In re Dube's Case

• Decision Date: 12 September 2007
• Docket Number: No. 06-P-728.,06-P-728.
• Parties: Gilbert DUBE'S (dependent's) CASE.
• Court: Appeals Court of Massachusetts

872 N.E.2d 1171

70 Mass. App. Ct. 121

Gilbert DUBE'S (dependent's) CASE.

No. 06-P-728.

Appeals Court of Massachusetts, Suffolk.

Argued March 9, 2007.

Decided September 12, 2007.

William C. Harpin, Wakefield, for the insurer.

Andrew J. Schultz, Burlington, for the claimant.

Present: COHEN, MILLS, & KATZMANN, JJ.

KATZMANN, J.

In this workers' compensation case, an administrative judge awarded the claimant, Anne Dube, benefits pursuant to G.L. c. 152, §§ 9A, 13, 13A, 30, 31, 33, & 34, for her husband Gilbert Dube's (the employee) work-related back injury and subsequent related pain that led to his deteriorating mental condition, unsoundness of mind, and suicide. On appeal by the insurer from the award of death benefits under § 31, the reviewing board of the Department of Industrial Accidents (board) affirmed, holding that, pursuant to G.L. c. 152, § 26A, the claimant was entitled to recover on account of the employee's death by suicide, because it was causally connected to the unsoundness of mind resulting from his work-related physical injury. The insurer, Professional Liability Insurance Company, now appeals the board's decision. We affirm.

Background. The employee, a fifty-year old machine mechanic with a history of back trouble, worked at National Fiber Technology LLC (the employer). On November 7, 2001, he reinjured his back when, while on the job, he "jerked" loose a card stuck in a knitting machine. The employee attempted to return to work on a light duty basis on November 26, 2001, but was informed at that time that no light duty work was available. The employer terminated the employee's employment on December 4, 2001. On December 18, 2001, the employee committed suicide, leaving a note.

At the hearing, the claimant introduced medical evidence, credited by the administrative judge, indicating that the employee's November 7, 2001, back injury caused him to become clinically depressed, and that the December 4, 2001, termination exacerbated his depression to the point that the employee was acting irrationally when he committed suicide.¹ Moreover, the claimant offered additional evidence, including her own testimony credited by the administrative judge, confirming the change in the employee's behavior after the work-related injury. Based on this evidence, as well as consideration of the suicide note, the administrative judge found that the employee sustained a work-related back injury on November 7, 2001, and that the work-related injury was causally related to the employee's suicide. Although there also was medical evidence that it was the termination that "put [the employee] over the edge" and was the "predominant" cause of the depression that led to his suicide, the administrative judge's decision did not explicitly address the causal role played by the termination in prompting the employee to take his life.² In affirming the decision, the board stated:

"Here the adopted medical evidence supported the judge's award of death benefits, because the doctors causally related the suicide both to the work injury and to the termination. That Drs. Kelly and Chastain put more emphasis on the termination—that it was the "predominant" cause that "substantially aggravated" the work-related depression—does not affect this analysis. The claimant established the simple causal connection required under § 26A and rightly prevailed in her § 31 claim as a result."

Discussion. On appeal, the insurer asserts that the administrative judge and the board incorrectly applied the simple causation test in determining the relationship between the employee's work-related injury and his suicide. The insurer argues that the medical evidence only supports a conclusion that the employee's subsequent termination was the predominant contributing factor leading to the employee's suicide, and that the judge was required to consider and find that the termination was an independent, intervening event that broke the chain of causation beginning with the employee's back injury. Furthermore, the insurer claims that because the independent, intervening termination resulted in a wholly mental personal injury, we must apply the heightened causation standards set out in the third sentence of G.L. c. 152, § 1(7A), or the prohibition on recovery set out in the fifth sentence of that section, which bars recovery for mental or emotional disabilities arising principally out of a bona fide personnel action except when such action constitutes the intentional infliction of emotional harm.³,⁴ General Laws c. 152, § 26, states that "[i]f an employee . . . receives a personal injury arising out of and in the course of his employment, . . . he shall be paid compensation. . . ." "Dependents shall not be precluded from recovery under this chapter, nor shall the insurance company be relieved from making payment to the commonwealth under section sixty-five, for death by suicide of the employee, if it be shown by the weight of the evidence that, due to the injury, the employee was of such unsoundness of mind as to make him irresponsible for his act of suicide." G.L. c. 152, § 26A, added by St.1937, c. 370, § 2. The dispute in the present matter concerns whether death benefits are available under § 26A on a finding that the employee's work-related physical injury was a simple "but for" cause of his suicide, even if another independent (and, according to the insurer, noncompensable) event intervened.⁵ Based upon cases decided prior to the enactment of § 26A, it is the insurer's contention that an independent intervening event (in this case, the termination) may break the chain of causation, and that the judge should have confronted that issue and so found.

