No. 00754295 (1999). EMPLOYEE: Frank Eifler.

• Case Date: December 13, 1999
• Court: Massachusetts

Massachusetts Workers Compensation 1999. No. 00754295 (1999). EMPLOYEE: Frank Eifler COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: Frank Eifler CLAIMANT: Evelyn Eifler EMPLOYER: Flintkote, Inc. INSURER: American Mutual/Mass. Insurers Insolvency FundBOARD NO. 00754295REVIEWING BOARD DECISION (Judges Smith, McCarthy and Wilson)APPEARANCES Michael McDeavitt, Esq. for the widow at hearing; David J. McMorris, Esq., for the widow on appeal David Cronin, Esq. for the insurer at hearing; Timothy F. Nevils, Esq., for the insurer on appeal Smith, J. Evelyn Eifler, the claimant widow of Frank Eifler, appeals from a decision denying her claim for § 31 dependency benefits and § 30 medical benefits, but awarding burial expenses. 1 The judge held that the widow was not entitled to dependency benefits because her husband voluntarily retired before the symptoms from his work-related asbestosis became apparent. He further held that the claim for medical bills was barred by the statute of limitations. Because we conclude that these holdings are contrary to the applicable law, we reverse those portions of the decision and award § 31 widow's benefits and § 30 adequate and reasonable medical and hospital services needed for treatment of the employee's asbestosis. The underlying facts are not in dispute. Frank Eifler was last exposed to asbestosis during his employment for Flintkote on February 15, 1966. (Dec. 10, 17.) His average weekly wage on that date was $92.31. (Agreed upon Statement of Facts dated August 27, 1998.) Flintkote was then insured by American Mutual. (Dec. 7.) That insurer subsequently became insolvent and has been represented in this proceeding by the Massachusetts Insurers Insolvency Fund. (Dec. 1.) After leaving the employ of Flintkote, Eifler worked for various employers until 1975 when he became self-employed. He retired from all forms of employment in 1982 at the age of 63. (Dec. 6.) Three years after his retirement he was diagnosed with asbestosis, causally related to exposure to asbestos in the 1960's. By at least February 20, 1985, Eifler was aware of the causal connection between his disability and employment at Flintkote. Id. He did not file any claims for weekly compensation or medical benefits. Eifler died on March 15, 1994 as a result of pulmonary asbestosis. (Dec. 6.) Eifler's widow filed the pending claims after his death. (Dec. 7.) The insurer raised a statute of limitations defense. Although the judge found the defense barred the medical claim, he ruled that the widow's rights did not vest until the date of death; therefore her claims for dependency benefits and burial expenses were not barred by the statute of limitations. However, the judge declined to award § 31 dependency benefits on other grounds. He reasoned that since Eifler had retired in 1982, he had effectively withdrawn from the labor market and was earning no wages in the 52 weeks prior to the time his disease became incapacitating; Eifler was not an employee in service of another at the time of his incapacity and subsequent death, as defined by § 1(4). (Dec. 11.) The judge concluded that the claim for § 31 dependency benefits was moot, "since no wages were lost as a result of his accepted industrial injury at any time pertinent to this claim." Id. He further explained: "When Mr. Eifler became incapacitated thirty years after his industrial exposure, his actual loss of earnings was non-existent, since he had voluntarily retired from the workforce twelve years prior to his becoming incapacitated." (Dec. 15.) "An 'average weekly wage' has no meaning if it does not 'produce an honest approximation of [the employee's] probable future earning capacity.' As of March 7, 1994, when Mr. Eifler was admitted to the Hart County Hospital for this condition, he had no probable future earning capacity since he was then age 74 and had been voluntarily retired from all employment for twelve years." Id. To award benefits based upon his last wages "would produce an irrational result that the Legislature did not intend- replacement of 'lost wages' to an individual who was no longer working by his own volition and was receiving both pensions and Social Security benefits...