Opinion
Board No. 569090
Filed: January 26, 1996
REVIEWING BOARD DECISION
(Judges Kirby, Smith and Maze-Rothstein)
APPEARANCES:
Terrence A Low, Esquire, for the employee
Frederica H. McCarthy, Esquire, for the insurer
This is an appeal by the employee, whose weekly incapacity benefits were discontinued after an administrative judge found that the force of the statutory presumption of non-entitlement to continuing compensation under a G.L.c. 152, § 35E was not overcome. The judge found the employee failed to establish with corroborating evidence apart from his family's testimony that "but for" his injury he would have remained active in the labor market after age 65. We find that there was evidence credited by the judge competent to rebut the presumption. Therefore, we vacate the decision and remand for further findings consistent with this opinion.
General Laws c. 152, § 35E 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 old age benefits from a public or private pension fund 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. St. 1991, c. 398, § 66.
We summarize the pertinent facts. The employee worked as a carpenter for all of his adult life. On January 8, 1990, while working at Marois Construction Company where he was employed for the previous 15 years, Mr. Quinlan slipped and fell from staging for approximately 15 feet, landing on his left side. He sustained serious injuries to his elbow and low back. Multiple surgeries failed to restore strength to the employee's elbow. (Dec. 2-3)
The insurer accepted the case and paid § 34 temporary total incapacity compensation from the date of injury. Thereafter, the insurer filed a complaint for modification or discontinuance. After a conference held on December 22, 1992, the judge denied the insurer's request under § 35E because the employee had not yet turned 65. The insurer appealed. Following the evidentiary hearing, the judge issued his decision on November 8, 1993 and ordered termination of all benefits, citing § 35E.
The judge found that at the time of the hearing, the employee was 65 years of age, had been out of the labor force for three and one half years, and was receiving benefits including both Social Security Retirement and a pension of less than $120.00 per month from a carpenter's union. (Dec. 5.) He therefore correctly concluded that the presumption of non-entitlement to benefits under § 35E was applicable to the facts at hand. See supra note 1 (text of § 35E). While specifically finding credible Mr. Quinlan's testimony that "his intention was to work well past the age of 65," the judge denied his claim, finding that § 35E requires more than the uncorroborated testimony of the employee or his family that he intended to remain active in the labor market was necessary to overcome the presumption of non-entitlement created by § 35E.
The employee appeals from the decision and raises two arguments. The first is without merit. He contends that because he was injured prior to December 24, 1991, the effective date of § 35E, as amended by St. 1991, c. 398, § 66, the judge erred in applying 1991 version to him and should have applied § 35E as appearing in St. 1985, c. 572, § 45, effective November 1, 1986. In Tobin v. Town of Stoughton, 8 Mass. Workers' Comp. Rep. 118, (1994), we held that the plain language of the 1991 amendments indicates that the 1991 version of § 35E is procedural and must be applied from its effective date onward, regardless of the date of injury. Id. at 133; see Connolly's Case, 418 Mass. 848, 852-853 (1994); St. 1991, c. 398, § 107; Compare Bamihas v. Table Talk Pies, 9 Mass. Workers' Comp. Rep. ___ (October 21, 1995) (discussing "old" § 35E). Because the 1991 amendment to § 35E is procedural, the judge did not err in applying it to this case. See Frolick v. Massachusetts Bay Transportation, 9 Mass. Workers' Comp. Rep. ___ (August 30, 1995) (applying 1991 version of § 35E to March, 1990 injury date).
Tobin v. Town of Stoughton, supra is currently before the Massachusetts Appeals Court on an appeal involving the constitutional issues.
We find merit in the employee's second argument. Quinlan contends the § 35E presumption was rebutted because there was corroborating evidence that he never intended to retire at his sixty-fifth birthday. We agree.
The employee testified at the hearing, as did his wife. They stated that but for the employment-related injury the employee would have remained active in the work force (Dec. 3) The judge found the testimony credible and stated: "Mr. Quinlan plainly and honestly, I believe, states that his intention was to work well past the age of 65. He enjoyed his work, and he made good money. His retirement benefits, while available, are not as much as he would feel comfortable on. . . ." (Dec. 3-4.) The judge found this testimony did not overcome the § 35E statutory presumption.
Because circumstantial testimony alone is sufficient to overcome the § 35E presumption under the holding in Harmon v. Harmon's Paint Wallpaper, 8 Mass. Workers' Comp. Rep. 432 (1994), we find the judge's ruling to be in error. See also Gladu v. Massachusetts Turnpike Authority, 9 Mass. Workers' Comp. Rep. 223 (1995).
