Harding v. Commissioner of Ins.
| Decision Date | 28 April 1967 |
| Citation | 225 N.E.2d 903,352 Mass. 478 |
| Parties | Alice R. HARDING v. COMMISSIONER OF INSURANCE et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Marvin K. Rasnick, Worcester (John F. Killeen, Worcester, with him), for petitioner.
Paul N. Gollub, Asst. Atty. Gen. (Herbert E. Tucker, Jr., Asst. Atty. Gen., with him), for Com. of Ins. and another.
Before WILKINS, C.J., and SPALDING, WHITTEMORE, CUTTER and REARDON, JJ.
This petition for a writ of mandamus seeks to require the respondents the Commissioner of Insurance and the Actuary of the Division of Insurance to approve the amount of accidental death benefits awarded by the respondent retirement board of the city of Worcester. A judge of the Superior Court filed findings of fact, rulings of law, and an order for judgment dismissing the petition.
The petitioner is the widow of Edward T. Harding, who had been a firefighter in the fire department of the city for fourteen years prior to September 3, 1958. On that date he filed with the respondent retirement board an application for accidental disability retirement. A member of the contributory retirement system, he received a wrist injury on October 13, 1950, while in the performance of his duties. A medical panel made a finding that he had post traumatic pain and a past arthrodesis of the right wrist and was incapacitated for further duty. On October 30, 1958, the respondent board voted to retire him for accidental disability. The board transmitted to the division a copy of its vote, the report of the medical panel, a form giving as 'Type of accident' the statement 'Possible fracture of right wrist,' and a computation of the retirement allowance. The computation was approved by the division.
On September 3, 1963, Harding died. In the following December the petitioner applied to the board for accidental death benefits under G.L. c. 32, § 9(1) (inserted by St.1945, c. 658, § 1.) 1 On July 30, 1964, the board voted to grant the application. There were available to the board the original file relating to retirement for accidental disability, a death certificate, and a hospital report. The last mentioned document set forth a final diagnosis of 'Carcinoma, right kidney with metastasis to lung, abdominal wall, and abdominal viscera'. The records of the board contain no finding that death was the natural and proximate result of the injury or hazard on account of which he was retired, although such a finding is required by § 9(1). There was no evidence presented to the board which would have warranted such a finding.
After its vote of July 30, 1964, the board transmitted the file to the division. The general counsel for the division twice wrote the board pointing to the legal requirement of the finding. No such finding was transmitted to the division, which has refused to approve the computation, not because of incorrect figures but because...
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