HERBERT v. HARVARD UNIVERSITY, No. 05784294 (Aug. 24, 1998)

BOARD No. 05784294Commonwealth of Massachusetts Department of Industrial Accidents
Filed: August 24, 1998

REVIEWING BOARD DECISION

(Judges Wilson, Smith and McCarthy)

APPEARANCES

John M. Burke, Esq. for the employee.

Paul M. Moretti, Esq., for the self-insurer.

WILSON, J.

The claimant widow appeals from a decision in which an administrative judge denied and dismissed her claim for death benefits under § 31. The claimant asserts that her husband, the employee, suffered a fatal myocardial infarction while at work, which the judge should have found to be work-related by operation of G.L.c. 152, § 7A.[1] Because we consider that the judge appropriately weighed the evidence and concluded that the prima facie effect of § 7A was overcome, we disagree and affirm the decision.

The employee was a fund-raiser for Harvard University in the Office of Development at the Harvard Medical School. The employee had worked at Harvard since 1985, around which time he began to experience manifestations of heart disease, which were diagnosed as dilated cardiomyopathy with episodes of PAT or SVT. (Dec. 7.) Early in 1989, the employee underwent cardiac testing that revealed left ventricular cavity dilation with left ventricular hypertrophy. (Dec. 8.) The employee contacted his primary care physician four times in the ensuing year and a half, with concerns about repeated episodes of cardiac arrhythmia. In 1991, the employee began treatment with Dr. Roman DeSanctis, a cardiologist, and was confirmed as having a significant left ventricular dysfunction. (Dec. 9.)

In 1992-1993, the administration of the Office of Development changed. The claimant alleged at the hearing that the new administration headed by an inexperienced fund-raiser, Peter Nessen, was a source of stress for the employee, for numerous reasons. The judge did not credit the claimant’s evidence as to the stressful new work environment and, instead, noted that there was absolutely no mention of work stress in the employee’s extensive medical treatment records, as compared with the frequent reference to personal and family stressors in those documents. (Dec. 12-14.) On the employee’s date of death, December 13, 1994, he was observed as being in good spirits at work. Later that day, the employee had a telephone conversation with his son. The parties stipulated that the employee and his son discussed family matters during that telephone call. The employee experienced a cardiac arrest at that time and died later that day, with the cause of death being listed as years of cardiomyopathy. (Dec. 14-15.)

The judge adopted the expert opinion of Dr. Sagall, who opined that emotional stresses do not hasten the type of heart disease which afflicted the employee. The judge also found, based on the claimant’s own testimony, that the employee had experienced no episode of heart disease symptoms in the ten days leading up to his death, and that his activities and appearance during that time were normal. The judge adopted Dr. Sagall’s opinion that, without such a precipitating event, the employee’s death was not related to his employment or any related stress, but from the natural progression of his pre-existing, non-work-related heart disease. (Dec. 17-18.)

The judge addressed the application of § 7A to the facts of this case, noting that the statutory prima facie effect of § 7A may be overcome by evidence sufficient to warrant a conclusion to the contrary.[2] See Anderson’s Case,373 Mass. 813, 816-817 (1977). (Dec. 15.) See supra, n. 1. The judge’s findings on both the lay testimony and the adopted expert medical testimony of Dr. Sagall set out above are more than sufficient to overcome the prima facie effect of § 7A. The judge’s denial of this claim for § 31 benefits was well supported by those subsidiary findings of fact.

The decision is affirmed.

So ordered.

_____________________ Sara Holmes Wilson Administrative Law Judge
_____________________ Suzanne E. K. Smith Administrative Law Judge
_____________________ William A. McCarthy Administrative Law Judge

FILED: August 24, 1998