Opinion
Board No. 037690-87
Filed: May 14, 1996
REVIEWING BOARD DECISION
(Judges Kirby, Smith and Maze-Rothstein)
APPEARANCES:
Joseph F. Angelli, Esquire, for the employee
Andrew P. Saltis, Esquire, for the insurer
The employee appeals from the decision of the administrative judge terminating his G.L.c. 152, § 35 benefits on the basis of the employee's failure to prove that he would have continued working beyond the age of sixty-five, as required by § 35E.
The employee suffered an industrial accident on May 14, 1987 while employed by United Liquors, Inc. The insurer accepted the case and commenced payment of partial disability benefits pursuant to § 35 from June 1987 and continuing. On July 22, 1992, after the employee reached age sixty-five, the insurer filed a request for reduction, modification or discontinuance of the employee's benefits based on § 35E, as amended in December 1991.
Section 35E was partially rewritten after the date of the injury but prior to the hearing which is the subject of this appeal. The change brought about by St. 1991, c. 398, § 66 was deemed procedural in nature, therefore, making the most recent version of § 35E controlling. It provides in part:
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 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. G.L.c. 152, § 35E (as amended by St. 1991, c. 398, § 66).
A conference was held on December 15, 1992, at which time the employee's motion to join a claim for permanent and total incapacity benefits pursuant to G.L.c. 152, § 34A was allowed. In his conference order, dated December 23, 1992, the administrative judge denied the insurer's request to discontinue and denied the employee's claim for § 34A benefits. Both parties timely appealed.
An impartial examination was conducted pursuant to G.L.c. 152, § 11A on April 26, 1993 by Dr. Richard Greenberg, an orthopedic surgeon. He reported his opinion that the employee was permanently partially disabled and could not return to any work that involved heavy lifting. (Dec. 9.)
At the hearing conducted on June 28, 1993, the impartial medical report was made part of the record. Lay testimony was taken from the employee, Dorothy Divisano (the employee's wife), Walter Konopka (a member of the employee's union) and Kathleen DiCecco (a private investigator for the insurer). The employee testified that his life has been spent working primarily as a truck driver and delivery man. (Dec. 4.) He worked for the employer from 1960 to the date of the injury. He testified that he would have worked past the age of sixty-five had he been able to do so. (Dec. 6.) Walter Konopka, a fellow member of the Teamsters Union, testified that there were many people in the union who worked past the age sixty-five, including himself, age seventy. (Dec. 7.)
In his decision and orders filed December 15, 1993, the judge discontinued the employee's weekly benefits. He found that the employee failed to overcome the burden imposed by § 35E, to prove that he would have continued working past the age of sixty-five, see supra note 1 (text of § 35E), stating: "[t]he statute provides that the testimony of the employee and/or any member of his family is not sufficient to sustain this burden." (Dec. 10.)
We address two issues we find dispositive: one, whether the judge misapplied § 35E by failing to consider and weigh the testimony presented by the employee and his wife; and second, whether the administrative judge analyzed and fully addressed the issue of disability. The employee's first issue was dealt with in Harmon v. Harmon's Paint Wallpaper, 8 Mass. Workers' Comp. Rep. 432 (1994). The corroboration of all of an employee's testimony which might be probative of whether he "would have remained active in the labor market" after the age of sixty-five is not required. Where, as here, an employee testifies on background facts and circumstances which, if found credible, support a finding as to his state of mind that he intended to continue working after the age of sixty-five, or that he "would have, " no corroboration is necessary. It is only "uncorroborated self-serving testimony by an employee with respect to his state of mind regarding retirement at age sixty-five" which is insufficient to overcome the § 35E presumption. Id. at 436. The judge's interpretation of § 35E, that all testimony by an employee and his family bearing on whether the employee would have remained active in the labor market requires corroboration before it may be considered, does not follow the precedent set by Harmon. See Quinlan v. Marois Constr. Co., 9 Mass. Workers' Comp. Rep. ___ January 26, 1996.
