Opinion
BOARD No. 99687-87
Filed: April 25, 1996
REVIEWING BOARD DECISION
(Judges Kirby, Maze-Rothstein and Smith)
APPEARANCES
Frederick W. Uehlein, Esq., for the employee
Mark Greeley, Esq., for the insurer
The children of the deceased employee, by a former spouse, appeal the decision of the administrative judge which denied and dismissed their claim for additional benefits under G.L.c. 152, § 31. The children contend that as a matter of law, they are entitled to further benefits. We affirm the judge's decision on the calculation of the statutory cap for § 31 benefits and the denial of benefits beyond that cap. However, finding the judge erred in denying the children § 31 benefits still remaining under the statutory cap, we vacate the judge's decision and remand for further findings consistent with this opinion.
The divorced employee, Richard O'Day, died from an industrial accident on October 27, 1987, leaving behind two minor children from a former marriage. After a conference was held on the children's claim for § 31 benefits, the administrative judge issued an order dated June 4, 1990 awarding the children § 31 weekly benefits from October 1987 and continuing in an amount of $384.61, based upon the employee's last average weekly wage of $576.92. (Dec. 2.) At the time of the employee's death, the state average weekly wage was $411.00.Id.
The self-insurer paid $384.61 for 250 weeks, beginning in October 1987 and ending on October 17, 1992, at which time it unilaterally terminated further benefits. The children filed a claim for additional benefits which the judge denied by a conference order dated June 11, 1993. The children appealed to a hearing held on October 27, 1993.
At hearing, the children argued that they were entitled to further benefits remaining under the statutory cap, and in any case, they were entitled to benefits beyond the cap by virtue of their full-time student status. (Employee's Brief, 2.) The administrative judge found that § 31 provides for benefits up to two hundred fifty times the state average weekly wage, instead of two hundred fifty weekly payments of compensation based on the employee's average weekly wage, as the self-insurer contended. We affirm this part of the judge's decision. But because the judge erroneously denied the children's claim on the premise that § 31 barred further benefits to children over eighteen years of age even where benefits remained under the statutory cap, we vacate that part of his decision and recommit.
On appeal, the children argue that the judge erred in denying them benefits remaining under the statutory cap. We agree. The judge found the self-insurer prematurely terminated benefits because it had miscalculated the statutory cap. However, citing the absence of any explicit mention of a full-time student exemption for benefits beyond the statutory cap in paragraph four in § 31, the judge denied the children continued benefits because they had reached the age of eighteen. (Dec. 4, 5.) This was error.
Survivors' benefits are limited by a statutory weekly cap, with three exceptions provided under § 31: 1) children who have not attained the age of eighteen; 2) a dependent unremarried widow or widower during the period the widow or widower is not fully self-supporting; and 3) children physically or mentally incapacitated from earning though they have reached the age of eighteen. See G.L.c. 152, § 31 (para. 4) (as amended by St. 1982, c. 663, § 1) These are the only exceptions which extend § 31 benefits beyond the statutory cap.
The judge failed to apply the proper analysis of § 31 to this case. Paragraph one of § 31 establishes the class of widows, widowers, and children as possible recipients of death benefits. It provides: "If death results from the injury, the insurer shall pay the following dependents of the employee, including his or her children by a former spouse, wholly dependent upon his or her earnings for support at the time of his or her injury. . . ." G.L.c. 152, § 31 (emphases added) Under this paragraph, the children were entitled to benefits as dependents of the deceased employee because the judge found them to have been totally dependent.
Paragraph two next treats spousal death benefits with special provisions for providing additional benefits of six dollars a week for each child under the age of eighteen, over eighteen and mentally or physically incapacitated, or a full-time student, to widows or widowers receiving less than one hundred and fifty dollars weekly. Paragraph three terminates such benefits should the widow or widower remarry, and provides a provision for payment of benefits thereafter to the children. Here, benefits awarded exceeded one hundred and fifty dollars and there is no widow, and bearing to the children's claims.
