Opinion
BOARD No. 0807696-85
Filed: April 9, 1997
REVIEWING BOARD DECISION
(Judges McCarthy, Maze-Rothstein, and Smith)
APPEARANCES
Michael F. Walsh, Esq., for the employee
Paul W. Goodrich, Esq., for the insurer
This is an appeal by Stephen O'Brien from an administrative judge's decision which denied c. 152 benefits claimed to be due as a result of work related mental incapacity. The judge's decision that the employee voluntarily left his employment and was not fired was not "arbitrary or capricious in the sense of having adequate evidentiary and factual support and disclosing reasoned, not irrational, decision making governing a workers' compensation dispute." Scheffler's Case, 419 Mass. 251, 258 (1994). We therefore affirm it. G.L.c. 152, § 11C.
However, because other portions of the decision consist in the main of recitations rather than factual findings, the decision is inadequate with respect to the remaining factual disputes. We therefore recommit the case for further findings of fact and conclusions of law on those questions.
Stephen O'Brien worked at the Gillette Company as a honer, putting edges on razor blades. (Dec. 3.) Approximately eight years into his employment, O'Brien experienced feelings of harassment and intimidation and felt that he was being treated unfairly and differently from other employees. (Dec. 3.) In October 1985, O'Brien separated from the company. The reasons for the separation were disputed. Mr. O'Brien claimed that he suffered disabling emotional stress due to mistreatment and harassment by both fellow employees and supervisors and then was wrongfully terminated. (Dec. 3.) The self-insurer maintained that O'Brien was not discharged, but left his job voluntarily in order to take another position.
The judge found "that the employee voluntarily left his employment at Gillette Company and was not fired as he claims." (Dec. 8.) He further found "that the employee has failed to prove by a preponderance of the evidence that he sustained a personal injury while in the course and scope of his employment at Gillette Company." Id.
As a preliminary issue, O'Brien argues that he was deprived of procedural due process when the judge refused to postpone the second day of hearing because of O'Brien's absence. We disagree. Granting a continuance because of a party's failure to appear is a matter for decision by the administrative judge who will be reversed only for abuse of discretion, under general principles stated fully in Davis v. Boston Elev. Ry., 235 Mass. 482, 496-497 (1920). The question is whether the denial of O'Brien's counsel's request for a continuance was arbitrary and capricious, failed to take into account relevant facts, or was based upon inappropriate considerations, as to amount to an abuse of discretion. Ackroyd's Case, 340 Mass. 214, 219 (1960);Barry's Case, 240 Mass. 409 (1922). No abuse of discretion occurred here.
At the end of the first day of hearing, the judge said that the case would be continued to one of two days, to be determined by schedules after counsel reviewed their calendars. (November 2, 1993 Tr. 83.) Counsel exchanged letters and a hearing date was set to take the testimony of specified defense witnesses. (November 9, 1993 Tr. 3-5.) O'Brien did not appear because of a claimed inability to arrange for transportation that morning. (Id. 3.) The judge found that O'Brien had sufficient notice of the hearing and heard testimony in O'Brien's absence. (Id. 5.) However, he permitted O'Brien to testify in rebuttal at a later date. (Id. 81; November 17, 1993 Tr.) Notably, at that subsequent hearing, O'Brien offered no explanation under oath for his earlier failure to appear. (Id.) Under these circumstances, the denial of the continuance request was not an abuse of discretion or contrary to law. See G.L.c. 152, § 11C.
Next, O'Brien argues that the administrative judge failed to resolve the conflicts in the testimony surrounding the severance of the employee/employer relationship. We disagree. There were two contradictory versions of the facts on this issue. The judge merely adopted one version over the other. The record evidence adequately supports the judge's finding that the employee voluntarily left Gillette. (Dec. 6, 7; November 9, 1993 Tr. 7, 10, 24, 25, 52, 53, 54.)
Both Mr. O'Brien's supervisor and his supervisor's assistant testified that the employee voluntarily left the company for another job. (Dec. 6, 7.) The judge noted that a co-worker corroborated the testimony given by the two Gillette representatives. "[T]he employee told him that he, the employee, was leaving the company to go to work for an aircraft manufacturer . . . that the new position was a great opportunity, and that he would make twice the money." (Dec. 6.) The co-worker also testified that he was unaware of any problems that the employee may have been experiencing at Gillette. (Dec. 6.)
As there is sufficient detail in his decision to support the factual conclusion that the employee voluntarily left Gillette, we affirm that portion of the administrative judge's decision.
