Decision

Decision  Richard K. Kerstgens v. Babson College

Date: 05/22/2006
Organization: Department of Industrial Accidents
Docket Number: DIA Board No. 000590-96
Location: Boston
  • Employee: Richard K. Kerstgens (Deceased)
  • Claimant: Nancy Kerstgens, Administratrix
  • Insurer: NEEIA Compensation, Inc.

HORAN, J. The claimant3 appeals the administrative judge’s decision denying her claim for § 31 death benefits.4 The question of first impression is whether a daughter not conceived on the employee’s injury date, but in utero at the time of her father’s work-related death, may qualify as a dependent under the provisions of G. L. c. 152, § 32. The claimant attempted to establish dependency by utilizing the conclusive presumption in § 32(c).5 The judge found § 32(c) inapplicable to the facts of the case. We agree. However, we recommit the case for further proceedings under the catchall dependency in fact provision of the final paragraph of § 32.6 We also award § 33 burial benefits, and a § 13A(5) attorney’s fee, as the claimant did establish the employee’s death by suicide was work related under § 26A,7 a determination that is unchallenged.

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1 This case was initially assigned to a panel comprised of Judges Horan, Costigan and Fabricant. The proposed decision of that panel, with a dissenting opinion, was thereafter circulated to the remaining two members of this Board. These "off panel" members agreed with the proposed dissent. In keeping with our past practice when faced with this scenario, the panel was reconfigured to ensure that our decision reflected the view of the Board’s majority. This is similar to the practice of our Appeals Court’s handling of published decisions. See Commonwealth v. Gross, 64 Mass. App. Ct. 829, 830 at n.2 (2005).

2 The Massachusetts Academy of Trial Attorneys.

3 The claim was not filed by the child’s mother, but by the employee’s mother as administratrix of his estate. The insurer does not challenge her standing. See G. L. c. 152, § 39, which provides, in pertinent part:

The compensation payable in case of the death of the injured employee shall be paid to his legal representative. . . . [and] When the appointment of a legal representative of a deceased employee . . . or dependent who is a minor . . . 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. . . .

4 The claimant also sought § 33 burial benefits, and a § 13A attorney’s fee; insurer’s counsel, at oral argument, agreed these benefits should have been ordered once the judge found the employee’s death was related to the industrial accident.

5  General Laws c. 152, § 32(c) , provides, in pertinent part:

The following persons shall be conclusively presumed to be wholly dependent for support upon a deceased employee:

. . .

(c) Children under the age of eighteen years . . . upon the parent with whom they are living at the time of the death of such parent, there being no surviving dependent parent. . . . Children, within the meaning of this paragraph, shall also include any children of the deceased employee conceived but not born at the time of the employee’s injury, and the compensation provided for by this chapter on account of any such children shall be payable from the date of their birth.

(Emphasis added.)

6 "In all other cases questions of dependency, in whole or in part, shall be determined in accordance with the fact as the fact may be at the time of the injury, or at the time of his death . . . ."

7  General Laws c. 152, § 26A, provides in pertinent part:

Dependents shall not be precluded from recovery under this chapter . . . for death by suicide of the employee, if it be shown by the weight of the evidence that due to

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