Case of Moss

• Decision Date: 30 June 2008
• Docket Number: SJC-10056.
• Citation: 889 N.E.2d 43,451 Mass. 704
• Parties: WAYNE R. MOSS'S (dependent's) CASE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

889 N.E.2d 43

451 Mass. 704

WAYNE R. MOSS'S (dependent's) CASE.

SJC-10056.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 6, 2008.

Decided June 30, 2008.

Brian J. Sullivan, Fall River, for the claimant.

Daniel S. Hendrie, Fall River, for the employer.

Edward Gainor, Somerville, for the insurer.

Paul F. Leavis, Boston, Adam J. Troupe, & J. Michael Conley, Braintree, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

BOTSFORD, J.

If an employee cannot testify in his or her own behalf in seeking workers' compensation benefits, how can the claim be proved? One answer to this question can be found in G.L. c. 152, § 7A (§ 7A), which establishes prima facie evidence of various elements of a workers' compensation claim when an employee has been rendered unable to testify by reason of injury or death occurring at the workplace. In this case, we examine the interaction between § 7A and G.L. c. 152, § 28 (§ 28), which provides for double compensation when an employee's injury results from the "serious and wilful misconduct" of an employer or supervisor. We agree with the conclusion of the Department judge of the Division of Industrial Accidents (department) that § 7A does not establish prima facie evidence of a violation of § 28. Based on that conclusion and on our review of the evidence presented at the hearing before the administrative judge, we affirm the decision of the department's reviewing board (board) upholding her denial of the § 28 double compensation claim at issue in this case.¹

1. Background. Wayne Moss (employee) was killed in a motor vehicle accident on March 26, 1999, while traveling from one job site to another in connection with his duties as an employee of M & M Movers (company). The employee was seated on the far right passenger side of the bench seat of a 1987 Ford F700 straight truck (Ford) owned by his employer. The driver, Ronald Clement, and the middle passenger, Paul Avila, were also employees of the company. Three other employees, Kenneth Robitaille, Albert Crapeau, and Tony DeJesus, were following the Ford in a separate vehicle.

The Ford was traveling in the left-hand, or inner, lane of a two-way road in Rhode Island when it was struck in the middle of its left side by a van pulling out of a driveway on the opposite side of the road. The front of the van went under the box of the Ford, causing the Ford to fall over onto its right side; the Ford slid along the road on its side for some distance before coming to a stop. When the Ford tipped over, the driver, Clement, held onto the steering wheel to avoid moving to the right, and he grabbed onto Avila, the middle passenger, whose arm was rubbing on the pavement through the open passenger door window. The employee, Moss, was ejected from the vehicle and trapped beneath it as it slid on its side; he died at the accident scene.

Following the accident, the employee's widow, Arlene Moss (claimant), applied for and has been collecting dependent death benefits under G.L. c. 152, § 31; this appeal relates to her claim for double compensation under § 28.² The claimant contended that the latch mechanism on the Ford's passenger side door was not operating properly, causing the door to open during the accident and allowing Moss to fall out. She alleged that Clement, the driver, or David Mello, the owner of the company, knew or should have known of the problem with the latch and that their failure to repair it constituted "serious and wilful misconduct" within the meaning of § 28. The administrative judge found that the employee's death was not caused by employer misconduct. She also concluded that § 7A did not apply to establish prima facie evidence that the accident was caused by the serious and wilful misconduct of an employer or supervisor. The board summarily affirmed the administrative judge's decision. The claimant appealed, and we transferred the case here on our own motion.

2. Applicability of § 7A to § 28. As has been indicated, § 7A establishes prima facie evidence of aspects of a workers' compensation claim.³ Invoking the substance of the board's decision in Petit v. Westvaco Corp., 8 Mass. Workers' Comp. Rep. 228 231 (1994), in which the board concluded that § 7A creates prima facie evidence that where an employee dies on the job, the death was caused by the serious and wilful misconduct of the employer, the claimant contends that the administrative judge erred in failing to interpret § 7A to create prima facie evidence that this case falls within the provisions of § 28.⁴ It is not entirely clear whether the board continues to adhere to the broad language of its Petit decision, in light of the fact that in the instant case, the board summarily affirmed the administrative judge's decision without registering any disagreement with her conclusion that § 7A did not apply to § 28. Nevertheless, we address the line of board decisions of which Petit is a part because those decisions may indeed continue to represent the board's interpretation of § 7A, and in any event, they form the basis for the claimant's argument. We begin, however, with a review of § 7A and this court's discussion of the section in Anderson's Case, 373 Mass. 813, 370 N.E.2d 692 (1977), because that case lies at the heart of the board's decisions.

