollar-for-dollar credit for payments made by defendants to plaintiff, a professional football player, after he was injured. Dollar-for-dollar credits are precluded by North Carolina law.</block_quote><page_number>Page 530</page_numb

<bold>Workers' Compensation — prior arm injury — not the direct cause</bold> <bold>of auto accident</bold> <block_quote> An Industrial Commission opinion denying compensation was affirmed where plaintiff contended that an automobile accident was a direct and natural result of his prior compensable arm injury, but there was competent evidence that the accident was caused by plaintiff jerking his car to the left upon hitting gravel in the road. The employee bears the burden of establishing the compensability of the claim, and the Commission did not err by finding that there was insufficient evidence that the accident was caused by the prior compensable injury.</block_quote>