However, there is another aspect to the claim where the judge failed to adequately address the conflicting evidence. O'Brien has testified about work events and circumstances during his time at Gillette. Because O'Brien's testimony is merely paraphrased in the decision, we cannot determine whether the judge was persuaded that the events described by O'Brien actually occurred. The judge should focus on each alleged specific event and then decide whether that "event" occurred in the manner described by the employee, and whether it, as a matter of medical science, was a cause of the mental disability. Lavoie v. Westfield Public Schools Sys. 7 Mass. Workers' Comp. Rep. 77, 78 (1993).
Since the hearing judge no longer serves in the department, we recommit the case to the senior judge for reassignment to a different administrative judge for hearing de novo with respect to the remaining issues. We suggest that in the interest of judicial economy and efficiency the case be decided, insofar as practicable, on the evidence presented to the former judge. See Nartowicz's Case, 334 Mass. 684, 686 (1956) ("We perceive nothing in this statute which precludes the board from making, with the consent of the parties, an expeditious determination of a claim which has been heard, but can no longer be decided, by one of its members. . . . [T]here would be nothing to prevent the parties from assenting . . . that the case might be heard by a new judge on the evidence taken before the earlier judge"); see also Liacos, Massachusetts Evidence, § 8.7.1 (6th ed., 1994) (prior testimony of presently unavailable witness is admissible). However, as there are key issues of witness credibility, we recommend that the lay testimony of currently available witnesses be retaken.
The question will arise on recommittal as to which standard of causation the judge will need to apply to this 1985 mental injury claim. We have determined that the 1986 amendment to § 1 (7A) — stating that an event or events at work must be a"significant contributing cause" of the claimed mental disability in order to be compensable, rather than a mere "contributing cause" — affects the substantive rights of employees. Leak v. F.A. Bassett Printing Co., 4 Mass. Workers' Comp. Rep. 206, 211 n. 7 (1990). Thus we decided that the amendment "may be applied only prospectively to injuries occurring on or after January 1, 1986." Id. We have maintained this position in a number of other cases. See, e.g., Day v. Lumbermens Mutual Casualty Co., 4 Mass. Workers' Comp. Rep. 312, 316 n. 5 (1990); Moore v. D.P.W., 6 Mass. Workers' Comp. Rep. 129, 130 n. 2 (1992); Gratten v. Worcester State Hospital, 9 Mass. Workers' Comp. Rep. 226, 231 n. 6 (1995). Burrill v. Litton Industries, 11 Mass. Workers' Comp. Rep. ___, slip op. at 7 (January 30, 1997). We hold to the precedent established in Leak, and elaborate on it as follows.
In Connolly's Case, 418 Mass. 848 (1994), the court recognized, in the workers' compensation context, that the common law rule of statutory construction — "that a statute affecting substantive rights operates prospectively only" — applies when the legislative intent regarding a statute's application is unclear. Id. at 851-852. The court cited as authority for this rule Price v. Railway Express Agency, Inc., 322 Mass. 476 (1948), in which it first construed the relationship between the then newly-enacted G.L.c. 152, § 2A and the common law rule set out above. Price involved a change in the law, after the date of Price's personal injury. The change eliminated the employer's exemption from the scope of the Act. Id. at 482. As a result, the employer was stripped of its common law defenses to the employee's claim. Id. The question presented was whether that amendment to the Act applied retroactively to the employee's injury. The employee argued it did, based on the plain language of § 2A: since the amendment did not increase the amount of compensation payable to the employee, it was required to be applied retroactively to his injury as a procedural amendment. Id. at 482-483. See n. 1 supra.
G.L.c. 152, § 2A, added by St. 1946, c. 398, § 3, which version was effective on the date of injury at issue in the present case, provides in its entirety:
Every act, in amendment of this chapter, in effect on the effective date of this section or thereafter becoming effective which increases the amount or amounts of compensation payable to an injured employee or his dependents shall, for the purposes of this chapter, be deemed to be substantive in character and shall apply only to personal injuries occurring on or after the effective date of such act, unless otherwise expressly provided. Every act, in amendment of this chapter, in effect on the effective date of this section or thereafter becoming effective which is not deemed to be substantive in character within the meaning of this section shall be deemed to be procedural or remedial only, in character, and shall have application to personal injuries irrespective of the date of their occurrence, unless otherwise expressly provided.
