Opinion
BOARD NO. 02198687
Filed: August 20, 1996
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, McCarthy and Smith)
APPEARANCES
David L. Cronin, Esq., for the employee
Robert H. Barry, Esq., for the insurer
The insurer appeals from a decision after remand denying its motion to discontinue § 31 benefits. Because the decision is neither arbitrary nor capricious and is sufficiently grounded in the evidence, we affirm.
The employee, Robert Marconi, died in the course of his employment on April 9, 1987. (Dec. 4, 5.) As a result, the insurer paid his widow G.L.c. 152, § 31 death benefits until April 10, 1992 for the presumed dependency maximum of two hundred and fifty times the state average weekly wage at the time of the injury. Payments were continued by an agreement without prejudice. (Insurer's Brief, 1.) Eventually, the insurer filed a complaint to discontinue payments. A § 10A conference gave rise to an order denying the insurer's request. (Dec. 4.) The insurer appealed to a hearing de novo. A decision filed on December 2, 1992 denied the discontinuance of benefits. The insurer appealed this first decision. The reviewing board vacated it and remanded for further findings on whether, under § 31, the claimant was "in fact fully self-supporting" after excluding expenses for adult children capable of self-support. Marconi v. Crusader Paper Co., 8 Mass. Workers' Comp. Rep. 167, 168 (1994). On remand, the judge redoubled his fact finding efforts and after an extensive and exacting analysis, again found the claimant was not fully self-supporting. (Dec. 17.) The discontinuance was disallowed.Id.
The decision reports the employee's date of death as April 9, 1986. (Dec. 2, 3.) On brief the parties agree it was the same date in April but a year later, 1987. (Claimant's Brief, 1, n. 1; Insurer's Brief, 1.)
Where § 31 payments were continued without prejudice, we are at a loss as to why a discontinuance complaint was filed.
The insurer appeals anew to the reviewing board. It now contends the decision does not disclose the legal standard applied and that any standard that "seemed" to have been used or "suggested" was rejected in Murphy v. Salem State College, 8 Mass. Workers' Comp. Rep. 185 (1994). See (Insurer's Brief, 4.) The opposite is true.
The insurer erroneously cited to the wrong case name and page number.
General Laws c. 152, § 11B requires a judge to ". . . set forth the issues in controversy, the decision on each and a brief statement of the grounds for each such decision." This includes identifying legal standards and making subsidiary findings that are sufficiently detailed and specific for the reviewing board to determine whether the correct standards and principles of law have been applied. Antoine v. Pyrotector, 7 Mass. Workers' Comp. Rep. 337 (1993); Praetz v. Factory Mut. Eng'g. Research, 7 Mass. Workers' Comp. Rep. 45 (1993).
Here, the judge made exhaustive findings on the claimant's expenses and clearly articulated the legal standard he applied. As the insurer itself pointed out in its brief, "the judge found that the expenses are 'reasonable and necessary for the support of the claimant'." (Insurer Brief, 4.) (Emphasis added). This is exactly the standard established, not rejected, by Murphy. Though in Murphy we rendered no specific litmus test to determine whether a widow is fully self-supporting within the meaning of § 31, we held that an "administrative judge may weigh the reasonableness and the necessity of costs claimed by the widow." Murphy, supra at 186 (emphasis added). Therefore, the judge applied the proper legal standard to the ample facts he so ably found.
The findings on income are not challenged on appeal.