The employee also raises three constitutional issues: 1) whether § 35E violates the due process clause of the United States and Massachusetts Constitutions; 2) whether § 35E violates the equal protection clause of the Fourteenth Amendment to the U.S. Constitution; and (3) whether § 35E is preempted by Federal law. Because those issues were treated in Tobin v. Town of Stoughton, 9 Mass. Workers' Comp. Rep. 118 (1995), appeal docketed, No. 95-J-292 (Mass.App.Ct. October 19, 1995), we do not address them here.
As Harmon was decided December 30, 1994, the administrative judge did not have the benefit of its precedential guidance.
Here the judge reported testimony by the employee that related to circumstances rather than merely to his state of mind as to his intent and what he "would have" done if he had not been injured. It included statements that he needed to work in order to maintain his health benefits and that he could not meet his monthly expenses with the income he received as compensation for his injury. (Dec. 6.) His wife testified that he lost his health insurance one year after his May 14, 1987 industrial accident, several years before he reached age sixty-five on August 17, 1991. (Dec. 4, 7.) this is circumstantial testimony of the employee and his wife which does not require corroboration before it may be weighed by the judge.
We grant that the evidence is sparse and that the judge expressed doubts about the testimony. (Dec. 6, 7.) Nevertheless it is evidence not treated in accord with the principles of Harmon and Quinlan. Because the distinction between the two kinds of testimony, one requiring corroboration and the other not requiring it, was not made we cannot determine what the judge's findings would have been if the employee's and his wife's testimony as to his circumstances had been weighed, and we therefore vacate the decision and remand it.
On remand the judge shall apply the standard of Harmon and Quinlan and make further findings on § 35E after reconsideration of the employee's and his wife's testimony as to background and circumstances. He may then give to that circumstantial evidence whatever weight he as fact-finder deems appropriate. He may then infer whether or not the employed would have remained active in the labor market, thus determining whether the non-entitlement presumption of § 35E has been overcome.
The employee next raises the issue of the judge's findings on the employee's disability. If he so finds, then because this matter came before him on a complaint by the insurer for discontinuance of § 35 partial incapacity compensation, he must determine the employee's earning capacity, and in so doing, consider the employee's age, education, work history, and the requirements of the employee's previous work, as well as the physical limitations stemming from the employee's work injury. Scheffler's Case, 419 Mass. 251, 260 (1994). The findings here do not indicate that this necessary analysis was made, and on remand the judge must provide it in his decision.
Section 35 benefits were not exhausted when the complaint for discontinuance was made.
Accordingly, we vacate the judge's decision and remand for further findings as to the applicability of § 35E in accord with this decision.
So ordered
________________________________ Edward P. Kirby Administrative Law Judge
________________________________ Susan Maze-Rothstein Administrative Law Judge
Filed: May 14, 1996
The judge properly applied G.L.c. 152, § 35E, which is constitutional and is not preempted by the Federal Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., known as ADEA, or by the Commonwealth's anti-discrimination statute, G.L.c. 151B. Tobin v. Town of Stoughton, 9 Mass. Workers' Comp. Rep. 118 1995), 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 made a factual determination that the employee had not produced sufficient corroborating evidence to rebut the § 35E presumption of retirement. As that factual decision is not arbitrary or capricious, or contrary to law, G.L.c. 152, § 11C requires that we affirm it. See concurrences in Quinlan v. Marois Construction Co., 10 Mass. Workers' Comp. Rep. ___ (January 26, 1996) and Cognata v. Massachusetts Turnpike Authority, 10 Mass. Workers' Comp. Rep. ___ (March 13, 1996). For a contrary viewpoint on the necessity of independent corroboration, see Harmon v. Harmon's Paint Wallpaper, 8 Mass. Workers' Comp. Rep. 432 (1994) (circumstantial testimony from the employee and his family membersalone can provide the corroboration which § 35E requires.)
