In this appeal, we are called on to decide a question left open when we previously considered this case, McDonough’s Case,
1. Background. Joseph McDonough began working for the Boston Edison Company in 1961 as a mechanic, primarily in its Massachusetts Avenue garage. He retired from thаt position in December, 1991, accepting a lump sum pension payment. In April, 1996, he was diagnosed with adenocarcinoma and asbestosis. He passed away the following month. His widow, the claimant Martha McDonough, sought benefits under G. L. c. 152, including mеdical expenses under §§ 13 and 30, burial expenses under § 33, and survivor’s benefits under § 31. After hearing, an administrative judge found that McDonough’s illness had been caused by exposure to asbestos fibers at his workplace, and that that exposure to asbestos occurred between the start of his employment in 1961 and December, 1978. (After December, 1978, testing conducted by the Occupational Safety and Health Administration found no asbestos fibers remaining in the garage.) As a result, McDonough’s date of injury for рurposes of workers’ compensation was December, 1978. See McDonough I, supra at 605, citing Squillante’s Case,
The board awarded the claimant benefits under §§ 13, 30, 31, and 33. With respect to the calculation of benefits under § 31, the board resorted to 452 Code Mass. Regs. § 3.02(1) (1999), which provided that if the worker was not employed as of the date of eligibility, benefits should be calculated based on the worker’s earnings as of the last date of employment. Under § 31, the claimant was thus awarded two-thirds of McDonough’s average weekly wage as of the date he retired in 1991. Liberty Mutual appealed the award of benefits under § 31.
In McDonough I, supra at 606, we held that because Mc-Donough had no weekly wage on the date of eligibility for benefits under § 31, the calculatiоn resulted in no payment to the claimant — two-thirds of zero equals zero. To the extent that the regulation, 452 Code Mass. Regs. § 3.02(1), provided otherwise, we held that it was invalid as contrary to the statute. McDonough I, supra at 607-608. However, we remanded the case to thе board to consider whether, notwithstanding the absence of a weekly wage on the date of eligibility, the claimant was entitled to the minimum payment described in § 31 (“in no instance shall said widow or widower, receive less than one hundred and ten dollаrs per week”). Id. at 608 n.6.
On remand, the board concluded that the claimant was entitled to that minimum benefit. Liberty Mutual appealed to a single justice of the Appeals Court, who reported the case to the full panel of that court. We transferred the case from the Appeals Court on our own motion in order to consider whether the minimum benefit described in § 31 is available even when the average weekly wage at the time of eligibility is zero. We conclude that it is, and we affirm the board’s decision to that effect.
2. Discussion. When reviewing the board’s decision we give “due weight to the experience, technical competence, and specialized knowledge” of the agency. G. L. c. 30A, § 14 (7). We exercise de novа review of questions of statutory construction, however, and we must overturn agency decisions that are not consistent with governing law. See Atlanticare Med. Ctr. v. Commissioner of the Div. of Med. Assistance,
The first paragraph of § 31 provides that “[i]f death results from the injury, the insurer shall pay the following dependents of the employee, . . . wholly dependent upon his or her earnings for support at the time of his or her injury, or at the time of his or her death.” Among the listed dependents are “the widow or widower, so long as he or she remains unmarried.” Id. Here, the claimant was married to and living with McDonough on the date of injury, December, 1978. There is no dispute that she was wholly dependent on his earnings at that time.
Liberty Mutual argues that because the claimant only became eligible for § 31 benefits upon McDonough’s death, her dependence on McDonough’s earnings at the time of his death is the only means by which she could qualify for § 31 benefits.
The sеcond paragraph of § 31 first provides for a benefit of two-thirds of the average weekly wage of the deceased employee. As explained in McDonough I, supra at 606, that calculation yields no benefits for the claimant, as McDonough had nо earnings at the date of eligibility (his date of death). However, after prescribing the two-thirds average weekly wage as the amount of benefit to be paid, the second paragraph of § 31 sets forth a proviso that “in no instance shall said widow or widower, receive less than one hundred and ten dollars per week” (emphasis added). We interpret the words “in no instance” literally, meaning that no circumstance or condition will operate to deprive the surviving spouse of the minimum benefit. See Rudenauer v. Zafiropoulos,
Liberty Mutual argues that to award minimum weekly compensation when the employee had no weekly wage at the time of eligibility would violate the limited wage replacement goals of the workers’ compensation act (act). See McDonough I, supra at 604; Letteney’s Case,
The board correctly interpreted § 31 to require minimum payments even whеn there was no weekly wage on the date of eligibility. We therefore affirm the decision of the reviewing board ordering the minimum weekly payment of § 31 benefits.
So ordered.
Notes
General Laws c. 152, § 31, provides, in pertinent part:
“If death results from the injury, the insurer shall pay the following dependents of the employeе, . . . wholly dependent upon his or her earnings for support at the time of his or her injury or at the time of his or her death, compensation as follows ....
“To the widow or widower, so long as he or she remains unmarried, a weekly compensation equal to two-thirds of the average weekly wages of the deceased employee, but not more than the average weeklywage in the commonwealth . . .; provided, however, that in no instance shall said widow or widower, receive less than one hundred and ten dollars per week . . . .”
Counsel for the claimant has filed a suggestion of death and moved that Mary A. Noonan, administratrix of the claimant’s estate, be substituted as the claimant in this matter. We take notice of the suggestion of death, and we allow the motion to substitute. We refer to the original claimant, Martha Mc-Donough, throughout this opinion.
By comparison, Liberty Mutual Insurance Company (Liberty Mutual) has consistently argued that, at the time of McDonough’s death, the claimant was not “wholly dependent upon [McDonough’s] earnings for support,” G. L. c. 152, § 31, because McDonough had no “earnings” after his retirement in 1991. Section 32 of the workers’ compensation act, G. L. c. 152, § 32, contains a conclusive presumptiоn that a wife is “wholly dependent for support upon a deceased employee” when she lives with him at the time of his death. Notwithstanding the fact that the § 32 presumption does not include any presumption with respect to dependence on “earnings” (but only presumes that the spouse is dependent “for support”), we previously stated that it applied to the claimant. McDonough’s Case,
We also note that, under G. L. c. 152, § 23, a spouse who claims any benefits under G. L. c. 152 loses the right to sue the employer for the wrongful death of the other spouse. See McLaughlin v. Stackpole Fibers Co.,
The claimant has requested and is entitled to reasonable attorney’s fees and costs incurred in this appeal, pursuant to G. L. c. 152, §§ 12 (3) and 12A. See Daly’s Case,