The insurer maintains some of the employee's expenses are not truly reasonable and necessary. The insurer would have us declare that some of the expenses were not reasonable or necessary as a matter of law. The question of whether a surviving spouse is fully self-supporting, however, is a factual issue for the administrative judge to decide. Id. The judge carefully scrutinized and discussed each expense applying the "reasonableness and necessity" standard. Although some of the claimant's outlay may give us cause for pause, we are not the arbiters of fact. Nor were any of the expenses claimed so extreme that we could say for the judge to have found them reasonable and necessary edged into the realm of whim or caprice. Finally, our standard of review does not extend to what conclusions we would have reached had we been the finder of fact, but is instead limited to whether there is sufficient evidence, including all rational inferences therefrom, to support the judge's decision. G.L.c. 152, § 11C (as amended by St. 1991, c. 398, § 31); see also Brown v. Strathmore Paper Co., 9 Mass. Worker's Comp. Rep. 191 (1995);Donahue v. Petrillo, 8 Mass. Worker's Comp. Rep. 36 (1994). We conclude there is.
The dissent advances an unprecedented interpretation of the phrase, "in fact not fully self-supporting," first added to § 31 in 1948. The dissent suggests that a surviving spouse is "in fact fully self-supporting" as a matter of law if he or she earns anything more than a bare subsistence level of income. The premise is based on the notion that such claimants should not be better placed than a totally incapacitated worker. The dissent suggestion would cut off § 31 benefits at something less than even the state average weekly wage, which itself acts as a ceiling of the amount of weekly benefits (G.L.c. 152, § 1 (9) and (10) and G.L.c. 151A, § 29 (a)) and not as a standard ofnon-eligibility for benefits to surviving spouses.
The use of the state average weekly wage as the weekly cap was first instituted in 1978. St. 1976, c. 474, § 5 effective date, October 1, 1978.
In fact, § 31 itself refers to the concept as it was intended to be used, as a cap to the weekly compensation due to a surviving spouse. It reads in pertinent part:
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 as determined according to the provisions of subsection (a) of section twenty-nine of chapter one hundred and fifty-one A, and promulgated by the commissioner of the department of employment and training on or before the October first. . . .
The dissent reports some legislative history, which is not helpful in getting at the actual meaning of the phrase "in fact not fully self supporting." We fail to see how the legislative progression — from the provision of lifetime benefits for widows to the provision of benefits only as long as such widows are "in fact not fully self-supporting" — tells us anything about what that phrase means. Moreover, the dissent's austere theory would require legislative action, which despite the recited history of bills, has yet to occur.
Commentators who have earlier grappled with how § 31 ought be construed have observed that "(n)o consideration should be given to any ratio between the amount of compensation received and the amount the widow earns in determining whether the widow is self-supporting." Kistin, Dependency Benefits under the Massachusetts Workmen's Compensation Act, 5 Boston College Industrial and Commercial Law Review, 530, 564-565 (1964). Thus, "depending on current living costs, widows must be permitted to earn increasingly larger wages over and above compensation rates, and should be in fact fully self-supporting from these earnings before losing their compensation benefits." Id.
We think that the legislature's intent to provide for benefits to surviving spouses depending on their individual needs, is much more readily revealed by its specific use of the unmistakably plain language — used nowhere else in the Act — "in fact."
We note that none of the dissent's cited cases construe the pertinent phrase, "in fact not fully self-supporting."
The legislature well could have provided that the widow receive continuing benefits "during such periods as she is not fully self-supporting," thus omitting the words "in fact" and allowing the board wider discretion in the interpretation of this provision. The deliberate insertion of these two words. however, manifests its intent to limit the board's determination to the clear and simple meaning of these words and to the facts at the time of the determination. . . .
Kistin, supra at 563. (Emphasis added).
By use of the phrase "in fact", the legislature clearly directed the administrative judges to focus on the facts underpinning a surviving spouse's claim that he or she continues to be "not fully self-supporting?" In amending § 31 over the years, wouldn't the legislature have simply defined "fully self-supporting," utilizing the state average weekly wage, or some other monetary figure, as a noneligibility cut-off if it had so intended? To the contrary,
Section 31 has been amended 4 times since 1978, when the state average weekly wage first became part of the Act. St. 1978, c. 461, § 1; St. 1982, c. 663, § 1; St. 1985, c. 572, § 41; and St. 1990, c. 177, § 347.