Beginning with Sponatski's Case, 220 Mass. 526, 108 N.E. 466 (1915), decisions predating the 1937 enactment of § 26A used the language of a tort-based independent intervening cause test in workers' compensation cases where the employee committed suicide. In Sponatski's Case, an employee received an injury in the course of and arising out of his employment through a splash of molten lead into his eye. He was treated at a hospital, when, as found by the Industrial Accident Board (IAB), "while insane, as a result of his injury, he threw himself from a window and was fatally injured." Id. at 527, 108 N.E. 466. In overturning the IAB, the court said that "[t]he inquiry relates solely to the chain of causation between the injury and the death," id. at 531, 108 N.E. 466, and that it was necessary to decide "whether the chain of causation between the injury and the death is broken by the intervention of some independent agency." Id. at 531-532, 108 N.E. 466. The question is whether "there is a new and independent agency which breaks the chain of causation arising from the injury." Id. at 530, 108 N.E. 466.

The intervening cause analysis in Sponatski's Case was controlling in cases of some vintage. See Panagotopulos's Case, 276 Mass. 600, 605, 177 N.E. 800 (1931) ("[t]he burden rested upon the employee of showing by a preponderance of evidence that his total incapacity . . . resulted from his original injury and not from an independent intervening cause"), citing Sponatski's Case, 220 Mass. at 528, 531-532, 108 N.E. 466. See also Tetrault's Case, 278 Mass. 447, 447-448, 180 N.E. 231 (1932) ("[t]he burden rested upon the claimant of showing that the employee's death [suicide] resulted from his injury and not from an independent intervening cause"), citing Panagotopulos's Case, 276 Mass. at 605, 177 N.E. 800. The insurer contends that under an intervening cause analysis, although the claimant established a simple causal relationship between the employee's work-related physical injury (here his back injury), the depression that led to his suicide, and his suicide, because there was medical testimony that also indicated that the employee's termination substantially aggravated his depression, the termination could operate as an intervening cause, breaking the chain of causation.

Since § 26A's enactment in 1937, Massachusetts appellate courts have not had the opportunity to address directly the effect under that provision of an intervening cause on the simple causation test. See Oberlander's Case, 348 Mass. 1, 4-5 & n. 1, 200 N.E.2d 268 (1964) (not addressing whether an intervening cause could have disrupted showing of simple causation; distinguishing updated language of § 26A in comparison to that in effect during Tetrault's Case); Lambert's Case, 364 Mass. 832, 832, 304 N.E.2d 428 (1973) (no question of intervening cause presented). In this case, though citing and quoting the independent intervening cause language in Tetrault's Case, supra, and Panagotopulos's Case, supra, the board rejected that causation standard, instead relying on several workers' compensation cases to hold specifically that simple causation is sufficient under § 26A. See Bemis v. Raytheon, 15 Mass. Workers' Comp. Rptr. 408 (2001); Rizzo v. M.B.T.A., 16 Mass. Workers' Comp. Rptr. 160 (2002). On this basis, the board permitted the claimant to recover, concluding "that a suicide is within the purview of § 26A if it is simply causally connected to the unsoundness of mind resulting from the injury, without having to show any particular quantity or quality of that cause. We consider this to be the case, even in view of intervening causally related events, such as the termination in the present case."

Regarding § 26A, the board's decision notes that the section was enacted in 1937 and, quoting from Oberlander, 348 Mass. at 5 n. 1, 200 N.E.2d 268, observes that it was enacted "unquestionably . . . in view of the rule laid down in Sponatski's Case, 220 Mass. [at] 530 and Tetrault's Case, 278 Mass. [at 448, 180 N.E. 231]." The board's decision notes that Sponatski had held that "where there follows as the direct result of a physical injury an insanity of such violence as to cause the victim to take his own life through an uncontrollable impulse...