17 Mass. App. Ct. 598 | Mass. App. Ct. | 1984
The employee in this case was shot and killed in 1970 while engaged in the performance of his duties as an attendant in a parking garage in Boston. The employer’s workmen’s compensation carrier accepted the case and commenced payments to the employee’s dependents under G. L. c. 152, §§ 31 and 32. The dependents included the woman to whom the employee was married at the time of his death and their two-year old son Danny. The widow died in 1977, and Danny’s maternal grandfather, the claimant in this case, was appointed by a Probate Court as Danny’s guardian, with custody of the person as well as the property. As required by the third and fourth sentences of G. L. c. 152, § 39, as amended by St. 1937, c. 317,
The guardian, with whom Danny lives, has submitted a claim against the insurer for the value of his services in driving Danny to and from a public school, a religious school, various social and sporting activities, doctors’ offices, a dentist, and various stores. He has also submitted a claim for the use of his automobile in connection with the foregoing.
Both the single member in his decision and the guardian in his brief have assiduously refrained from identifying any particular language in G. L. c. 152, § 39 (note 1, supra), which might support either of the guardian’s claims. Both authors appear to have overlooked the fact that the third and fourth sentences of § 39 are confined in their operation to instances in which the “appointment of a guardian ... of a dependent ... is required to comply with this chapter,” meaning G. L. c. 152. See Mellon’s Case, 231 Mass. 399, 400-402 (1918); Whittaker’s Case, 319 Mass. 582, 585-588 (1946).
The single member adverted to the statutory history of those two sentences
Nothing in § 39, or elsewhere in c. 152, imposes any duty on the guardian in this case to perform any of the services or incur any of the expenses for which he seeks to be compensated or reimbursed. In our view, the words “reasonable compensation to [the guardian] for time necessarily spent in complying therewith” relate to the performance of the guardian’s duties as the custodian of the ward’s property in collecting, managing, disbursing and accounting for payments which are made by the insurer under § 31. See Locke, Workmen’s Compensation §§ 399 and 465 (2d ed. 1981). We hold that the judge was correct in denying and dismissing both the claims advanced by the guardian in this case.
Judgment affirmed.
That section reads in its entirety as follows: “The compensation payable in case of the death of the injured employee shall be paid to his legal representative; or, if he has no legal representative, to his dependents; or,
It is important to understand that the guardian is not advancing any claim for his services in managing the ward’s money or other property or for his services or expenses in connection with the performance of his duties under G. L. c. 206. To the contrary, he has improperly mingled the ward’s monies with his own and has never accounted to the Probate Court.
Nobody has pointed to any particular provision of c. 152 which required the appointment of the guardian in this case, but the case has been argued to us on the basis that the appointment was required. The guardianship may have been insisted on by the insurer so that there would be someone who could give valid receipts for the § 31 payments.
See St. 1911, c. 751, Part II, § 13; St. 1914, c. 708, § 7; G. L. c. 152, § 39 (1921); G. L. (Ter. Ed.) c. 152, § 39; St. 1937, c. 317.