May's Case

852 N.E.2d 1120, 67 Mass. App. Ct. 209, 2006 Mass. App. LEXIS 909
CourtMassachusetts Appeals Court
DecidedAugust 24, 2006
DocketNo. 05-P-1517
StatusPublished
Cited by4 cases

This text of 852 N.E.2d 1120 (May's Case) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
May's Case, 852 N.E.2d 1120, 67 Mass. App. Ct. 209, 2006 Mass. App. LEXIS 909 (Mass. Ct. App. 2006).

Opinion

Dreben, J.

This case involves the standard or definition of causation for purposes of receiving benefits for mental or emotional injuries under the workers’ compensation act. The act provides that “[pjersonal injuries shall include mental or emotional disabilities only where the predominant contributing cause of such disability is an event or series of events occurring within any employment.” G. L. c. 152, § 1(7A), as amended through St. 1991, c. 398, § 14. In describing the employee’s disabilities, the impartial medical examiner, Dr. Zamir Nestelbaum, stated in his report and on deposition that the work events at issue were “the major” or “the primary” cause of the employee’s major depression and that it is “more probable than not that it was the work incidents that, essentially, caused this woman to [210]*210become disabled.” The reviewing board of the Department of Industrial Accidents (board) ruled that the employee did not meet the statutory standard of § 1(7A) for emotional work injuries because “ ‘the predominant contributing cause’ means the work cause(s) must be greater than the sum of all non-work-related causes” (emphasis original). The board affirmed the decision of the administrative judge denying benefits to the employee. We reverse.

The employee had worked as a correction officer at the Massachusetts Correctional Institution, Framingham, for fifteen years. She claimed that after two separate incidents, one in 1999 and one in 2000, when officers were disciplined as a result of her reports of rule violations to superiors, she was harassed, called a “rat” by her coworkers, and told to rely on the convicts, not staff, for her personal safety. By 2002, she no longer was able to withstand the verbal abuse and harassment. She stopped working on June 21, 2002. These facts, as told by the employee, were recounted by Dr. Nestelbaum in his report, and he accepted them. He also wrote in his report:

“Regarding causality, although there were other factors that seemed to affect Ms. May during 1999 and 2000 such as her mother’s diagnosis with Alzheimer’s Disease, her being put into a nursing home and then her death as well as Ms. May’s building a house, it seems the major factor for causing her major depressive episode was her hostile work environment .... Another factor which should be considered is Ms. May’s apparent reliving of her father’s experience at being hounded out of jobs for no fault of his own, just for being black despite his doing a good job like Ms. May. She feels that like her father she’s been out of a job for doing her job well and like her father suspects that it’s not her job performance but her race, gender, and sexual orientation may be factors. She believes that she was treated unfairly like her father.”

In his deposition, on cross-examination, Dr. Nestelbaum, was asked:

“[I]s it more probable than not that it was the work incidents that, essentially, caused this woman to become disabled?”
He answered: “Yes, I think it — After I thought about these [211]*211different factors, I felt like the primary cause was the work incident.”
In denying the employee benefits, the administrative judge ruled:
“Even if the employee’s testimony is accepted in full, as it was by the impartial physician, this would be a case where the employee would fall just short of the standard. While Dr. Nestelbaum suggests that hostile work environment is a major cause of the emotional disability, he also identifies at least three other factors adding to the level of stress.. . .
“As outlined by the reviewing board in Siano v. Specialty Bolt and Screw Co., 16 Mass. Workers’ Comp. Rep. 237 (2002), while it is possible that there can be multiple ‘major’ causes of medical disability, there can be by definition but one ‘predominant’ cause. In this case, the hostile work environment, while identified as a major cause, seems to be one of several causes that also play a role in the emotional disability.”

Although the board acknowledged that the administrative judge erroneously referred to the doctor’s opinion as stating that the employee’s work environment was “a major” rather than “the major” cause of her disability, it quoted the foregoing reasoning of the judge, stating that “ ‘[mjajor’ does not necessarily mean ‘predominant.’ ” It noted that “the doctor never characterized the work events as ‘the predominant contributing cause’ of the disability” and the “employee’s counsel did not ask [him] whether the employment events were the predominant contributing cause of her Ghent’s emotional disability.”

As indicated earlier, the board concluded that “ ‘the predominant contributing cause’ means the work cause(s) must be greater than the sum of all non-work-related causes” (emphasis original). The board went on to say, citing Siano’s Case, 16 Mass. Workers’ Comp. Rep. 237, 240 (2002):

“We therefore reject the employee’s argument that medical testimony establishing the work incidents as ‘the major’ or ‘the primary’ satisfied, as a matter of law, the ‘predominant contributing cause’ standard for emotional injuries, where, as here, the employment was only one of several [212]*212acknowledged contributing causes. . . . ‘By definition there can be but one “predominant” cause .... There may, however, be multiple “major” causes.’ ”

We consider the board’s interpretation of the statutory standard incorrect. It does not accord with precedent or with ordinary lexical definitions. The board’s reliance on Siam’s Case, 16 Mass. Workers’ Comp. Rep. 237 (2002), is misplaced. In construing a different sentence of G. L. c. 152, § 1(7a),1 the board in that case noted the contrast in the statute between the words “major” and “predominant” and specifically found “instructive” that the statute used the word “a” before the word “major.” Id. at 240. Cf. Castillo v. Cavicchio Greenhouses, Inc., 66 Mass. App. Ct. 218, 221 n.8 (2006). We take this to imply that had the word “major” been preceded by the word “the,” the board would not have held that there could be several major, but only one predominant cause. Indeed, in Myers’s Case, 19 Mass. Workers’ Comp. Rep. 22, 24 (2005), the board stated, “Only one cause can be ‘the major’ cause, because use of the definite article ‘the’ means that the cause is greater in importance than all others.”

The board’s present definition is also not in accord with the ordinary lexical meanings of the words “predominant” and “primary.” In Webster’s Third New International Dictionary of the English Language Unabridged 1786 (1993), “predominant” is defined as “having superior strength, influence, authority, or position,” while “primary” is defined as “first in rank or importance.” Id. at 1800. Similarly, in the American Heritage Dictionary of the English Language 1427 (3d ed. 1996), “predominant” is defined as “[hjaving greatest ascendancy, importance, influence, authority, or force,” and “primary” is defined as “[fjirst or highest in rank, quality, or importance, principal.” Id. at 1438. Other similar definitions are set forth in the margin.2

[213]

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Bluebook (online)
852 N.E.2d 1120, 67 Mass. App. Ct. 209, 2006 Mass. App. LEXIS 909, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mays-case-massappct-2006.