Lopes's Case
Lopes's Case
Opinion of the Court
We are asked to interpret the provisions of G. L. c. 152, § 39, which addresses payment of worker’s compensation benefits in case of the death of the injured employee and, in particular, the insurer’s obligations to furnish legal services in connection with the appointment of a legal representative for the deceased employee. We conclude that an administrative judge in the Department of Industrial Accidents (department) erred in refusing a request by the employee’s sister, Theresa Lopes (Theresa), for an order directing the insurer, Zurich American Insurance, to furnish legal services in proceedings in the Probate
Background. On or about September 7, 2004, the employee sustained a disabling back injury while employed by Resource Management, Inc. Thereafter, the employee filed a claim for benefits pursuant to G. L. c. 152, § 35. After a conference conducted on June 2, 2005, pursuant to G. L. c. 152, § 10A, an administrative judge denied the employee’s claim. The employee appealed. The matter was assigned for hearing on March 7, 2006. Before the scheduled hearing, however, the employee died. The matter was accordingly continued in order to allow appointment of Theresa as administratrix of his estate.
On October 2, 2006, Theresa moved “to join a claim under [G. L. c. 152, § 39,] and to order the insurer to pay [her] $3,500.00 so that she may retain probate counsel.”
On March 6, 2007, Theresa did not appear and the employee’s counsel informed the administrative judge that no one had yet been appointed as administrator or administratrix of the employee’s estate. In furtherance of Theresa’s request for an order directing the insurer to provide funds to allow her to retain counsel for probate proceedings, the employee’s counsel argued that “[Theresa] at this time is indigent and requests again an order under Section 39 that the insurer pay for or set her up as the representative of the estate. I feel the motion to dismiss at
Discussion. A claimant’s right to receive worker’s compensation benefits is not extinguished by the claimant’s death; instead, it becomes an asset of the estate. See Carlson’s Case, 355 Mass. 131 (1969). See also Brek’s Case, 335 Mass. 144, 145 (1956); Therrien’s Case, 2 Mass. App. Ct. 795 (1974). See generally Nason, Koziol, & Wall, Workers’ Compensation §§ 16.6, 22.9 (3d ed. 2003) (Nason, Koziol, & Wall).
In pertinent part, G. L. c. 152, § 39, as amended through St. 1987, c. 522, § 6, provides:
“When the appointment of a legal representative of a deceased employee or dependent... is required to comply with this chapter, the insurer shall furnish or pay for legal services rendered in connection with the appointment of such legal representative ... or in connection with his duties, and shall pay the necessary disbursements for such appointment, the necessary expenses of such legal representative . . . , and reasonable compensation to him for time necessarily spent in complying therewith. Said payments shall be in addition to sums paid for compensation.”
In construing the language of a statute, the words of the statute must be given their plain and ordinary meaning in accordance with the approved usage of the language. See McCarty’s Case, 445 Mass. 361, 364 (2005). As set forth in § 39, supra, the insurer’s obligation to assist in the appointment of a legal representative is not limited to reimbursement for the cost of services previously paid by a deceased employee’s appointed representative. Section 39 expresses the obligation disjunctively: “the insurer shall furnish or pay for legal services rendered in connection with the appointment of such legal representative” (emphasis added).
There appears to be no dispute that appointment of a legal
The decision of the reviewing board is vacated, and the matter is remanded to the department for further proceedings consistent with this opinion.
So ordered.
The description of the motion (as well as its disposition) is taken from the administrative judge’s subsequent decision dismissing the claim for lack of prosecution. The judge’s order also refers, without further description, to a motion by the “employee” (then deceased) for an order “under Section 39,” which the judge denied on January 9, 2007. Neither motion is in the record before us.
The docket is unclear regarding the date. See note 2, supra.
Section 39 does not specify how the insurer’s obligation to “furnish” such services may be discharged. We assume that the insurer would fulfil its obligation by engaging an attorney on behalf of the putative representative.
The insurer does not contend that its obligation to facilitate the appointment of a legal representative for an employee who dies before resolution of his claim is contingent on a meritorious claim for benefits. The statute contains no suggestion that the obligation is contingent in any such manner.
Since the written motions are not in the record, we do not know whether they requested only payment of an advance toward legal fees, or included a request in the alternative that the insurer furnish the necessary services. If the written motions did not include a request that the insurer furnish the services as an alternative to payment of a retainer, the first such request would have occurred at the March 6, 2007, hearing. However, even if that were the case, it was error for the administrative judge to deny the request and instead order the claim dismissed for want of prosecution, without previous warning that such a drastic sanction was in store. Of course, it would be preferable if, in response to a written request seeking only an advance payment of fees, an administrative judge would suggest reframing the request into one for the services themselves.
Our disposition of the case makes it unnecessary to reach the question whether it would have been error for the administrative judge to order the payment of such fees in advance, and we decline to do so on the present record. We note, however, that there is nothing in the record to substantiate that the amount requested was an appropriate or reasonable amount for the services required to effectuate the appointment of a legal representative for the deceased employee. Moreover, though Theresa grounded her request on her claim that indigency prevented her from seeking such appointment without an advance by the insurer of the requested funds, there is nothing in the record to substantiate her claim of indigency, much less that she could not achieve the desired appointment without the requested funds. We note that she enjoyed the assistance of counsel before the administrative judge, and in this appeal.
The version of the statute applicable to Mellon’s Case imposed the obligation to furnish or pay for legal services only where the appointment of a legal representative was “not otherwise necessary.” Mellon’s Case, 231 Mass. at 401.
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