Opinion
BOARD Nos. 039927-94, 039926-94
Filed: November 17, 1997
REVIEWING BOARD DECISION
(Judges McCarthy, Maze-Rothstein, and Smith)
APPEARANCES
Michael F. Walsh, Esq., for the employee
Marguerite S. O'Neill, Esq., for Liberty Mutual Ins. Co.
Robert H. Barry, Esq., for Mass. Insurers Insolvency Fund
Robert Mills died on April 26, 1995 after working as a spray painter since 1971. His last employment was with Light Metal Platers from 1980 until December 14, 1987 when he was laid off. (Dec. 4, 5.) His job involved working with polyurethanes, baked enamels, lacquers, vinyl paints and degreasing fluids. (Dec. 5.) Over the course of his employment, he would often cough up the colors of the paint that were then being used and would experience episodes of nausea and vomiting. (Dec. 5-7.)
In March, 1993 he was diagnosed as suffering from chronic obstructive pulmonary disease (COPD). He was later also diagnosed with liver disease and renal failure. (Dec. 5-6.)
Mr. Mills filed a claim for benefits against two insurers. Neither insurer accepted liability. A conference was held and both claims were denied. The employee appealed to a full evidentiary hearing. (Dec. 2.) In lieu of a § 11A impartial examination report the parties were allowed to submit their own medical evidence. The employee presented the deposition of Dr. Spinelli and the report and deposition of Dr. Christiani while Liberty Mutual relied on Dr. Wainer. Mass. Insurers Insolvency Fund did not submit medical evidence. (Dec. 1.)
The employer was insured by the Mass. Insurers Insolvency Fund from April 1, 1994 to April 1, 1996. Thereafter Liberty Mutual Insurance was the employer's workers' compensation insurer. (Dec. 4.)
452 CMR 1.10 (5) provides that no impartial physician be required in disputed matters concerning §§ 7A or 31.
Relying on the opinions of Dr. Christiani and Dr. Wainer the judge found that Mr. Mills suffered from COPD consisting of chronic bronchitis, emphysema and an asthmatic or bronchospastic component that was of moderate severity, liver disease and renal failure, that the episodes of nausea and vomiting experienced by Mr. Mills were typical signs of oil paint overexposure with the central nervous system and gastrointestinal system affected and that the employee died of liver failure not causally related to his employment. (Dec. 6-7, 12.)
The administrative judge found that, given the totality of the medical evidence, the cause of the employee's COPD was cigarette smoking which was aggravated to the point of disablement by his multiple workplace exposures to irritants. (Dec. 7-9.) Based on the adopted medical evidence in combination with the employee's age, education and work history, the judge concluded that the employee was totally incapacitated from work from April 1, 1993 to the time of his death and that his incapacity was causally related to his work. Finally, the judge determined that the employee's death was not causally related to the compensable medical condition. (Dec. 12.) As the insurer at the time of the last causally related exposure, Liberty Mutual was ordered to pay weekly benefits from April 1, 1993 through April 26, 1995. (Dec. 9, 13.)
Mr. Mills gave a history of smoking a pack of cigarettes per day since he was a teenager. (Dec. 7.)
On appeal the claimant widow advances one argument which has merit, namely that the judge erred by not applying § 7A.
General laws c. 152, § 7A (St. 1991, c. 398, § 21) states:
This amended version of § 7A is applicable to the instant case, even though its effective date was December 23, 1991, and the date of injury was December 14, 1987, as the legislature deemed the amendment procedural in character, and therefore retroactive. St.
In any claim for compensation where the employee has been killed or found dead at his place of employment or, in the absence of death, is physically or mentally unable to testify, and such testimonial incapacity is causally related to the injury, it shall be prima facie evidence that the employee was performing his regular duties on the day of injury or death and that the claim comes within the provisions of this chapter, that sufficient notice has been given and that the injury or death was not occasioned by the willful intention of the employee to injure or kill himself or another.
Section 7A is self-operative and must be considered whenever its applicability becomes an issue, even where a claimant fails to raise it. Melo v. Manganaro, 10 Mass. Workers' Comp. Rep. 13, 20 (1996); Bechtold v. Compo Indus., 2 Mass. Workers' Comp. Rep. 269, 272 (1988).