[t]he legislature could not have intended to impose the same standard for every widow. The statute as a whole recognizes and provides in several instances for varying standards of living. . . . [W]idows accustomed to higher standards of living should be allowed higher earnings before being deprived of compensation benefits.
Kistin, supra at 564. The legislature, regardless of the dissent's vigorous assertions, could not have meant to depress all surviving spouses to any common denominator of living standards.Id. The judge in the instant case performed the fact-finding function that was his explicit statutory charge under § 31 with great precision. His decision therefore cannot be characterized as "contrary to law."
Decision affirmed.
_________________________ Susan Maze-Rothstein Administrative Law Judge
_________________________ William A. McCarthy Administrative Law Judge
Filed: August 20, 1996
This person earning more than $37,000 a year with no extraordinary expenses is in fact and in law "fully self-supporting". Yet the administrative judge found that she was "dependent". His decision was contrary to G.L.c. 152, § 31; it therefore should be reversed. See G.L.c. 152, § 11C ("The reviewing board shall reverse the decision of an administrative judge . . . if it determines that such administrative judge's decision is . . . contrary to law").
The undisputed material facts are amply set forth in the administrative judge's decision as follows: The surviving spouse worked full time as an office manager/nurse earning $37,000 to $40,000 per year ($19.20 an hour by 1994). (Dec. 542.) She owned a $255,000 home in North Andover where she resided with her four adult sons. None of the adult children contributed to the expenses of running the household. Id. The widow paid all the household expenses, including food for the children, utilities, home repair and mortgage. Over the time period in dispute, all but one adult child moved out. The remaining adult son lived rent-free in the in-law apartment attached to her house. Id. None of her children were in school full time. Id. In November of 1994, she purchased a 1995 Camry for $22,747. She annually took the family on a week long vacation at the beach. Id. She had no extraordinary expenses for necessities. Her expenses annually have exceeded her income. (Dec. 545-546.)
From these facts, the judge concluded that the surviving spouse, who had already received five years of benefits based on a conclusive presumption of dependency, remained entitled to survivor's benefits because she was in fact dependent and unremarried. He reasoned that middle class people who spend more than they earn may be "not fully self-supporting" as that term is used in § 31 of the Workers' Compensation Act so long as their expenses, including luxuries, are not unreasonable. (Dec. 547-553.) In so doing, he erred as a matter of law. This individual under these circumstances cannot be reasonably and rationally classified as "dependent" and "not fully self-supporting" within the meaning of G.L.c. 152, § 31.
Section 31 provides for continuing benefits to a surviving spouse beyond the period of conclusively-presumed dependency where the surviving spouse is "dependent" and "unremarried." The statute equates this status with being "not fully self-supporting." G.L.c. 152, § 31, as enacted by St. 1948, c. 666. The legal question presented here is what the Legislature intended by use of these terms.
The Workers' Compensation Act conclusively presumes a surviving spouse's dependency for the first two hundred and fifty weeks following the injured worker's death. G.L.c. 152, § 31, 32.
"Statutes are to be interpreted according to the intent of the Legislature ascertained from all its words by the ordinary and approved usage of the language, considered in connection with the cause of the enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." Taylor v. Trans-Lease Group, 34 Mass. App. Ct. 404, 612 N.E.2d 254, 257 (1993). I will explore each of these approaches to determine the meaning of the terms "dependent unremarried widow" and "not fully self-supporting" in G.L.c. 152, § 31.
