Brewster v. S.D. Warren Company– Where the ALJ found former 39 M.R.S.A sec. 58 to be unambiguous and its plain language provided that dependency is determined as of the date of injury and not the date of death, a split Appellate Division affirmed the granting of a Petition for Award-Fatal for Mrs. Brewster, who, at the time of the employee’s death, had been divorced from the decedent employee for over 20 years and remarried for 11 years.In Brewster (Dec. No. 25-3), Mrs. Brewster was married to employee Nadeau when he injured his back in 1985. The sequela of the injury led to Mr. Nadeau becoming bedridden and developing pressure sores many years later, leading to a fatal infection in 2020. Mr. and Mrs. Nadeau became divorced in 1997 and the ex-Mrs. Nadeau married Dr. Brewster in 2011. Despite denying some of the employer’s discovery requests into financial interactions between the Brewsters, the ALJ found that Mrs. Brewster did not become dependent on Dr. Brewster. The ALJ accepted Mrs. Brewster’s testimony that she and Dr. Brewster each contributed equally to a joint account to fund their living expenses and kept other finances separate.

The employer argued that former sec. 58 was drafted to provide “If death results from the injury, the employer shall pay the dependents of the employee, dependent upon his earnings at the time of injury, a weekly payment…” to include the word dependent twice and that use of the word twice in the sentence must be given meaning, and that meaning was in order qualify as a dependent for death benefits the petitioner must be a dependent at the time of death, and then establish dependency at the time of injury. Otherwise use of the word dependent twice has no meaning. The Legislature would not have inserted the word unless it intended each use to have meaning. dependence at both the date of injury and the date of death. Because Mrs. Brewster was not dependent on Nadeau at the time of death, she did not qualify as a dependent for an award of death benefits according to the employer.ALJ’s Rooks and Chabot held the ALJ was correct that sec. 58 was unambiguous and the plain language required dependency at the time of injury only. While they agreed with the ALJ that the employer presented strong policy arguments against an award of death benefits where the dependent did not suffer economic loss, that was an issue for the Legislature to resolve.

ALJ Sands dissented, concluding that sec. 58 was ambiguous and therefore the ALJ erred by not looking to the Legislative intent. Finding nothing in the Legislative history to suggest the Legislature would find this result rational, ALJ Sands would have vacated the ALJ decision.

 

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Daniel F. Gilligan