Opinion
BOARD No. 010456-91
Filed: March 13, 1996
REVIEWING BOARD DECISION
(Judges Kirby, Maze-Rothstein and Smith)
APPEARANCES
Joseph M. Burke, Esq., for the employee
Salvatore J. Perra, Esq., for the insurer
The self-insurer appeals from the decision on its request to discontinue which ordered a continuation of the employee's § 35 partial compensation benefits at a reduced level. It challenges the administrative judge's finding that but for the employee's injury he would have remained active in the labor market, arguing that the presumption of non-entitlement to benefits found in G.L.c. 152, § 35E was not overcome. We find competent evidence in the record sufficient to overcome the § 35E presumption of non-entitlement, thus allowing the judge to exercise his judgment in deciding whether the employee would have remained in the labor force but for his industrial injury. We therefore affirm the decision.
G.L.c. 152, § 35E, as amended St. 1991, c. 398, § 63 provides:
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 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.
On February 3, 1991, Cognata, then sixty-three years of age, working as a toll-taker, suffered an injury arising out of and in the course of his employment. He received benefits under G.L.c. 152, § 34 until December 4, 1991 when, as a result of the self insurer's request to discontinue, an earning capacity was assigned and § 35 partial incapacity benefits were ordered. (Dec. 2.) Approximately eighteen months later, the self-insurer again moved to discontinue. At a March 4 1992 conference, the judge denied the application for discontinuance.
The self insurer appealed the conference order, arguing that as Cognata was at least sixty-five years old and had been out of the labor force for at least two years and was receiving old age benefits pursuant to the federal social security act, he was not entitled to benefits under § 35 of the state workers' compensation act.
Cognata testified that but for the industrial injury, he would have remained active in the labor market. He further testified that he went to work for the self-insurer in order to receive a pension and that he could not receive such pension unless he had worked ten years for the self insurer. The judge found that if Cognata had worked for the self insurer ten years, he would have been older than sixty-five. The judge concluded that this was evidence that Cognata would have remained active in the labor market after attaining the age of sixty-five. (Dec. 7.)
The judge relied on other testimony from Cognata that he actually sought work after the December 1991 conference order reducing his compensation benefits. At that time Cognata was sixty-four. He became sixty-five the following April 25th. Thus the judge found that as he was nearing his sixty-fifth birthday, he was actively searching for employment. (Dec. 8).
The record also contained corroborating evidence, in addition to the employee's testimony recited above. The parties stipulated that:
1. Employees of the self-insurer are not eligible for a pension until they have worked for the self-insurer a total of ten years.
2. There is no mandatory retirement age for employees of the self-insurer, and individuals older than seventy years of age continue to work for the self-insurer.
(Dec. 2.)
In his decision, the administrative judge recognized that it was the employee's burden to establish that, but for the injury, he would have remained active in the labor market. The judge concluded that the corroboration requirement of § 35E was overcome by the testimony of Cognata and the nature of the employer's pension plan. The judge therefore ordered continuing benefits. (Dec. 7.)
The self-insurer argues that the employee failed to overcome § 35E's presumption of non-entitlement to benefits because his testimony that he would have remained active in the labor market cannot be corroborated by his own testimony that he desired a pension and sought work. We recently addressed this issue in Harmon v. Harmon's Paint and Wallpaper, 8 Mass. Workers' Comp. Rep. 432 (1994). There we stated:
In summary, § 35E does not say that an administrative judge should ignore all of an employee's testimony which bears on whether he intended to retire at age sixty-five. . . . Section 35E by its plain language simply says that the employee's testimony that he would have continued to work past age sixty-five but for the injury — standing alone — will not carry the day and rebut the presumption of retirement.
Id. at 437. (Emphasis in original.) The judge in the instant case presaged our decision in Harmon when he determined that the employee's testimony that he sought work when he was nearly sixty-five years old was not the type of evidence for which § 35E required corroboration.
The plain meaning of the words of § 35E amounts to a restriction on the evidentiary force of the testimony of an employee and his family that ". . . but for the injury he would have remained active in the labor market." Section 35E does not similarly limit the effect of the employee's or his family's testimony as to circumstances which may support an inference that the employee "would have remained active in the labor market." Such evidence may have its full evidentiary effect, and if a judge believes it and so finds, no corroboration is required by § 35E. If the employee merely says "I planned to keep working after, age 65", or "I am the kind of person who would have kept working or seeking work" without qualifying corroboration or evidence of circumstances that support the inference that the employee "would have remained active in the labor market", the force of § 35E would not be overcome, and a judge, even though believing the testimony, would be required to apply the presumption of non-entitlement in § 35E.
Here the judge reported the testimony of the employee:
The employee testified that he went to work for the self-insurer in order to receive a pension; he could not receive such pension unless he had worked ten years for the self-insurer. If he had worked for the self-insurer ten years, the employee would have been older than sixty-five years old. (Dec. 7.)
The judge then made a subsidiary finding that "this is evidence that the employee would have remained active in the labor market after attaining the age of sixty-five" (Dec. 7.)
Although the judge stated that his finding that the employee would have remained active in the labor market was based on the employee's testimony to that effect, he stated that he based his finding as well on the employee's other testimony, which apparently referred to the employee's describing his circumstances (Dec. 8). The latter testimony does not require corroboration. Harmon, supra; Quinlan v. Marois Construction Co. 10. Mass. Workers' Comp. Rep. ___ (January 26, 1996).
We affirm the judge's decision.