I start with the dictionary definition of the terms "dependent" and self-supporting". Webster's Third International Dictionary defines the verb "support" as "to supply with the means of maintenance (as lodging, food or clothing) or to earn or furnish funds for maintaining his own and his brother's family, and "to provide a basis for the existence or subsistence of: serve as the source of . . . nourishment, provender, fuel, raw material, or sustenance . . ." It defines "sustenance" as the "means of support, maintenance, or subsistence"; a supplying or being supplied with the necessaries of life. It defines a "dependent" as one who is "unable to exist, sustain oneself . . . without the assistance or direction of another or others"; "lacking the necessary means of support and receiving aid from others (as from persons outside the immediate family or from a private or public welfare agency)"; "one that depends or is dependent; esp: one relying on another for support." Webster's Third New Int'l Dictionary (1981). These dictionary definitions are consistent with the interpretation gleaned from review of the history of the workers' compensation act.
When originally enacted in 1911, the Act contained no gender bias. Surviving spouses were conclusively presumed to be "wholly dependent" on the deceased employee and therefore entitled to a limited amount of benefits. St. 1911, c. 751, Part II, §§ 6, 7. This beneficence was short lived as expenses of the Act far exceeded early predictions. See 1947 House No. 1803 at 6.
By 1922, men were no longer presumed to be dependent on a deceased spouse; only widows were automatically provided for. St. 1922, c. 402, § 31. The duration of the widow's benefits was reduced from 500 to 400 weeks and terminated upon her remarriage.Id.; compare St. 1914, c. 708, § 3. The maximum benefit remained sex-linked and constant from 1927 through 1943. See St. 1927, c. 309, § 6; St. 1930, c. 294; St. 1934, c. 251; St. 1937, c. 325; St. 1943, c. 369.
During World War II, with the influx of women into the civilian labor market, the statutory benefits were sex-neutralized as widowers were added to the category of presumed dependents and became entitled to the same limited benefits as widows. St. 1945, c. 572. However, sex distinctions again appeared after the termination of the war with the return of men to the civilian work force and women to the home. In 1948, only widow's benefits were released from the maximum benefit cap.
The benefit cap was increased slightly from $6,400 to $7,500.
The 1948 Legislature was presented with various proposals for increasing death benefits. See 1948 Senate 228; 1948 House Nos. 291, 765, 989, 993, 2290. The proposals ranged from lifting the benefit cap for both men and women from $7,600 to $10,000, to eliminating the cap completely for widows so as to provide them with lifetime benefits. One proposal even provided widows with a dowery upon remarriage! The Legislature struggled with how to achieve broader coverage and extended benefits, while not impairing the competitive position of Massachusetts industry.
1949 House No. 993.
1948 Senate No. 228.
1948 Senate No. 228 originally provided for payment to the widow of two years' compensation in one lump sum upon remarriage. This provision was swiftly deleted. Journal of the House, April 1948, at 869.
In 1947 and 1948 the Legislature appointed Commissions to study the desirability of increasing workers' compensation benefits. 1947 House No. 1803; 1948 Senate No. 427.
The evil sought to be remedied by the 1948 Legislature is illustrated by the title of one bill, "An Act to Relieve Charity from the Duty of Supporting Widows of Employees Killed in Industrial Accidents (emphasis added)." 1948 House No. 291 (emphasis supplied). Under this proposal, the widow received lifetime benefits but those for men and adult physically or mentally incapacitated children were capped at $7,600. Another proposal extended benefits to adult children and widowers but only if they were mentally or physically incapacitated from earning, and then only for the duration of that incapacity. 1948 House No. 765. The 1948 Commission appointed to investigate the merits of these bills reported opposition to increasing benefits without further study. 1948 House No. 2248, as amended; Senate No. 427. An attempt to equalize the expanded benefits for widows and widowers, making them both available for life, was defeated. 1948 House No. 2290; 1948 Journal of the House, 1414, 1461-1463.
In his 1949 inaugural address, Governor Dever warned: "We would . . . do our working men and women poor service indeed, were we to put our industry to such a comparative disadvantage that it could no longer compete with the industry of other states and would be obliged to move elsewhere or cease operations altogether." 1949 Senate No. 1, 25-26.
