Opinion
BOARD No. 00442892
Filed: November 25, 1998
REVIEWING BOARD DECISION
(Judges McCarthy, Wilson and Smith)
APPEARANCES
Kevin S. Sullivan, Esq., for the employee.
John C. White, Esq., for the insurer.
The claimant appeals from a decision in which an administrative judge denied her claim for workers' compensation benefits due to the death of her husband, the employee, from a heart attack at home twelve hours after leaving the workplace. The claimant challenges the judge's conclusion that the provisions of G.L.c. 152, § 7A do not apply to the case. After review and reconsideration we affirm the decision, and decline to follow our § 7A interpretation in Wyman v. Courier Citizen Co., 9 Mass. Workers' Comp. Rep. 333, 334 (1995), and Mills v. Light Metal Platers, 11 Mass. Workers' Comp. Rep. 563 (1997), insofar as it is inconsistent with what follows.
Donald Costa, the employee, worked for Colonial Gas Company from 1971 until his death on March 23, 1992, at the age of forty-three. The employee's job duties required him to make residential calls to service appliances such as stoves, heaters, air conditioners and dryers. He routinely lifted and moved these heavy appliances. The employee regularly worked overtime, up to sixty hours per week during the busy seasons. (Dec. 5.)
On Sunday, December 8, 1991, Mr. Costa worked a four-hour shift. Upon returning home, he told his wife that he felt tired. He did not feel well the next morning, and went to the office of his family physician, complaining of chest pains and general weakness. Mr. Costa was admitted to Lowell General Hospital, where he was diagnosed as having suffered a myocardial infarction. He underwent cardiac catheterization, showed improvement and was released from the hospital on December 19, 1991. (Dec. 6.)
The employee's treating physician recommended that he avoid working overtime, and use good judgment regarding heavy lifting. He complied with the recommendations and also changed his diet and lifestyle at the doctor's suggestion. Nonetheless, the employee's physical condition deteriorated. His symptoms worsened and a stress test was performed on March 17, 1992. (Dec. 7.)
On March 22, 1992, Mr. Costa arrived at work at 4:00 p.m. for his eight-hour shift. Some time before 5:00 p.m., he left the shop to go to a customer's house for a repair job. He did not feel well and apparently did not reach his destination. (Dec. 8.) The employee went home and went to bed. Around 5:00 a.m., Mrs. Costa was awakened by the employee making gurgling noises. After attempting resuscitation the claimant and her son took the employee to Lowell General Hospital, where he was pronounced dead by virtue of a myocardial infarction. (Dec. 9.)
At hearing, the claimant presented the following medical evidence. The employee's family physician, Dr. Jeffrey Byrne, opined that the employee's work activities on March 22, 1992 contributed to his death. Given the results of a stress test performed on March 17, 1992, the employee would have been at risk for a cardiac event from even less-than-significant exertion. (Dec. 11-12.) The judge rejected Dr. Byrne's opinion on causal connection. Dr. Lawrence Baker also testified on behalf of the claimant. Dr. Baker's opinion was that the employee's exertional activities on March 22, 1992 were a major contributing factor in the development of his fatal myocardial infarction on March 23, 1992. However, when presented at deposition with a hypothetical that eliminated any evidence of exertion in the course of the employee's work on March 22, 1992, Dr. Baker testified that he would be unable to make a causal connection between the employee's work and his myocardial infarction. (Dec. 12-13.) The judge adopted Dr. Baker's opinion. The judge concluded: "Because I find that the employee did not engage in any exertional activities while at work on March 22, 1992, I reject the previously stated opinions of Dr. Baker findings a causal connection." (Dec. 13.)
Dr. Elliot Sagall testified on behalf of the insurer. Dr Sagall opined, based on a hypothetical in which the employee did not perform any significant work activity on March 22, 1992, that the employee's work had not contributed to his March 23, 1992 myocardial infarction. (Dec. 14.) The judge adopted Dr. Sagall's opinion as well. (Dec. 15.)
