Opinion
Board No. 088544-87
Filed: September 8, 1995
REVIEWING BOARD DECISION
(Judges Fischel, McCarthy, and Wilson)
Michael C. Akashian, Esq., for the employee.
David L. Cronin, Esq., for the insurer.
The employee was a 62 year old kitchen worker, who had been educated through the sixth grade in Greece, when he developed low back pain while lifting a garbage bag from a cart to a container on November 3, 1987. (Dec. 3). The self-insurer accepted liability for the industrial injury. The insurer thereafter filed a request to modify or discontinue § 35 benefits which was conferenced on October 21, 1992. The employee moved to join and the administrative judge granted the employee's motion to join a § 34A claim at conference. The administrative judge denied both claims and each party appealed from the order.
A hearing de novo was conducted before the same judge on April 17, 1993, prior to the receipt of the § 11A report. (Dec. 1). The employee was not examined by the § 11A impartial physician until March 28, 1994, nearly a year after the lay hearing. As we noted in O'Brien v.Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. 16 (filed January 26, 1995), it is inconsistent with § 11A to hold a hearing prior to the receipt of the report of the medical examination. For this reason, and for reasons below, we vacate the hearing decision.
At the hearing, the insurer raised the issue of disability and causal relationship. In addition, the insurer articulated that the employee was not entitled to § 35 benefits beyond the age of 65, pursuant to § 35E. The § 11A physician opined that the employee suffered a temporary aggravation of an underlying condition of degenerative arthritis of his spine (Dr. Salib Dep. 10-11); (Dec. 5), and that the employee, if disabled at all, was disabled as a result of having an arthritic condition and not as a result of a sprain injury suffered November 3, 1987. (Dr. Salib Dep. 11, 20-21); (Dec. 5). The employee filed a motion requesting that the § 11A report be found inadequate, and that he be allowed to submit further medical testimony. (Dec. 6). The judge denied the motion. (Dec. 6). The judge adopted the medical examiner's opinion that any disability the employee experienced bore no causal relationship to the work injury, and denied the employee's claim for benefits. (Dec. 7, 8).
§ 35E provides that:
Any employee who is at least sixty-five years of age and has been out of the labor force for a period of at least two years and is eligible for old age benefits pursuant to the federal social security act or eligible for benefits from a public or private pension which is paid in part or entirely by an employer shall not be entitled to benefits under sections thirty-four or thirty-five unless such employee can establish that but for the injury, he or she would have remained active in the labor market. The presumption of non-entitlement to benefits created by this section shall not be overcome by the employee's uncorroborated testimony, or that corroborated only by any of his family members, that but for the injury, such employee would have remained active in the labor market. Claims for compensation, or complaint for modification, or discontinuance of benefits based on this section shall not be filed more often than once every twelve months.
On appeal, the employee references our decision in O'Brien, and argues that by denying the employee the right to submit additional medical opinion, the employee was deprived of due process in that he had no means to meet his burden of proof as to causal relationship. An employee has the burden of proof concerning medical causality and every other element of his claim. Sponatski's Case, 220 Mass. 526 (1915); Foley's Case, 358 Mass. 230 (1970).
As we have stated in the past, we recognize our clear obligation to protect the due process rights of parties in litigation before the department. Umbrianna v. Wear Guard Work Clothes, 9 Mass. Workers' Comp. 306 (filed June 23, 1995). Where the judge's application of § 11A(2) prevents the employee from having the opportunity to meet his burden of proof concerning medical causality, we have concerns that, in application, § 11A may affect the constitutional rights of the parties by denying due process. See O'Brien v. Blue Cross/Blue Shield, supra at 26; Umbrianna v. Wear Guard Work Clothes, supra at 309. Resolution of this issue is a matter for the courts.
There is a second basis upon which the administrative judge's decision must be vacated. The judge's findings as to § 35E are inadequate. See § 11B. The judge merely recited that the employee's uncorroborated testimony regarding his intentions to work beyond 65 years of age did not overcome § 35E presumption of non-entitlement to benefits. (Dec. 7-8). The judge made no findings regarding the employee's life circumstances or factors which bore on the question of his intent to work after turning 65.
The judge did not have the benefit of our decision in Harmon v.Harmon's Paint Wallpaper, 8 Mass. Workers' Comp. Rep. 432 (filed December 30, 1994). In Harmon, we held that § 35E permits the employee to testify as to background facts and circumstances which, if found credible, would independently substantiate the employee's testimony regarding an intention to continue working after age 65. Accordingly, this issue requires further findings to ensure consistency with our decision in Harmon.
A case involving § 35E constitutional issues is currently pending before the Massachusetts Appeals Court. See Tobin's Case, 9 Mass. Workers' Comp. Rep. ___ (decision filed March 28, 1995).
We vacate the judge's decision. The case is returned to the Senior Judge for assignment to a different administrative judge for hearing de novo and for findings on the issues raised by the parties. The hearing shall be commenced no sooner than one week after the § 11A medical report has been received by the parties. See O'Brien v. Blue Cross/Blue Shield, supra. So ordered.
The judge who heard this case no longer serves with the Department.
Judges McCarthy and Wilson concur.
_____________________________ Carolynn N. Fischel Administrative Law Judge
_____________________________ William A. McCarthy Administrative Law Judge
_____________________________ Sara Holmes Wilson Administrative Law Judge
Filed : September 8, 1995