SILVA v. << (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Adelino Silva appeals from a decision of the reviewing board of the Department of Industrial Accidents (DIA), affirming an administrative judge's denial of Silva's claims for workers’ compensation benefits. We affirm the DIA's decision on the ground that Silva's heart attack, which did not occur until three weeks after the termination of his employment, did not “arise out of and in the course of his employment,” as required by G. L. c. 152, § 26.

In 2007, Silva was hired by Atlantis Charter School as a night custodian. Silva's employment was terminated on July 9, 2015. Twenty-one days later, on July 31, 2015, Silva suffered a heart attack while mowing his lawn at home. At the time, Silva had a history of preexisting hypertension, and had neglected to take his blood pressure medication for several months.

On January 15, 2016, Silva filed two claims for workers’ compensation benefits. The first alleged that he suffered a workplace injury on August 28, 2014 (the date of an alleged negative interaction with his supervisor), which resulted in emotional and psychological harm. Silva's second claim alleged that he suffered a workplace injury on July 9, 2015, the date on which his employment was terminated. Silva claimed that this injury also resulted in emotional and psychological harm, as well as in the heart attack. Both claims were heard together by an administrative judge, who concluded that the employer was entitled to the “bona fide personnel action” defense, G. L. c. 152, § 1 (7A). Silva appealed that decision to the DIA. The DIA concluded that, although the administrative judge mistakenly applied the “bona fide personnel action” defense to Silva's claim for physical injury, the administrative judge's denial of benefits for that injury should nonetheless be upheld given the judge's subsidiary findings of fact. The DIA also affirmed the administrative judge's denial of benefits for Silva's alleged psychological and emotional harm.

This appeal followed, in which Silva challenges only the denial of his claim for benefits based on the physical injury of his heart attack. In essence, Silva argues that the administrative judge's credibility determinations regarding Silva's expert's medical testimony were erroneous and, accordingly, the DIA should not have relied on them to conclude that the judge's legal error regarding the “bona fide personnel action” defense was harmless. In addition, Silva argues that, even though his heart attack occurred three weeks after his employment ended, it nonetheless took place in the course of his employment. We turn to the latter argument first and, deciding it as we do against Silva, need not reach the former.

“In order for an injury to be compensable, the injury must not only ‘arise out of’ but also ‘in the course of’ employment.” LaRocque's Case, 31 Mass. App. Ct. 657, 658 (1991), quoting G. L. c. 152, § 26. “Generally, termination of employment extinguishes an employer's liability for an injury to an employee which occurs after his discharge,” but liability may lie if “the post-termination activity is closely related to the employment, both in time and place.” Id. at 659. Here, Silva's heart attack occurred while mowing his lawn at home three weeks after his termination; this activity cannot be said to be closely related -- either in time or place -- to his employment as a custodian at the Atlantis Charter School. See id. at 659-660 (workers’ compensation statute did not cover at-home heart attack that occurred two weeks post-termination). Contrast Zygmuntowicz v. American Steel & Wire Co., 240 Mass. 421, 423-424 (1922) (workers’ compensation coverage extends to employee injured on employer's premises while winding up affairs post-termination).

Whether an injury arises out of and in the course of employment is a question of fact. Corraro's Case, 380 Mass. 357, 359 (1980). The administrative judge's findings “must be sustained if there may be found from the evidence any facts or combination of facts that would support it. It is the exclusive function of the [administrative judge] to consider and weigh the evidence and to ascertain and settle the facts.” Chapman's Case, 321 Mass. 705, 707 (1947). As we have said, Silva's heart attack occurred three weeks after his termination while mowing his lawn at home. Moreover, the administrative judge found that Silva's primary care physician's records do not mention stress or anxiety at work, and that Silva had acknowledged at his last physician visit that he was not depressed or feeling hopeless. The judge also found that Silva had been diagnosed with hypertension in 2007, and that (contrary to his claims) he had not consistently taken his medication to treat that condition. Moreover, immediately after his termination, Silva had applied for, and received, another job at Stop & Shop, but was not allowed to start because of his excessively high blood pressure and because he had not taken his blood pressure medication for months. On the morning of his heart attack, Silva's blood pressure was measured several times, and he was advised to monitor it at home and to contact his physician a few days later if it remained above a certain level. Silva has not shown that the administrative judge's findings were clearly erroneous, or that it was arbitrary or capricious to conclude that Silva's heart attack was not causally related to his termination. See Carpenter's Case, 456 Mass. 436, 439 (2010), quoting Scheffler's Case, 419 Mass. 251, 258 (1994) (“we consider ‘whether the decision is factually warranted and not “[a]rbitrary or capricious,” in the sense of having adequate evidentiary and factual support and disclosing reasoned decision making’ ”).

Decision of reviewing board affirmed.