Assuming without discussion that the conversion of a previously non-compensable injury into a compensable claim did not "increase the amount or amounts of compensation payable to an injured employee . . ." the court nonetheless rejected the employee's argument. The court stated:
Statutes dealing with substantive rights are commonly to be construed to deal only with transactions occurring after their enactment unless the legislative intent that they be applied to past transactions is clearly expressed. [Citations omitted.] To give to § 2A the interpretation that all amendments to the act which were in effect and did not provide for an increase in the amount of the award were matters of procedure or remedy would lead to serious constitutional questions. [Citations omitted.] . . . Could [the employee's] injury be converted into a good claim for compensation by a subsequent legislative fiat?
. . .
We are of the opinion that the proper construction of [§ 2A] shows that it cannot be rightly applied to the instant case. We must look beyond the letter of the statute where a literal construction would be inconsistent with the legislative intent. [Citations omitted.] . . . We do not think that the Legislature intended all amendments including those which are essentially and actually substantive in nature should be considered as remedial, excepting only one dealing with an increase in compensation.
Id. at 483-485. The court therefore applied the common law rule that an amendment affecting the substantive right of a party should be applied prospectively, and chose to read § 2A interpretively to reach a result that was consistent with the general thrust of § 2A: that the imposition of an additional burden on the employer was the flip side to the increase of compensation to the employee, and could not be construed as merely procedural. Id. at 484-485.
The subject amendment in Price was enacted without any provision as to its prospective or retroactive application. Id. at 482. The present case, likewise, involves an amendment that was enacted unaccompanied by a direction for its characterization as substantive or procedural. In this case, however, the subject amendment to § 1(7A), St. 1986, c. 662, § 6, included two distinct provisions. One added the qualifier, "significant," to the causal standard for mental injuries, and the other added the bona fide personnel action exception to mental injuries. The bona fide provision was exactly the same as an amendment to § 29, enacted the year before, St. 1985, c. 572, § 38. That amendment was accompanied by a specific section designating that it be applied prospectively, St. 1985, c. 572, § 65. Certainly, the only possible conclusion is that the exact language added to § 1 (7A) in St. 1986, c. 62, § 6, must also be deemed substantive. Where words are used in one part of a statute in a definite sense, they should be given the same meaning in another part. Beeler v. Downey, 387 Mass. 609, 617 (1982).
We think that "Both sentences of [St. 1986, c. 662, § 6,] must be construed together so as to constitute a consistent and harmonious statutory provision." Price at 485. If the bona fide personnel action amendment is to be applied prospectively, the 1986 change in the causal relationship standard must also look only forward. Were we to apply the "significant contributing cause" standard retroactively and the bona fide personnel exception prospectively, we only add to the burden placed on the judges, litigants, and lawyers and move our dispute resolution system, which is supposed to be simple and summary, see § 11B, towards a system at times nightmarish in its complexity.
The causal relationship standard was changed again by St. 1991, c. 398, § 14. That change is expressly substantive, pursuant to St. 1991, c. 398, § 106.
Many events at work fit the statutory description of bona fide personnel actions. This characterization only matters if the "action" occurs after the January 1, 1986 effective date. Prior to that date, the only question is whether there is an event at work which adversely affected the employee's mental state to the point of incapacity. Where there is a claim that a series of events, some before and some after the effective date of the bona fide personnel action exception, caused mental incapacity, the problem is still more daunting. And the prospect of framing alternative hypothetical questions for the deposition of a § 11A medical examiner, not knowing what findings or characterizations the judge will put on the events at work, is truly staggering.
We should not further complicate matters by requiring the prospective application of the bona fide personnel exception and the retroactive use of the significant contributing cause standard. Thus, we hold to the position we took in Leak. On recommittal, the hearing judge shall apply the standard set out by the court in Albanese's Case, 378 Mass. 14, 18-19 (1979), whether the claimed emotional injury "resulted from a series of identifiable stressful work related incidents occurring over a relatively brief period of time. . . ."
In Robinson's Case, 416 Mass. 454 (1993), the court downplayed the changed causal relation standard, holding that the addition of "significant" did not put a higher standard of proof onto emotional disability claims. Id. at 458. The court specifically adopted the pre-change Kelly's Case reasoning that "none of the earlier precedents . . . 'suggest[s] that entitlement to workers' compensation for emotional disability requires proof of facts in addition to those required when the disability is only physical, and we discern no basis in G.L.c. 152 for such a requirement.'" Id. at 459, quoting Kelly's Case, 394 Mass. 684, 686 (1985).
So ordered.