The judge summarized in the following general finding:
I conclude that Section 7A does not apply in this case, because the employee was not killed nor found dead at his place of employment. Therefore, the claimant has the burden to show that the employee's death was causally related to his work activities. I conclude that the employee performed no work activities on March 22, 1992 which would be sufficient to be considered as causally related to his subsequent myocardial infarction, which occurred approximately twelve hours after he left work, at 5:00 a.m. on March 23, 1992. Adopting the medical opinion of the insurer's expert, Dr. Eliot Sagall, I find that the employee's death was not related to any work activity.
(Dec. 15.) The judge therefore denied and dismissed the claims of the employee's widow. (Dec. 16.) Aggrieved, she appeals to the reviewing board.
The claimant argues that the judge's construction of § 7A was not consistent with that of the reviewing board in the cases of Wyman and Mills, supra. The employee is correct. However, because we have reexamined the problems of our construction of § 7A in Wyman (followed in Mills), we affirm the hearing judge's decision, and overrule so much of Wyman and Mills as does not comport with what we do here.
General Laws c. 152, § 7A (St. 1991, c. 398, § 21) states, in its entirety:
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 of the injury 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.
In Wyman, supra, we examined § 7A with an eye toward the difference between the above-quoted new version of the statute and the 1971 version (St. 1971, § 702) which it replaced. That section provided, in pertinent part:
In any claim for compensation where the employee has been killed, or found dead at his place of employment or is physically or mentally unable to testify, it shall be prima facie evidence that . . . [remainder identical to 1991 version].
We stated, "To read the newly inserted language [ in the absence of death, (the employee) is physically or mentally unable to testify, and such testimonial incapacity is causally related to the injury . . .] as applying not only where the employee is physically or mentally unable to testify but also where the employee has died would be to render the prima facie effect of § 7A in great part illusory . . . ." Wyman at 430. "Accordingly, we conclude that the new language of § 7A applies only to those claimants who are alive but unable to communicate, who must prove that their inability to communicate is causally related to the industrial injury. Where the employee is deceased, § 7A operates as it had in the past, as prima facie evidence that the employee was performing his or her regular duties on the date of death." Id. at 340-341.
The problem with our construction of § 7A in Wyman is that it renders the statutory phrase, "killed or found dead at the place of employment" surplusage. What is the point to that locational limitation of death, if the section covers all deceased employees, with no qualifications? We now can see none. We must find a construction of § 7A that lends meaning to all of its language.
The answer is in the approach of the administrative judge in the present case and the dissenting panel judge in Mills. That is, "in the absence of" "the employee [being] killed or found dead at the place of his employment" (§ 7A), "the claimant has the burden to show that the employee's death was causally related to his work activities." (Dec. 15.) This construction allows for inclusion in § 7A's coverage of deceased employees, whose deaths do not occur at the workplace, but which deaths are causally related to their employment. We consider this to be a rational interpretation, as it maintains the prima facie effect of establishing liability under the Act, so long as the judge adopts a medical opinion that causally relates the after-occurring death (or live testimonial incapacity) of the employee to the workplace. As the judge here did not find the proffered medical testimony persuasive as to that crucial issue, he denied the application of § 7A and, a fortiori, the claim itself.
The reach of the current (1991) version of § 7A is shorter than its predecessor. Yet once the critical nexus between death or live testimonial incapacity and the working injury is made, the claimant (or employee) has met his burden of proof in some keys areas, including but not necessarily limited to the propriety of the employee's activities at the time of injury or death, and notice was not late and claim made timely.
The decision is affirmed.
So ordered.
________________________ William A. McCarthy Administrative Law Judge
________________________ Sara Holmes Wilson Administrative Law Judge
________________________ Suzanne E.K. Smith Administrative Law Judge
FILED: November 25, 1998