Case of Tobin2/11/1997
Workers' Compensation Act, Compensation, Discontinuance of payments, Presumptions and burden of proof. Constitutional Law, Equal protection of laws. Due Process of Law, Presumption. Statute, Retroactive application. Federal Age Discrimination in Employment Act.
GREANEY, J. In this workers' compensation case, the employee, John Tobin, appeals from a decision of the reviewing board of the Department of Industrial Accidents affirming a decision of an administrative Judge that the employee's benefits were to be terminated pursuant to G. L. c. 152, § 35E. This statute provides that an employee over age sixty-five, who has been out of the labor market for at least two years and is eligible for social security benefits, or benefits from a public or private pension paid for in part or entirely by an employer, will not be entitled to total or partial incapacity benefits under G. L. c. 152, §§ 34 and 35, unless the employee can establish that, but for the injury, he or she would have remained active in the labor market. The statute goes on to create a rebuttable presumption of noneligibility for benefits for affected employees.
The employee's appeal was filed in the single Justice session of the Appeals Court pursuant to that court's rule 2:04, and was reserved and reported by the single Justice to a panel of that court. We transferred the appeal to this court on our own motion. We reject the employee's arguments that G. L. c. 152, § 35E, violates the equal protection and due process provisions of the Fourteenth Amendment to the United States Constitution and the Declaration of Rights of the Massachusetts Constitution, that the statute is substantive in nature and therefore cannot be applied retroactively to his case, and that the statute is preempted by 29 U.S.C. §§ 621 et seq. (1994), the Federal Age Discrimination in Employment Act (ADEA). We also reject the employee's request that the case be remanded for further evidence and findings on the issue of the application of the statute to him. Consequently, we affirm the decision of the reviewing board.
The background of the case is as follows. The employee began to work for the town of Stoughton in 1978. He worked mostly as a custodian at the Stoughton police department, where his duties included cleaning and maintaining the facility. On September 27, 1988, the employee injured his shoulder while working on an overhead light fixture. As a result of the injury, surgery was performed on the employee's injured shoulder, and he received workers' compensation benefits from October 15, 1988, through October 29, 1991. On the latter date, after the employee had been out of the labor force for more than two years, he was sixty-five years of age. Pursuant to G. L. c. 152, § 35E, as amended by St. 1991, c. 398, § 66, set forth below, an administrative Judge terminated the employee's workers' compensation benefits based on findings that the employee came within the provisions of § 35E, and he had not overcome the presumption created by the statute. The employee appealed from the administrative Judge's decision to the reviewing board where two members of the three-Judge panel rejected all his arguments. The third Judge Dissented on the basis that G. L. c. 152, § 35E, was preempted by the ADEA. This appeal followed the reviewing board's decision.
1. Equal protection. As an act of the Legislature, G. L. c. 152, § 35E, is presumed constitutional. Leibovich v. Antonellis, 410 Mass. 568, 576, 574 N.E.2d 978 (1991). "For the purpose of equal protection analysis, our standard of review under . . . the Massachusetts Declaration of Rights is the same as under the Fourteenth Amendment to the Federal Constitution." Dickerson v. Attorney Gen., 396 Mas
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