If, as posited by the majority, the judge erred in his ruling regarding the necessity of independent corroboration apart from the testimony of the employee and his wife, then I concur that the findings are inadequate for proper appellate review. The judge merely recited the evidence without making factual findings to resolve the conflicts in testimony. On remand the judge should determine the following issues raised by conflicting evidence of the employee's circumstances: Did the employee's income, excluding his workers' compensation benefits, exceed his expenses? Had the employee obtained his pension by falsely stating that he was not receiving workers' compensation benefits? Did the employee need to continue to work in order to maintain his health insurance benefits? Would the employee's pension increase significantly if he continued working past age sixty-five? Did the employee hit golf balls in his backyard on the two occasions described by the private investigator? Did he work on his cars and run errands as she testified? What are the employee's physical limitations? Are his pain complaints credible and reliable? In summary, was the employee's testimony, and that of his wife, about his life circumstances and background relative to the retirement issue credible and reliable? Was the employee's testimony that but for the injury, he would still be working credible and reliable?
This record would support a factual conclusion that the employee failed to rebut the presumption of retirement. The testimony of the independent witness adds nothing to the employee's case. The person had never met the employee. He was not employed by the same employer. His years of service did increase his employer-provided pension (which Divisano did not have), but did not count toward his Teamsters Union pension (which Divisano did have). (Tr. 71.) The witness's testimony failed to provide any evidence contrary to the presumed fact that Divisano's current unemployment is caused by his desire to be retired. Taking the witness's testimony at face value, accepting its credibility, it provides no proof that but for the injury, Divisano would still be working. It therefore fails to "burst the bubble" of the presumption. For a discussion of the "bursting bubble theory" of presumptions, see Quinlan, supra, majority slip op. at 7.
Noticeably lacking from the majority opinion is any statement of record evidence which would be sufficient to rebut the § 35E presumption of retirement. Compare the evidence discussed the majority opinions in Quinlan, supra (no company pension or profit-sharing plan, other employees of this employer worked past age sixty-five, employee could have worked for this employer beyond age sixty-five) and Cognata, supra (employee went to work because he wanted a pension and needed additional years of service beyond age sixty-five to vest in the company pension).
Divisano testified that he would have worked past age sixty-five had he been able to do so since he had always liked his work and always attempted to better himself. (Dec. 6.) This was solely self-serving testimony regarding his state of mind which Harmon found insufficient to meet the § 35E burden. See Harmon, 8 Mass. Workers' Comp. Rep. at 436 ("The legislature simply provided that a bald, self-serving statement of intention to continue to work, unless corroborated in some way, as a matter of law does not overcome the presumption of non-entitlement.").
Divisano also offered testimony about background facts and circumstances to support his state of mind testimony. However, that testimony was self-contradictory or contradicted by the testimony of other witnesses. As the judge observed:
. . . He also suggests that he always continued to work in order to maintain his health benefits, which claim may or may not have merit since he would become eligible for medicare benefits upon attaining the age of 65 at any rate. He claims that without his weekly worker's compensation benefits, he would be unable to meet his expenses and thus, the fact that the expenses exceed the monthly income, indicates that he would have had to continue to work.
On cross-examination, the employee admitted that there was a monthly excess of his income after normal expenses had been paid and that his present income exceeded his monthly expenses.
(Dec. 6.) The judge went on to recite the testimony of the employee's wife which specifically contradicted the employee's testimony about medical insurance. [Dec. 7 ("She earns $6.50 per hour but has the opportunity to provide health insurance for her and her husband through her employment.")]
This record lacks the quality of rebutting evidence envisioned in Harmon. Based on this record, a rational judge acting reasonably could conclude that this employee had no financial obligations, was collecting his pension, was well enough to travel to Maine, and spent his days playing golf and working on his car. As the Harmon panel warned, "[g]iven these circumstances one would not ordinarily expect a judge to put much credence in testimony by such an employee that he intended to continue working beyond age sixty-five but for the injury." Harmon, 8 Mass. Workers' Comp. at 436-437.
In conclusion, because the administrative judge properly applied G.L.c. 152, § 35E and rendered a decision which is factually warranted and not arbitrary or capricious, in the sense of having adequate evidentiary and factual support and disclosing reasoned decision making governing a workers' compensation dispute, we should affirm it. See Scheffler's Case, 419 Mass. 251, 258 (1994); G.L.c. 152, § 11C.
________________________________ Suzanne E.K. Smith Administrative Law Judge