Date: | 05/22/2006 |
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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.