_________________________________ William A. McCarthy Administrative Law Judge
_________________________________ Susan Maze-Rothstein Administrative Law Judge
In several recent Supreme Judicial Court decisions, the court has made clear that the common law rules of statutory construction do not apply where the workers' compensation act contains a different direction. See Connolly's Case, 418 Mass. 848, 852 (1994); Shelby Mut. Ins. Co. v. Commonwealth, 420 Mass. 251, 256 (1995). The court rejected the approach of the reviewing board in Connolly v. Wire and Metal Separation Systems, 6 Mass. Workers' Comp. Rep. 214 (1992), reversed supra, and Leak v. F.A. Bassett Printing Company, 4 Mass. Workers' Comp. Rep. 206, 211, n. 7 (1990), that a specific legislative applicability provision can be overridden by the common law based on Price v. Railway Express Agency, 322 Mass. 476, 483-484 (1948). Because the board persists in its erroneous approach to statutory construction, despite the court's recent guidance, further appellate correction is imperative. Leak is no longer good law and should be overruled.
General Laws c. 152, § 2A, provides a special rule to determine the scope of amendments to the Workmen's Compensation Act, thereby replacing the common law applicability rule.American Mutual Liability Ins. Co. v. Commonwealth, 379 Mass. 398, 404 (1979). Section 2A instructs that any amendment which increases the amount of compensation paid to an employee, or his dependents, shall be deemed substantive and shall apply only to injuries occurring on and after the date of that act and that all other amendments "unless otherwise expressly provided" shall be deemed procedural and shall apply retroactively. Price v. Railway Express Agency, Inc., 322 Mass. 476, 78 N.E.2d 13 (1948) does not stand for the proposition that the common law rule trumps § 2A, but rather holds that § 2A itself may not be applied retroactively. In Price, at the time the employee was injured, his employer was not subject to the workers' compensation act. The act was subsequently amended to bring the employer within its scope. Thereafter, the Legislature adopted G.L.c. 152, § 2A. The employee argued that § 2A applied and made his claim compensable. The court held that § 2A was inapplicable because retroactive application of § 2A would have resulted in an increase in the compensation burden of the employer, the very thing that § 2A was designed to prevent. "Such a result was found to be contrary to the legislative purpose behind § 2A, which 'limits the award to one who had a compensable claim to the amount fixed at the time of his injury' and which 'prohibits the imposition of an additional burden . . . (i.e., an) increase in compensation. [Price, 322 Mass.] at 484.'" American Mutual, 379 Mass. at 405. In other words, Price is a case, like that of Shelby, where there was no specific provision in the workers' compensation act governing applicability of the amendment in question. See Shelby, 420 Mass. at 256-257 (applying the common law rule where the amendment directed its application "[n]otwithstanding the provisions of" § 2A).
Section 2A was amended by St. 1991, c. 398, § 16. Section 1 (7A) was amended by St. 1991, c. 398, § 14. These amendments are not relevant to this case.
Pursuant to G.L.c. 152, § 2A, a statute which the Legislature did not indicate in any way should be deemed substantive will instead be considered retroactive and will apply retroactively. Phillips's Case, 41 Mass. App. Ct. 612, 614, n. 6 (1996); Shelby, 420 Mass. at 256. Therefore, O'Brien's claim is governed by the 1986 amendment to G.L.c. 152, § 1 (7A).
Statutes 1986, c. 662, § 6 provides, in pertinent part:
Paragraph (7A) of said section 1 of said chapter 152 is hereby amended by striking out the last sentence, added by section 11 of chapter 572 of the acts of 1985, and inserting in place thereof the following two sentences: — Personal injuries shall include mental or emotional disabilities only where a significant contributing cause of such disability in an event or series of events occurring within the employment. (emphasis supplied)
Because this 1986 amendment decreased rather than increased compensation, and its application was not "otherwise expressly provided," it is "procedural" within the meaning of G.L.c. 152, § 2A, and applies to personal injuries irrespective of their effective date. G.L.c. 152, § 2A, as inserted by St. 1946, c. 386, § 3; see American Mutual, 379 Mass. at 404; and Shelby, 420 Mass. at 256.
If the Legislature had wanted to limit this amendment to injuries occurring after its effective date, it could have done so specifically. Given the legislative action of explicitly designating other sections of St. 1986, c. 662 as substantive for the purposes of G.L.c. 152, § 2A, the reviewing board should not read an "express" provision by implication into St. 1986, c. 662, § 6. See Pospisil's Case, 402 Mass. 820, 823 (1988); St. 1986, c. 662, §§ 53 and 54. The reviewing board must assume that the 1986 Legislature was aware of G.L.c. 152, § 2A, in enacting this amendment. See American Mutual, 379 Mass. at 405. Section 2A requires the application of this amendment to this claim.