_________________________ Edward P. Kirby Administrative Law Judge
_________________________ Susan Maze-Rothstein Administrative Law Judge
Filed: March 13, 1996
I agree that the judge's decision is not arbitrary, capricious or contrary to law and therefore join in the order of affirmation, even though I disagree with the dicta stating that the only portions of the employee's testimony and that of his family members on the § 35E retirement issue which require corroboration are bold-faced statements that "but for the injury the employee would have remained active in the labor market."
As in Quinlan v. Marois Construction Co., 10 Mass. Workers' Comp. Rep. ___ (January 26, 1996), this case is distinguishable from Harmon v. Harmon's Paint Wallpaper, 9 Mass. Workers' Comp. Rep. 432 (1994), because the record contains credible evidence apart from the testimony of the employee and members of his family which corroborates their testimony on the § 35E retirement issue. Although I disagree that circumstantial testimony from the employee and his family members alone can provide the corroboration which § 35E requires, I agree with the majority that the § 35E presumption's bubble was burst by the independent corroborating evidence contained in the parties' stipulation. This is not a case where the evidence on the § 35E issue came solely from the employee's mouth.
Section 35E does not prevent the employee or his family members from testifying about his circumstances and retirement plans. Tobin v. Town of Stoughton, 9 Mass. Workers' Comp. Rep. 118 (1994), appeal docketed, No. 95-J-292 (Mass.App.Ct. May 19, 1995), referred by single justice to full panel, No. 95-P-2033 (Mass.App.Ct. November 27, 1995). The judge here properly considered the employee's testimony.
The insurer argues that the employee failed to meet his burden of proof under § 35E. In essence the self-insurer is attacking the judge's factual finding that but for the injury, the employee would have remained active in the labor market. In so doing, it misperceives our standard of review. Our ability to review such a factual decision is severely limited by G.L.c. 152, § 11C.
Section 11C provides in pertinent part:
The reviewing board shall reverse the decision of an administrative judge only if it determines that such administrative judge's decision is beyond the scope of his authority, arbitrary or capricious, or contrary to law. The reviewing board may, when appropriate, recommit a case before it to an administrative judge for further findings of fact.
Prior to the 1991 reforms, the reviewing board also had the authority to reverse a decision if it was "unwarranted by the facts". See G.L.c. 152, § 11C, as amended by St. 1987, c. 691, § 7. That power was eliminated by St. 1991, c. 398 § 31. The reviewing board no longer has any authority to weigh evidence. If a factual finding is supported by competent evidence in the record, it is not arbitrary. See Robinson's Case, 416 Mass. 454, 457-458 (1993) citing Howe v. Health Facilities Appeals Bd., 20 Mass. App. Ct. 531, 537 n. 6 (1985). Section 11C requires us to affirm a decision based upon competent evidence in the record and correct legal principles. Reis v. Anchor Motor Freight Inc., 9 Mass. Workers' Comp. Rep. 82, 84 (1995).
The judge here did not err in concluding that the employee met his burden of proof. The quantum of proof necessary to rebut § 35E's presumption of retirement and allow for determination of the truth through examination of all the evidence, is simply "some" credible corroborating evidence contrary to the presumed fact that the current unemployment is caused by the desire to be retired. The presumption of retirement is not evidence; it is merely a rule in reference to evidence. 19 K. Hughes,Evidence, § 43(2) (1961).
Note that this presumption differs from prima facie evidence. See G.L.c. 152, § 11A and § 7A. For a discussion of the difference between rebuttable presumptions and prima facie evidence, see Liacos, Handbook of Massachusetts Evidence at 234-242 (6th ed. 1994).
If there is no corroborating evidence as to the employee's retirement plans, then the presumption prevails. However, when corroborating evidence is introduced on the issue of whether but for the injury the employee would have remained active in the labor market, the administrative judge must consider such evidence. If the judge believes the evidence and is persuaded by it that but for the injury the employee would still be working, the presumption disappears. But where a witness testifies, a document is admitted or a stipulation is made, and the judge does not believe a word of that evidence, the presumption continues to control. In other words, the judge must consider the corroborating evidence and give weight to it only so far as he finds it to be true. See Brown v. Henderson, 285 Mass. 192, 194, 196 (1934). Said another way, the presumption disappears upon proof which persuades the judge to find contrary to the presumed fact.Scaltreto v. Shea, 352 Mass. 62, 64 (1967). The judge may either infer, from proof of the § 35E basic facts, that the employee's wage loss stems from the desire to be retired or in the alternative may credit the corroborating evidence that but for the injury the employee would still be working. See Hughes, supra, § 44 (Supp. 1992). This rule regarding presumptions has been called the "bursting bubble theory." Id.
We do not mean to indicate that a judge may disregard a stipulation without a rational reason.
The basic facts required to trigger application of § 35E's presumption of non-entitlement are 1) the employee is at least sixty-five years of age, 2) out of the labor force for a period of at least two years and 3) 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.
Any fragment of credible corroborating evidence satisfies § 35E's corroboration requirement and allows the administrative judge to consider the testimony of the employee and his family. Tobin, supra at 132. The stipulation here provided such a fragment.
The judge properly applied the law, found the § 35E presumption burst and, weighing all the evidence, came to a rational factual conclusion. I therefore concur in the ruling affirming his decision as it was not arbitrary, capricious or contrary to law. G.L.c. 152, § 11C.
________________________ Suzanne E.K. Smith Administrative Law Judge