Section 7A is designed "[t]o aid the victim[ ] of an unwitnessed accident" who is unable to testify and therefore has difficulty meeting the burden of proving entitlement to compensation under G.L. c. 152. L.Y. Nason, C.W. Koziol, & R.A. Wall, Workers' Compensation § 17.4 (3d ed. 2003). See id. at § 10.11. The section by its terms establishes prima facie evidence of four separate aspects of a workers' compensation claim (1) "that the employee was performing his regular duties on the day of injury or death"; (2) "that the claim comes within the provisions of [c. 152]"; (3) "that sufficient notice of the injury has been given"; and (4) "that the injury or death was not occasioned by the willful intention of the employee to injure or kill himself or another." G.L. c. 152, § 7A. In Anderson's Case, supra, this court held that particularly the second of these, "the claim comes within the provisions of [c. 152]," reflected a legislative intent that where an employee was found dead at his job, this fact should establish prima facie evidence that the employee's death was causally related to his employment. The court stated:

"For a claim to be compensable it must arise out of and in the course of the employment. Clearly a causal relationship is required between the employment duties and the injury or death. In a case such as this one, where the employee was found dead at his place of employment, we construe the statute, § 7A, as establishing, inter alia, prima facie evidence of causal relationship between the employment and the injury or fatality. We believe that was the meaning intended by the Legislature, particularly in its use of the words, `and that the claim comes within the provisions of this chapter.'"

Anderson's Case, 373 Mass. at 816-817, 370 N.E.2d 692.

In a number of decisions before this case, the board has relied on the quoted passage from Anderson's Case, supra, to interpret § 7A as establishing, whenever § 7A has been called into play by testimonial incapacity resulting from an employee's injury or death on the job, prima facie evidence of the specific requirements of the section of c. 152 under which the claim was brought. Thus, in Zavalia v. Salem, 6 Mass. Workers' Comp. Rep. 276 (1992), a case in which the compensation claim was brought under G.L. c. 152, §§ 36 and 36A,⁵ and the employee had died following his injury, the board held that § 7A applied to create prima facie evidence that the employee's death was other than instantaneous and that he had suffered a loss of function, two elements of a claim for recovery under §§ 36 and 36A. The board reasoned that the use of the term "inter alia" in Anderson's Case, 373 Mass. at 816, 370 N.E.2d 692, suggested that "§ 7A transcends the issue of causation" and that "[h]ad the Legislature intended to limit the application of § 7A to a single section of chapter 152 or to only one element of compensability it presumably would have accomplished that purpose by use of a reference more narrow than `this chapter.'" Zavalia v. Salem, supra at 279. See Hayes v. Commonwealth, 7 Mass. Workers' Comp. Rep. 232, 235-236 (1993) (same). In Petit v. Westvaco Corp., 8 Mass. Workers' Comp. Rep. 228, 231 (1994), the board relied on the Zavalia and Hayes cases to conclude that "§ 7A applies to all sections of chapter 152 pertaining to liability," including § 28: "the effect of § 7A ... statutorily mandates the finding that § 28 applies to the injury ... and that [the] injury was caused by the serious and willful [mis]conduct of the employer, unless the [employer or insurer] produces evidence sufficient to warrant a contrary conclusion which is found by the judge to rebut the prima facie evidence of serious and willful misconduct."

Although "[t]he interpretation of a statute by the agency charged with primary responsibility for administering it is entitled to substantial deference," Gateley's Case, 415 Mass. 397, 399, 613 N.E.2d 918 (1993), ultimately the "duty of statutory interpretation is for the courts." Slater's Case, 55 Mass.App.Ct. 326, 330, 770 N.E.2d 534 (2002), quoting Police Comm'r of Boston v. Cecil, 431 Mass. 410, 413, 727 N.E.2d 846 (2000). See Walker's Case, 443 Mass. 157, 160-170, 819 N.E.2d 595 (2004). In this case, we conclude that the board's interpretation of § 7A, as articulated in the Zavalia, Hayes, and Petit cases, is not supported by either the plain language of the statute or this court's decision in Anderson's Case, supra.

We interpret § 7A's establishment of prima facie evidence that a claim "comes within the provisions of" c. 152...