Paragraph four then establishes the formula for computing the statutory cap for benefits and lists exceptions for further benefits beyond the cap. This part, however, pertains only to benefits sought beyond the statutory weekly maximum. It does not operate to limit or terminate benefits still remaining under the statute's definition of the overall monetary cap. The only significance the statute attaches to the age eighteen is in the second paragraph where the exception for spousal beneficiaries of low weekly wage earners is drawn. For purposes of the fourth paragraph which sets the statutory cap, the children's age of majority or status as full-time students are immaterial. Here, the children, though over the age of eighteen, have not reached the caps on their benefits entitlement. We therefore reinstate the judge's June 4, 1990 conference order and remand for a determination of the amount remaining under the overall monetary limit payable to the children.
"The total payments due under this section shall not be more than the average weekly wage in effect in the commonwealth at the time of the injury . . . multiplied by two hundred and fifty . . . except that payment to or for the benefit of children of the deceased employee under age eighteen shall not be discontinued prior to the age of eighteen. . . ." G.L.c. 152, § 31 (para. 5)
Next, the children contend that they are entitled to benefits beyond the statutory cap by virtue of their full-time student status. They argue that the phrase "in all other cases of dependency" in paragraph five demonstrates legislative intent to allow benefits to other types of dependents not specified in paragraphs two and four. We disagree and affirm the judge's decision denying post-statutory benefits. If we interpret § 31 as the employee suggests, it would render superfluous the explicit treatment of other classes of death benefits in other paragraphs of the section — women, children, adults mentally or physically incapacitated and more specifically, the express mention offull-time students in paragraph two. See Commonwealth v. Grove, 366 Mass. 351, 354 (1974) (no portion of statutory language may be deemed superfluous). We therefore cannot ignore the absence of explicit language providing for full-time student status exception in paragraph five, especially when full-time status was considered and provided for in paragraph two in a limited context of a low compensation rate of one hundred ten dollars weekly.
We note, however, that children over the age of eighteen are not always barred from further benefits beyond the cap. Paragraph two provides:
"To the widow or widower so long as he or she remains unremarried, a weekly compensation. . . . If the widow or widower dies or if there is no surviving wife or husband of the deceased employee, such amount or amounts as would have been payable to or for his or her own use and for the benefit of all children of the employee shall be paid in equal shares to all surviving children of the employee."
Id. (para. 2) (emphases added) Via this paragraph, the children of a deceased employee might qualified as an exception to the statutory cap under paragraph five, by "stepping into the shoes" of the unremarried and deceased widow. Here, however, there is no widow deceased or unremarried. Therefore the children fail to arrive at the threshold of such a possible avenue.
Accordingly, we affirm in part the judge's decision on the calculation of the statutory cap and the denial of further benefits beyond that cap. We vacate in part and remand for further determination of the remaining amount of benefits entitled to the children within the statutory cap.
As the insurer unilaterally terminated benefits it was required to continue, see § 8(2), the claimants are entitled to the penalty provided by G.L.c. 152, § 8(5).
Section 8 provides in pertinent part: "(2) An insurer paying weekly compensation benefits shall not modify or discontinue such payments except in the following situations:. . . ." The situation here is not one of those designated circumstances.
Section 8 provides in pertinent part: (5) . . . if the insurer terminates, reduces, or fails to make any payments required under this chapter, and additional compensation is later ordered, the employee shall be paid by the insurer a penalty payment equal to twenty per cent of the additional compensation due on the date of such finding. No amount paid as a penalty under this section shall be included in any formula utilized to establish premium rates for workers' compensation insurance. No termination or modification of benefits not based on actual earnings or an order of the board shall be allowed without seven days written notice to the employee and the department."
So ordered.
_________________________ Edward P. Kirby Administrative Law Judge
_________________________ Susan Maze-Rothstein Administrative Law Judge
Filed: April 25, 1996
I concur in the majority's result but disagree with its analysis. The result is driven by the last sentence of the second paragraph and the clear words in the first sentence of the fourth paragraph of § 31.
The applicable benefits are granted by G.L.c. 152, § 31 which provides in pertinent part:
[first paragraph:]
If death results from the injury, the insurer shall pay . . . . his . . . children by a former spouse, 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, payable, except as hereinafter provided, in the manner set forth in section thirty-two.