The bill to increase death benefits successfully passed only after it was amended to reinsert the distinction between widows and widowers. 1948 House No. 2290; 1948 Journal of the House 1863, 1866; 1948 Journal of the Senate 1323, 1330. Extended benefits beyond the $7,600 cap were provided for the class of dependent unremarried widows and physically or mentally incapacitated adult children, "but only during such period as he or she is in fact not fully self-supporting." Id. The obvious assumption in the legislation was that women, who generally did not work for pay outside the home, were unable to provide for themselves, as were the handicapped. In contrast, able-bodied men were assumed to be able to support themselves through full time employment.
The treatment of men and women was not equalized until 1978 when widowers were added to the class of dependent unremarried widows and dependent adult handicapped children. St. 1978, c. 462, § 1. This 1978 amendment was proposed to equalize treatment between the sexes and not to broaden definition of actual dependency.
The legislative history is consistent with the dictionary definitions equating support to the provision of necessities. Commentators reviewing this provision agree that a widow should no longer receive § 31 benefits, beyond the period of presumed dependency, when her income apart from workers' compensation payments reaches a level commensurate with a reasonably decent standard of living. L. Locke, Workmen's Compensation § 379, at 459 (2d ed. 1981), citing Kistin, Dependency Benefits under the Massachusetts Workmen's Compensation Act, 5 Boston College Industrial and Commercial Law Review 530, 564 (1964).
The majority forswears normal methods of statutory construction and construes the terms "in fact" in the statute to shield the judge's decision from any effective appellate review. The legislative history belies their interpretation of these words. In 1948 House No. 765, one of the pieces of draft legislation noted above, the House had considered an amendment to § 31 allowing widows benefits for life, but only allowing widowers' and children's benefits so long as they are "physically or mentally incapacitated from earning . . ." (emphasis supplied). While this version was dropped, it evidences legislative debate over the concept of using "capacity to earn" as an appropriate standard of a survivor's entitlement.
The legislature added the words "in fact" to the proposed legislation so that it would not force widows into the labor market; the terms "self supporting" provided the counterbalance of denying lifetime benefits to widows who were not needy. The terms "in fact" clarified the distinction between earning capacity, a concept applied only to men and used elsewhere throughout the workmen's compensation act, and actual self-support, the more paternalistic protective standard applied to women. A widow actually, "in fact," had to be earning a living — not just have the capacity to do so — in order to lose her entitlement to continuing § 31 benefits.
There can be no dispute that, if the instant claimant quit her job tomorrow, she would be entitled to § 31 benefits, even under my interpretation of the statute.
In citing Kistin, the majority omits his comments consistent with this view. Kistin wrote:
The standard of "incapacity to work" is employed in sections 34, 34A and 35 as a basis for the payment of compensation to injured employees. The legislature, though obviously aware of this standard, deliberately chose not to apply it to the widow's benefits provision. By the use, instead, of the words "in fact fully self-supporting," the legislature clearly intended that the unemployed widow need show nothing more than her unemployment in order to continue to receive benefits after the statutory maximum had been reached.
Kistin, supra, at 563.
By use of the words "in fact", the legislature drew a distinction between actual self-support and presumptive self-support based on earning capacity. There is no indication that the legislature intended self-support to mean a wholly subjective sliding scale, without reference to "a subsistence standard plus reasonable allowance for some of the amenities of life enjoyed by the widow prior to the death of the employee." Kistin, supra, at 564.