Leak, and the cases following it, are premised on the erroneous view that retroactive application of an amendment, which under the common law would be classified as substantive, violates due process. In Connolly's Case, 418 Mass. 848 (1994), the court did not agree. It wrote:
Constitutional issues are raised by retroactive application of a statute if the statute deprives an individual of vested rights. If an individual has no vested right, a court need not reach any constitutional issues. McCarthy v. Sheriff of Suffolk County, 366 Mass. 779, 781, 322 N.E.2d 758 (1975) (analysis of whether the statute, as applied, violates due process is necessary only if retroactive operation of a statute adversely affects vested substantive rights). See also Franks, supra, 422 Mich. at 652-653, 375 N.W.2d 715 (amendment reducing benefits not retroactive simply because of application to injuries predating effective date; although amendment may involve events occurring prior to its effective date, no constitutional problem arises because it applies only to payments received and attributable to periods after its effective date). Connolly argues that because his injury and award of benefits predated § 8 (2)(j), if the amendment operates to terminate weekly payments it is an unconstitutional deprivation of a vested property right. There is no merit to that contention. (emphasis supplied)
Id. at 852-853.
O'Brien does not have a vested right to compensation benefits just because his alleged injury occurred prior to the effective date of legislation limiting compensability. See Tobin v. Town of Stoughton, 9 Mass. Workers' Comp. Rep. 118, 129 (1995), aff'd, 424 Mass. 250 (1997). This amendment was expressly made retroactively effective to January 1, 1986, the same effective date as the statutory provision it replaced. St. 1986, c. 662, § 55; St. 1985, c. 572, § 68. O'Brien filed his claim on January 22, 1986, after the amendment's effective date. He had not received any payments for the period prior to the act's implementation, but merely had a claim which needed adjudication.
For the 1985 legislative history, see Appendix in Cirignano v. Globe Nickel Plating, 11 Mass. Workers' Comp. Rep. (January 17, 1997).
"[I]n 1986, the Legislature found it necessary to pass a corrective act which made fifty-four technical amendments to the 1985 reform act ranging from the repair of typographical mistakes to more significant errors or omissions. See St. 1986, c. 662. See also Locke, supra, preface to 1987 edition." Daly v. Commonwealth, 29 Mass. App. Ct. 100, 104, n. 6 (1990).
"To be compensable, injury must arise 'out of' as well as 'in the course of' employment, and '(a) disease of the mind or body which arises in the course of employment, with nothing more, is not within the act.'" Zerofski's Case, 385 Mass. 590, 594 (1982). In requiring that work be a significant, rather than a minor, contributing cause of a mental disability, the Legislature was merely separating those mental disabilities which are sufficiently work related to justify the imposition of workers' compensation liability from those which are not. See Id. There is no vested right to a lower standard of compensability.
For these reasons, I dissent from the majority instruction on the elements of proof for the employee's mental disability claim. To recover compensation, O'Brien must establish by a preponderance of the credible and reliable evidence that the other alleged events at work did occur and were a significant, as opposed to a minor, contributing cause of his mental disability. See Robinson's Case, 416 Mass. 454, 459 (1993), G.L.c. 152, § 1 (7A) (1986).
I concur in the remainder of the decision. The judge properly disposed of the § 29 bona fide personnel action issue by finding that the employee was not terminated as he had claimed. The judge did not abuse his discretion in denying the employee's request to continue a previously scheduled hearing.
Section 29 was amended in 1985 in response to Kelly's Case, 394 Mass. 684 (1985), to eliminate compensation for mental illness arising out of bona fide, personnel actions, except those of intentional infliction of emotional distress. St. 1985, c. 572, § 38. The Legislature specified that this limitation only applied to injuries occurring after its effective date. St. 1985, c. 572, § 65. The amendment was effective on December 10, 1985. As this employee alleged an injury on October 31, 1985, before its effective date, the amendment, by its terms, would not apply to the employee's case.
Therefore, in this case, it is unnecessary to reach the issue of whether the addition of this language to § 1 (7A) in 1986 changed the scope of its application. As the "bona fide" amendment to § 1 (7A) decreased rather than increased compensation, then one could argue that it should have a retroactive application. Such a construction would make its application consistent with that of the other changes to § 1 (7A) enacted in 1985 and 1986. See the recreational limitation in St. 1985, c. 572, § 11. It also would have the benefit of making the amendment have the same effective date as the other changes to § 1 (7A), January 1, 1986, rather than the effective date provided for § 29, December 10, 1985.
_________________________________ Suzanne E.K. Smith Administrative Law Judge