[second paragraph:]
. . . . a weekly compensation equal to two-thirds of average weekly wages of the deceased employee, but not more than the average weekly wage in the commonwealth . . .; provided, however, that . . . to the widow or widower six dollars more a week for each child of the deceased employee under the age of 18 or . . ., or over said age and a full time student qualified for exemption as a dependent under section one hundred and fifty-one (e) of the Internal Revenue Code . . . if there is no surviving wife . . . of the deceased employee, such amount or amounts as would have been payable to his or her own use and for the benefit of all children of the employee shall be paid in equal shares to all the surviving children of the employee. . . .
[fourth paragraph:]
The total payments due under this section shall not be more than the average weekly wage in effect in the commonwealth at the time of the injury . . . plus any costs of living increases provided by this section . . . except that after a dependent unremarried widow or widower or physically or mentally incapacitated child over the age of eighteen has received the maximum payments, he or she shall continue to receive further payments but only during such periods as he or she is in fact not fully self-supporting. . . . (emphasis and paragraph designations supplied).
Section 31 must be read together with § 35A which governs the benefits to which the surviving spouse, and in her absence, the surviving dependents, are entitled.
Section 35A mirrors the provision in § 31 for full time students. It provides in pertinent part:
Where the injured employee has persons conclusively presumed to be dependent upon him . . ., the sum of six dollars shall be added to the weekly compensation. . . . For the purposes of this section the following persons shall be conclusively presumed to be wholly dependent for support upon an employee.
(c) Children . . . [over] the age of eighteen years . . . and full time student qualified for exemption as a dependent under section one hundred fifty-one (e) of the Internal Revenue Code [ 26 USCA 151(e)].
In denying the claim of the adult students, the administrative judge relied upon Canavan's Case, 331 Mass. 444 (1954). Canavan was written before the legislature expanded § 35A dependency benefits and § 31 survivors benefits to include adult children who were full-time students and therefore is not dispositive of the case. See St. 1974, c. 438, § 1 and 2. However, Canavan's rationale can be applied to the present statute: children conclusively presumed to be dependent under § 35A are included within the meaning of the language of the last sentence of the second paragraph of § 31. See Canavan's Case, at 446-447. As the six dollar per week dependency benefit could not be properly discontinued for the over eighteen year old full-time students, they are entitled to receive their spousal share provided by the last sentence of the second paragraph of § 31. It is the child's presumed condition of dependency which permits the additional compensation. As the payment does not end at age eighteen where the child is a full time student, then the payment under this part of § 31 also does not end, "because the basis for both payments is the dependency of the child." Id., at 447-448.
St. 1974, c. 438, § 1, approved June 28, 1975, and by § 3 made effective November 1, 1974 and applicable only to injuries occurring after said date, inserted into the second paragraph of § 31 the language "or over said age and a full-time student qualified for exemption as a dependent under section one hundred and fifty-one (e) of the Internal Revenue Code." Section 2 added the same provision for full-time students to § 35A.
A contrary interpretation would lead to inequalities between children which the legislature could hardly have contemplated. For example, a full time student over eighteen whose mother is a surviving spouse would have a six dollar per week payment made on his behalf and at her death would step into his mother's shoes and have his benefits continue. But a child whose mother was divorced from the decedent would have his benefits cut off on his mother's death. Similarly, a full time student over age eighteen whose injured parent was alive would continue to have benefits paid on his behalf. But a child whose parent dies from the work injury would not. It would take clearer statutory language to convince me that the legislature intended such a result. The beneficent design of the 1974 legislature, in enacting St. 1974, c. 438, will be implemented here by a ruling continuing the benefits to the full time student adult children of the decedent, up to the amount of the statutory cap in the fourth paragraph of § 31.
The statutory cap by its clear and unambiguous language limits the amount of payments to all persons. See § 31 ("total payments under this section shall not be more than"). This limitation caps the benefits payable "[i]n all other cases of total dependency", pursuant to the fifth paragraph of § 31, as well as the benefits paid pursuant to the preceding paragraphs. The only exception from the cap for adults is contained in the fourth paragraph — dependent unremarried widows or physically mentally handicapped children, who are not in fact fully self-supporting. The adult claimants do not fit within this exception and therefore do not qualify for additional benefits beyond the cap.
For these reasons, I agree with the majority's order.
________________________ Suzanne E.K. Smith Administrative Law Judge