Costa's Case
Costa's Case
Opinion of the Court
Gail Costa (claimant) has appealed from an adverse decision of the reviewing board of the Department of Industrial Accidents (board) denying her claim for benefits arising out of the death of her husband, Donald Costa. See G. L. c. 152, § 31 (death benefits) and § 33 (burial benefits). The issue before us is whether the provisions of G. L. c. 152, § 7A, as amended in 1991 (see St. 1991, c. 398, § 21, set out in the margin),
We recapitulate the summary of the material facts that appear in the decision of the board, supplemented by unchallenged facts found by the administrative judge.
On March 22, 1992, Costa arrived for work at 4:00 p.m. to start his eight-hour shift. Sometime before 5:00 p.m. he left the shop for a repair job in Westford. He did not feel well and he never arrived at the Westford job. Instead, he turned around and headed back to the shop. By coincidence, the claimant saw Costa, on his way back to the shop, parked by the side of the road. Costa told the claimant he did not feel well, and after returning the truck to the shop he returned home, had something
At the hearing before the administrative judge, Costa’s family physician, Dr. Jeffrey Byrne, testified that Costa’s work activities on March 22 contributed to his death. Dr. Lawrence Baker also testified for the claimant, expressing the opinion that Costa’s activities on March 22 were a major contributing factor to the fatal myocardial infarction. However, at his deposition, he was asked his opinion on the hypothetical assumption that there was no evidence of any exertion by Costa on March 22. Dr. Baker testified that in that event he would be unable to make a causal connection between Costa’s work and his myocardial infarction.
Dr. Elliot Sagall testified for the insurer. Based on the absence of any significant work activity on March 22, Dr. Sagall opined that Costa’s activities on that day did not contribute to Costa’s myocardial infarction.
The administrative judge rejected the claimant’s argument that § 7A was available. He concluded “that the connection, both in time and in substance, between the employee’s condition while at work on March 22, 1992[,] and his condition in the early morning hours of March 23, 1992, is not so direct and strong as to warrant a finding that the employee was ‘killed or found dead at his place of employment.’ ” Further, the judge denied the claimant’s §§ 31 and 33 claims; he adopted “the medical opinion of the insurer’s expert . . . [and found] that the employee’s death was not related to any work activity.”
The board overruled its prior decisions in Wyman v. Courier Citizen Co., 9 Mass. Workers’ Comp. Rep. 333, 340-341 (1995) (“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”), and Mills v. Light Metal Platers, 11 Mass. Workers’ Comp. Rep. 563, 565 (1997), and affirmed the decision of the administrative judge.
We review the board’s decision under G. L. c. 152, § 12(2), as amended through St. 1991, c. 398, § 32A, in accordance with the standards expressed in G. L. c. 30A, § 14(7)(a)-(d), (f),
The narrow question before us, not previously considered by our appellate courts, is whether the special provisions of § 7A — which permit a death claim to constitute prima facie evidence that the employee was performing his regular duties on the day of the incident, see note 3, supra — are available when, as in this case, the employee is neither killed nor found dead at his place of employment.
The claimant argues that “[b]y using the word killed [and taking that word to mean ‘every person that is dead has been deprived of life, or “killed” ’] and not limiting it those killed at their place of employment, the Legislature intended the [§] 7A presumption to apply to employees who are dead (‘have been killed’) as well as to employees who are found dead at their place of employment.”
We reject the argument. Without regard to questionable validity of the argument regarding § 7A prior to the 1991 amendment, it fails to recognize the change effected by the 1991 amendment. Prior to the 1991 amendment, § 7A provided that “where the employee has been killed, or found dead at his place of employment . . . ,” the presumptions are available. The 1991 amendment, inter alia, deleted the comma after the word “killed.” The effect of that deletion is that the phrase, “at his place of employment,” now qualifies the entire phrase, “where the employee has been killed or found dead . . . .” See Moulton v. Brookline Rent Control Bd., 385 Mass. 228, 232 (1982) (“punctuation . . . may be resorted to when it tends to throw light upon the meaning of the language”), quoting from Greenough v. Phoenix Ins. Co., 206 Mass. 247, 252 (1910).
Simply put, the statutory phrase — “killed or found dead at
Because Costa’s death did not occur at his workplace, § 7A was not available to the claimant, and for the reason stated herein, the §§ 31 and 33 claims must be denied.
Decision of Industrial Accidents Reviewing Board affirmed.
Section 7A, as appearing in St. 1991, c. 398, § 21, which is applicable to this case, provides in material part as follows: “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
Prior to the 1991 amendment, § 7A, as appearing in St. 1947, c. 380, amended by St. 1971, c. 702, provided, in material part, as follows: “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 the employee was performing his regular duties on the day of injury or fatality or death or disability and that the claim comes within the provisions of this chapter . . . .”
The facts appearing in the decision of the board follow closely the facts found by the administrative judge.
Clause (e) of § 14(7) having been omitted from § 12(2) of c. 152, we do not review to determine whether the board’s judgment was “unsupported by substantial evidence.” For this, reason, we do not review the finding of the administrative judge, undisturbed by the board, that the claimant did not carry her burden of showing that Costa’s death was causally related to a workplace injury.
The claimant’s argument would make § 7A available in all death cases: those employees who are “killed” as a result of any event, and those who are found dead at their place of employment, thereby rendering the required location — place of employment —• surplusage. Such an intent cannot be attributed to the Legislature. See Bartlett v. Greyhound Real Estate Fin. Co., 41 Mass. App. Ct. 282, 289 (1996).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.