17 Mass. App. Ct. 598

Benjamin Liberman’s (guardian’s) Case.

Suffolk.

February 9, 1984.

— March 7, 1984.

Present: Grant, Brown, & Perretta, JJ.

John J. Nolan for the guardian.

Gerard R. Kineen for the insurer.

Grant, J.

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. 317,1 the in*599surer paid all the legal and other expenses incident to the appointment as guardian. Since the appointment, the insurer has been making § 31 payments of $40.00 a week to the guardian for Danny’s benefit.

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.2 A single member of the Industrial Accident Board, after hearing, concluded that both types of claim were comprehended within the scope of G. L. c. 152, § 39, and ordered the insurer to pay the guardian a total of $2,580 a year, commencing with the date of his appointment and continuing until such time as Danny ceases to be a dependent within the meaning of §§ 31 and 32 or the guardianship is terminated, whichever first occurs. The reviewing board affirmed the decision of the single member. A probate judge sitting in the Superior Court entered a judgment denying *600and dismissing both the guardian’s claims. The guardian has appealed.

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).3 Thus, those sentences have no application to the situation in which a minor dependent already has a guardian or there is some other reason for the appointment of a guardian, such as that the dependent has property apart from workmen’s compensation benefits which needs to be administered. All this strongly suggests that the only purpose of the third and fourth sentences of § 39, so far as they are concerned with the appointment of a guardian, is to require the insurer to pay for the actual expenses of a guardianship when the only justification therefor is the insurer’s payment of § 31 benefits.

The single member adverted to the statutory history of those two sentences4 but failed to note that the particular legislation which brought guardians and conservators within their scope (St. 1937, c. 317) bore a title (“An Act requiring insurers under the workmen’s compensation act to pay the cost of appointment of guardians and conservators of employees or dependents”) which does not support his expansive interpretation of the sentences. We have found no *601section of c. 152 in which the Legislature has evinced an intention to compensate or otherwise reward a natural guardian for nurturing the educational, moral, social or physical well-being of a minor who qualifies as a dependent under § 32. No reason is readily apparent why a legal guardian should be singled out for more favorable treatment.

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.

Liberman’s Case
17 Mass. App. Ct. 598

Case Details

Name
Liberman’s Case
Decision Date
Mar 7, 1984
Citations

17 Mass. App. Ct. 598

Jurisdiction
Massachusetts

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