The interpretation that an adult who can provide himself with the necessities of life is not "dependent" and is "self-supporting" is well established in the common law. An adult alcoholic was viewed as self-supporting even though he lived with his parents because he had been employed off and on and had previously lived away from home. McDonald v. Lavery, 27 Mass. App. Ct. 1108, 1109-1110, 534 N.E.2d 1190, 1191-1192 (1989). A divorcee was viewed as self-supporting when gainfully employed, pursuing a career, and owning a house. Liebson v. Liebson, 412 Mass. 431, 589 N.E.2d 1229 (1992). An adult child who lived with his parents was held not to be dependent on them for support because he was employed and paid room and board. Monahan v. Town of Metheun, 408 Mass. 381, 389, 558 N.E.2d 951, 957 (1990). Similarly, a minor child serving in the Navy was described by the court as self-supporting and therefore not entitled to child support. Sawyer v. Kuhnle, 324 Mass. 53, 54-55, 84 N.E.2d 546, 547 (1949). The Legislature has statutorily taken a similar view. See, e.g. G.L.c. 201, § 16B (self-supporting mentally retarded adult may be exempt from conservatorship). The notion that an individual with high actual earnings could be considered "not fully self-supporting" is foreign to our common law jurisprudence and constitutes a radically expansive interpretation of dependency.
Such an expansive interpretation finds no support in the Workers' Compensation Act. The act provides for a minimum level of compensation, presumably adequate to support an injured worker. G.L.c. 152, § 2(11), 34 and 34A. The act caps weekly wage replacement benefits at a 100% percent of the statewide average weekly wage at the time of the injury. G.L.c. 152, § 1(10), 34 and 34A. The obvious conclusion is that the Legislature has determined that such an income level provides adequate funds to support an injured worker and that insurers should not be required to pay more. One may then wonder why an able-bodied surviving spouse should be considered "not fully self-supporting" with the amount of actual income deemed adequate to support a totally incapacitated injured worker.
The Act only requires insurers to pay weekly benefits where the worker is unable to earn pre-injury wages. Weekly benefits are not paid merely for the fact of physical injury. G.L.c. 152, § 34, 35; Scheffler's Case, 419 Mass. 251, 256 (1994).
I do not reach the question of where the cut off point is for § 31 eligibility. All that need be said is that at this widow's actual high income level, the legal barrier has been breached.
Our society has generally limited the obligation of nonrelatives to provide for another person's support to cases of financial necessity. The judge's decision here forces society to provide support to an individual who earns more than four times the minimum wage (one hundred and sixty-one per cent of the statewide average weekly wage) and has no extraordinary expenses for necessities. It bases the decision on the funds required to support a life style that includes $43 haircuts, $2,000+ beach vacations, cable television and a valuable large home. It erroneously focuses analysis on an income minus costs approach. Under that approach, even millionaires may qualify as dependents under § 31 if their spending exceeds their income! There is absolutely no reason to suspect that the Legislature intended such forced generosity.
Society as a whole bears the cost as the insurer's loss is passed through to employers in higher premiums and is subsequently charged to consumers through the higher cost of products. 1 Larson, The Law of Workmen's Compensation, § 2.20. There is also significant economic evidence that it is employees generally who actually bear the cost of workers' compensation, in the form of smaller wage increases than would otherwise occur. Some economists believe that high workers' compensation costs result in fewer job opportunities. G. Pascal Zachary, "Census Bureau Confirms Eroding Wages", Wall Street Journal, January 25, 1995, p. A2. This view animated the most recent workers' compensation reforms in 1991.
Conceivably high income alone would not disqualify an individual who had extraordinary uninsured medical expenses.
As the judge's factual findings demonstrate, such an approach invites a highly invasive review by the insurer of the minute details of a claimant's life.
The administrative judge's construction of § 31 is inconsistent with the previous history of the subject matter, the wording of the workers' compensation act itself, other Massachusetts statutes and intimations in court decisions. SeeFerullo's Case, 331 Mass. 635, 121 N.E.2d 858, 859 (1954). Neither the language of the statute nor case precedent permits a factual determination of dependency for this adult. As a matter of law, she is not factually "dependent" or "not fully self-supporting" and therefore the insurer cannot be ordered to contribute to her support.
The order of continuing § 31 benefits should be reversed.
_________________________ Suzanne E.K. Smith Administrative Law Judge
Filed: August 20, 1996