Decision  Joseph McDonough (deceased) and Martha McDonough (claimant) v. Boston Edison

Date:	04/05/2000
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 000328-97
Location:	Boston

• Employee: Joseph McDonough (deceased) and Martha McDonough (claimant)
• Employer: Boston Edison
• Self Insurer: Boston Edison

LEVINE, J. The self-insurer and the widow of the deceased employee ("claimant") both appeal from a decision in which an administrative judge (1) found that the self-insurer was liable for the decedent’s asbestosis disease, but (2) denied and dismissed the claim for §31 death benefits. The self-insurer challenges the judge’s finding of a work-related asbestosis condition. We summarily affirm the decision as to the judge’s determination of the self-insurer’s liability for that condition.¹ The judge denied claimant's §31 claim because the employee had voluntarily retired before onset of the asbestos-caused symptoms and he had no earnings in the year preceding his death. We agree with the claimant that the denial of §31 benefits is contrary to law, because the judge failed to apply the conclusive presumption of dependency, even though he had found it applicable. We reverse the denial of §31 benefits, and order that such benefits be paid at the rates mandated by §35C and 452 Code Mass. Regs. § 3.02.

¹ Without objection, several witnesses testified to the presence of asbestos in the workplace. See, e.g., February 13, 1998 Tr. pp. 31, 34, 35, 48-49, 51, 60, 68, 71-72. See Freyermuth v. Lutfy, 376 Mass. 612, 620 n. 8 (1978) (unobjected to hearsay evidence "was entitled to be considered and given its appropriate evidentiary value"); O’Kane v. Travelers Ins. Co., 337 Mass. 182, 184 (1958) (unobjected to evidence entitled to its probative force). Contrast Patterson’s Case, 49 Mass. App. Ct. __, __ (slip opinion February 18, 2000) (none of the sources relied on by the impartial physician "provided an iota of expert or admissible evidence regarding the actual, as opposed to the hypothesized, presence of latex or any other asthma-causing substances in the hospital . . . . As such [the impartial physician’s opinion] was merely an unsubstantiated opinion based on assumed facts not established by the admissible evidence").