Board No. 04564892Commonwealth of Massachusetts Department of Industrial Accidents
Filed: July 18, 1995
REVIEWING BOARD:
Judges McCarthy, Fischel, and Wilson.
APPEARANCES:
John E. Trefethen Jr., Esq., for the employee at hearing; James N. Ellis, Jr., Esq., for the employee on brief.
Arthur Jackson, Esq., for the self-insurer.
McCARTHY, J.
Anthony Polletta, a sixty-seven-year-old highway maintenance foreman, first injured his back at work on June 5, 1959. He reinjured it on October 25, 1968 and again in 1980. After each injury he returned to work despite ongoing back pain for which he took prescription pain medication. (Dec. 4.) In 1985 his back pain increased but he continued working until May 12, 1987 when he stopped due to “extreme back pain.” (Dec. 6.) The self-insurer accepted liability for this latest period of incapacity and paid weekly temporary total benefits under § 34 from May 12, 1987 until the maximum was reached on May 23, 1992. The employee thereafter filed a claim for permanent and total incapacity benefits under § 34A. A conference was held and the administrative judge awarded partial incapacity benefits under § 35 of the Act. Both parties appealed and after a full evidentiary hearing the judge determined that Polletta would be entitled to ongoing § 35 benefits but for the applicability of § 35E.[1]
The hearing judge’s decision included the following subsidiary finding:
Based on the evidence presented, I find that the Employee is 67-years old and that he, by his own credible testimony, “retired” in November of 1990 and began collecting his retirement benefits. Therefore, there is no question that the presumption on non-entitlement created under Section 35E, as amended, applies to this Employee. In terms of rebutting the presumption, the Employee testified that in 1987, he intended to work beyond age 65 and, had it not been for his injury, he would have continued working until the mandatory retirement of age 70. Having so found the Employee to be a credible witness, I am persuaded by his testimony that, but for the injury, he would have continued to work. However, the Employee’s testimony, no matter how convincing, cannot overcome the presumption unless it is corroborated by a non-family member. After carefully scrutinizing the record before me, there is not a single piece of evidence in this case to corroborate the Employee’s testimony. The only other lay witness called to testify in these proceedings was Eileen Paskow, a District Administrative Manager for the Employer, who testified that other individuals over the age of 65 had continued working for this Employer. While this fact suggests that other individuals intended to work past the age of 65, and perhaps that the working environment was conducive to older persons working there, it in no way establishes or corroborates the Employee’s intentions.
(Dec. 10-11.)
We have this case on appeal by the employee who raises three issues: whether § 35E, as amended, should be applied retroactively; whether the evidentiary standard presented in § 35E creates an irrebuttable presumption; and whether § 35E violates the equal protection clause of the United States Constitution by treating one class of injured workers differently from all others.
The employee’s first issue has been settled. Even though it was not in effect on the day of the employee’s injury the amended version of § 35E was applicable. Since the 1991 amendment was procedural its application is retroactive. See Brian P. Connolly’s Case, 418 Mass. 848 (1994). It was appropriate for the administrative judge to use it.
The employee’s second issue was faced by this board i Harmon v. Harmon’s Paint and Wallpaper,
8 Mass. Workers’ Comp. Rep. 432 (1994) after the hearing and filing of appeal in this case. In Harmon we determined that excluding all of an employee’s testimony regarding his plans after age sixty-five was not required.[2]
We determined that § 35E permits an employee to testify about background facts and circumstances which, if found credible, would lend support to his state of mind testimony that he had intended to remain in the work force after age sixty-five. As Harmon was not appealed, and unless an appellate court finds otherwise in some future case, our interpretation of § 35E should obtain.[3]
The argument that § 35E is unconstitutional is beyond the scope of our statutory authority. See § 11C; O’Brien’s Case, 9 Mass. Workers’ Comp. Rep. 16 (1995).
We recommit the case to the same administrative judge for further findings as to the applicability of § 35E in light o Harmon.
So ordered.
Judges Fischel and Wilson concur.
Any employee who is at least sixty-five years of age and 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 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. Amended by St. 1991, c. 398, § 66.