BOARD No. 04804289Commonwealth of Massachusetts Department of Industrial Accidents
Filed: May 25, 1995
REVIEWING BOARD:
Judges Wilson, McCarthy, and Fischel.
APPEARANCES:
Jerome E. Falbo, Esq., for the employee.
Andrew P. Saltis, Esq., for the insurer.
WILSON, J.
The employee, a top salesman for AMSCO, was diagnosed with persistent depression after enduring nearly one year of actions by his employer, including an unexplained pay cut, increased sales territory, threats of termination, unwelcome inquiries about retirement and non-specific allegations of customer complaints. He ceased working for AMSCO on March 7, 1989 and thereafter filed a claim for § 34 benefits for an emotional injury based on job stress that included threats of termination, age discrimination and forced retirement. The employee’s sixty-fifth birthday was February 8, 1991. The administrative judge denied the claim at conference and the employee filed a timely appeal. A de novo hearing was held in front of the same administrative judge. At the hearing the insurer raised the defenses of liability, disability and causal relationship, and asserted that the employer’s actions constituted a bona fide personnel action that precluded any award of benefits under §§ 1(7)(A) and 29[1] in the absence of intentional inflection of emotional harm. The insurer also cited the provisions of § 35E,[2] arguing that any award of §§ 34 or 35 benefits should end upon the employee’s sixty-fifth birthday.
The employee testified at the hearing as did his wife. Based on their testimony, the administrative judge made the following findings:
The employee had never planned to retire at age sixty-five, let alone sixty-three. He and his wife had discussed matters and it was expected that he would continue as long as his physical health permitted. Before the onset of his depression, the employee was in very good physical and emotional health. But for his emotional condition and the uncertainty of his pension, the employee would not have retired when he did. He now receives a monthly Social Security check of approximately $900; a pension from Ayerst Labs of roughly $90; a pension from West Chemical for $75; and an AMSCO pension of $160. His monthly income had fallen dramatically at a time when the employee, the household’s wage earner, continued to confront the cost of providing a daughter with a college education. (Dec. 16).
Following the hearing the administrative judge issued a decision wherein he ordered Liberty Mutual to pay § 34 benefits from March 8, 1989 to February 8, 1991. In his decision the administrative judge found that § 35E was applicable to the facts at hand in that the employee was at least sixty-five, had been out of the labor force for at least three years and was receiving specific pension benefits. (Dec. 23). With this finding, the administrative judge went on to state:
But for the applicability of Section 35E of the Act, the insurer would be further ordered to: continue payment of temporary total disability benefits until October 1, 1991; pay temporary partial disability benefits at this same rate from October 1, 1991 to June 13, 1992; pay temporary total benefits at the cited rate thereafter until October 1, 1992; pay temporary partial disability benefits at this same rate from October 1, 1992 to August 10, 1992; and thereafer, at the same rate, resume payment of temporary total disability benefits. (Corrected Order, dated August 29, 1994)[3]
This Case comes before us on appeals by both parties. Prior to consideration of the appeals we issued Harmon v. Harmon’s Paint Wallpaper, 8 Mass. Workers’ Comp. Rep. 432 (1994), which addressed the same § 35E issue we confront in this case. The employee filed a motion to recommit the case to the administrative judge pursuant t Harmon.[4] The insurer opposes the motion.
Harmon has not been appealed and unless our position as stated therein fails to withstand appellate scrutiny in some future case it should be followed.[5]
Accordingly, we allow the employee’s motion and recommit the case to the administrative judge for such further proceedings and findings as he deems appropriate, consistent with our decision i Harmon. Since we retain jurisdiction, the amended decision shall be forwarded to this reviewing board panel for final decision unless the parties settle the matter or the insurer withdraws its appeal.
So ordered.
Judges Fischel and McCarthy concur.
Any employee is 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.
8 Mass. Workers’ Comp. Rep. 432 (1994), held that § 35E permits the employee to testify as to background facts and circumstances which, if deemed credible, would serve to rebut the statutory presumption of non-entitlement to benefits as well as corroborate and lend credence to his testimony that he had planned to continue working after age sixty-five.
9 Mass. Workers’ Comp. Rep. 432 (1995).