Harmon holds that § 35E requires corroboration for the employee's state-of-mind testimony as to what he would have done, and that the presumption of non-entitlement shall not be overcome by such testimony alone, nor by corroboration of such state-of-mind testimony by similar state-of-mind testimony of family members. On the other hand,Harmon holds that testimony from the employee and family as tocircumstances may be the basis for a finding by an administrative judge that "but for the injury such employee would have remained active in the labor market." Id. at 435-437.
The case at bar presents, in addition to Quinlan's and his family's testimony as to his circumstances, documentary and testimonial evidence from the employer as to other circumstances sufficient to support a finding that the employee "would have remained active in the labor market". This same evidence would also support a finding that the testimony of the employee and his wife as to his state of mind had been corroborated. In either way, such evidence would be enough, if credited, to overcome the § 35E presumption.
That evidence includes Marois' testimony that he had never discussed retirement plans with Mr. Quinlan, that there was no company pension or profit-sharing plan for his employees, and that he had in the past employed carpenters older than age 65. (Dec. 4; Tr. 69-73). It also included two letters form Marois. One, dated February 3, 1993, states in pertinent part: "since this company has no retirement plan and Mr. Quinlan did not indicate plans for retiring, he could have continued working after age 65." (Ex. 4, Tr 70-75.) The other letter, dated December 14, 1992, contained similar assurance that the employee had job opportunities if he kept working. This non-family-based circumstantial evidence can support an inference that in such circumstances the employee would have perceived a need to keep working and "would have" done so.
The judge ruled, and based his decision on it, that § 35E requires independent or corroborated evidence that the employee "affirmatively planned" to remain active in the labor market. (Dec. 4.) This requires more than § 35E demands in order to overcome the presumption of nonentitlement. We look to the "plain words" of the statute, particularly the words "would have." To find what an employee "would have" done under certain circumstances does not require that such employee had made a plan in advance, or even that the employee had anticipated the occurrence of such circumstances. It is sufficient that a finding be made that the employee "would have remained active in the labor market", so long as the finding is based on evidence that can reasonably support such an inference. If there were in a given case evidence of an "affirmative plan" or a conscious formulated intent, it indeed would be probative that the employee "would have" continued to remain active in the labor market" were it not for the injury. But the words "would have" connote a much broader meaning and include situations other than those in which an employee planned the future with exemplary prudence. Hence circumstantial evidence may be conclusive of the issue.
A presumption is a rule of law which requires the assumption of a presumed fact from a basic fact or set of facts that are already established. See W. McCormick, Evidence § 974 (3d ed. 1984). The "basic set of facts" in this case is that the employee is at least 65 years of age, has been out of the work force for a period of at least two years, and is eligible for old age benefits from a public or private pension fund which is paid in part or entirely by an employer. The "presumed fact" is that the employee would not have remained active in the labor market beyond age 65.
Massachusetts follows the "bursting bubble theory" of presumptions, that is, once there is any credible evidence introduced contrary to the presumed fact, the presumption is destroyed and the case thereafter will proceed as though the presumption never existed and the competing facts may be weighed on their own merits, having no artificial legal value. Hughes, Evidence §§ 43, 44 (1961 Supp. 1993); see Brown v. Henderson, 285 Mass. 192, 194-196 (1934); Tobin v. Town of Stoughton, supra at 131-132. If there is no evidence that the employee would have continued working, the presumption prevails, but if there is evidence the bubble bursts. Id.
Accordingly we vacate and reverse the judge's finding that the "presumption of non-entitlement to benefits under Section 35(e) (sic) has been established." We find that there was sufficient evidence for a finding that the § 35E presumption was overcome. See (Dec. 3-5; Ex. 4-5.) We remand for a finding whether or not, upon all the evidence, the employee would have remained in the labor force after age 65 but for the injury. If the judge finds that he would have, he is to determine the nature and extent of incapacity and the issue of an earning capacity.Scheffler's Case, 419 Mass. 251, 256 (1994); Frennier's Case 318 Mass. 635, 639 (1945).
Any subsequent claim by the employee for § 34A compensation is to be consolidated with the recommittal proceedings.
So ordered.
_______________________ Edward P. Kirby Administrative Law Judge
_________________________ Susan Maze-Rothstein Administrative Law Judge
This case is distinguishable from Harmon v. Harmon's Paint Wallpaper, 9 Mass. Workers' Comp. Rep. ___, as here there evidenceapart from the testimony of the employee and members of his family which corroborates their testimony on the issue of whether, but for the injury, the employee would have remained active in the labor market. Although I disagree that circumstantial evidence 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 other independent corroborating evidence recited in the majority opinion. The judge should have considered all the available evidence on the retirement issue, including the testimony from the employee and his wife.
I therefore join in the majority vote to remand.
________________________ Suzanne E.K. Smith Administrative Law Judge
Filed: January 26, 1996