Since we previously examined the new § 7A, see Wyman v.Courier Citizen Co., 9 Mass. Workers' Comp. Rep. 333 (1995), we need not repeat our analysis here. We simply restate our conclusion that the new restricted § 7A language only requires living persons to prove that their inability to testify is causally related to the industrial injury. Where, as here, the employee has died, § 7A still operates as prima facie evidence that there is causal relation between the employee's death and his work injury. Wyman, supra at 340-341; Anderson's Case, 373 Mass. 813 (1977)
We recommit the case to the judge to apply § 7A and to make such further findings as she deems appropriate.
____________________________ William A. McCarthy Administrative Law Judge
____________________________ Susan Maze-Rothstein Administrative Judge
Filed: November 17, 1997
APPENDIX
For further legislative history of this amendment, see § 3 of H.R. 2789 which became § 3 of S. 38; Workers' Advisory Council Staff Commentary on Proposed Legislature-Spring 1991 at 19-20, contained in Advisory Council Minutes of March 29, 1991 Meeting; Advisory Council Staff, Comparison of S. 38 and S. 64 of 1991 for March 29, 1991 Advisory Council Meeting; H.R. 5609 (the Weld Workers' Compensation Bill), § 17; and S. 1741, § 32; Nason, An Act to Streamline the Workers' Compensation System, Section by Section (Bump/Pines W.C. Bill), at 5 (November 13, 1991); Advisory Council Staff, Initial Comments, Commerce Labor Bill, S. 1741 and Weld Bill, at 15, repeated in Advisory Council, Initial Analysis of Chapters 398 and 399 of the Acts of 1991, at 156-7.
It is undisputed that Mills was not "found dead at his place of employment." The claimant therefore had to demonstrate that Mills was "killed" to trigger § 7A.
The terms "has been killed" require a finding by the judge that work caused the death. Ramos's Case, 330 Mass. 686, 689 (1953); Lysaght's Case, 328 Mass. 281, 284 (1952); Lysaght's Case, 331 Mass. 451, 452 (1954); Crawford's Case, 340 Mass. 719, 720 (1960); LeBlanc's Case, 332 Mass. 334, 338-339 (1955); and Pugh's Case, 344 Mass. 763 (1962) (interpreting the original § 7A, which only applied to death situations where the employee "had been killed"). "[T]here ha[s] to be some evidence to connect the employee's presence at the place of injury either directly or indirectly with the employment" in order to trigger § 7A's application. Locke, Workmen's Compensation, § 504 at 603-604 (2nd ed. 1981). Section 7A only becomes self-operative, i.e. applicable whether or not it is affirmatively asserted by the claimant, once it has been triggered by facts which meet the statutory criteria for its application.
In 1971, the Legislature expanded § 7A's coverage. G.L. c. 152, § 7A as amended by St. 1971, c. 702. The words "or found dead at the place of employment" were added after the word "killed" to make the fact that the employee died on the business premises sufficient to trigger the benefit of the presumption. Locke, infra. Where the employee was found dead at the workplace, the claimant no longer needed to produce evidence that work activity caused the death. See Nason Wall, Massachusetts Workers' Compensation Act, § 10.7 (1995 Ed.). Under that circumstance, causation was presumed. In Anderson's Case, 373 Mass. 813 (1977), the court construed the situation where an employee was stricken at work and died shortly thereafter to be one where the employee was "found dead at the place of employment." Id. at 816-7. Under all other death circumstances, the requirement remained unchanged: the claimant must establish a causal connection between the death and work to trigger the statute. The 1991 amendment to § 7A did not abrogate this requirement.
The Legislature amended the section in 1991 to reverse the line of reviewing board cases which had held that § 7A was triggered by the fact that an employee was dead at the time of hearing. L. Nason R. Wall, Massachusetts Workers' Compensation Reform Act § 10.7, at 279, 284-285 (1995). If the Legislature intended to make all death claims subject to the § 7A presumptions, its specific and separate references to "killed" and "found dead at the place of employment" would be redundant and superfluous. Had this been the intent, the statute would have made the presumption applicable where the employee was simply dead. Nor would the new language "in the absence of death" be necessary.
See, e.g. Bechtold v. Compo Indus., 2 Mass. Workers' Comp. Rep. 269 (1988); Couch v. Chestnut Hill Benevolent Assoc., 3 Mass. Workers' Comp. Rep. 235 (1989).
Because the judge found that employee's death was not caused by work, § 7A does not apply. There is no reason to recommit the case. The judge's decision should be affirmed.
___________________________ Suzanne E. K. Smith Administrative Law Judge