Tobin v. Town of Stoughton, No

Full title: JOHN TOBIN, EMPLOYEE VS. TOWN OF STOUGHTON, EMPLOYER, UNITED COMMUNITY…

Court: Commonwealth of Massachusetts Department of Industrial Accidents

Date published: Mar 28, 1995

BOARD No. 096564-88 (Mass. DIA Mar. 28, 1995)

Opinion

BOARD No. 096564-88

Filed: March 28, 1995

REVIEWING BOARD:

Judges Kirby, McCarthy and Smith.¹

1 Judge Kaplan heard oral argument and participated in panel deliberations but resigned before the panel reached its decision. Subsequently, Judge Kirby was substituted as the third panelist.

APPEARANCES:

Daniel C. Roache, Esq., for the employee (Tobin).

Joseph B. Bertrand, Esq., and Marie Leary, Esq., for the insurer (United Community Ins. Co.).

Paul M. Moretti, Esq., for the employee in Collins v. M.B.T.A. consolidated for oral argument.

Joseph Buckley, Jr., Esq., for M.B.T.A./self-insurer in Collins v. M.B.T.A. consolidated for oral argument.

Gerard L. Pelligrini, Esq.; Earlon L. Seeley, Jr., Esq.; William J. Pasquina, Esq.; Thomas F. Grady, Esq.; Joseph F. Agnelli, Jr., Esq., amici curiae.

SMITH, J.

In this case of first impression, we address the constitutionality and application of G.L.c. 152, § 35E, as amended by St. 1991, § 398. Section 35E governs the eligibility for §§ 34 and 35 weekly compensation benefits of persons age sixty-five or older, who are also eligible for social security old age benefits or an employer paid pension. The employee argues that this statutory section unconstitutionally deprives him of due process and equal protection under the United States Constitution and the Declaration of Rights of the Massachusetts Constitution. Amici briefs raise the further issues of whether the section violates the supremacy clause of the United States Constitution because it conflicts with the Federal Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., known as ADEA, and the Commonwealth's anti-discrimination statute, G.L.c. 151B. We are unpersuaded by the employee's constitutional contentions or the amicis' issues of federal supremacy and handicapped discrimination.² The panel unanimously urges further appellate review, although the majority votes to affirm the decision, because of the great public importance of the coordination of workers' compensation benefits with social security and pension benefits.

2 None of the parties argued that the administrative judge erred in addressing the § 35E issue. Nor did the employee request a remand for further findings of fact. The relief sought was a declaration that G.L.c. 152, § 35E is facially invalid. For these reasons, a remand for further findings of fact is inappropriate. See G.L.c. 152, § 11C which restricts the Reviewing Board's power to recommit for further findings of fact to "appropriate" circumstances.

Factual Background

The issues are best understood in the context of Tobin's individual claim for compensation. John Tobin received a personal injury arising out of and in the course of his employment on September 27, 1988. The injury has been described as an exacerbation of preexisting tendonitis, chronic impingement syndrome with chronic pain and discomfort, and a small partial tear of the rotator cuff with degenerative arthritis. (Dec. 6, 7.) As a result of the injury, Tobin was totally incapacitated from October 15, 1988 until December 14, 1988, at which point he recovered sufficiently to perform light work. From December 14, 1988, Tobin has been restricted against lifting more than ten pounds and lifting overhead with his non-dominant left arm. Tobin would be able to work as a dispatcher, a job he held in the past. Because of his injury limitations, he is unable to return to his pre-injury job. He does volunteer work for the Brockton Veterans Association.

The judge concluded that as of December 14, 1988 Tobin had recovered an earning capacity of $200 per week. He awarded a short period of § 34 total compensation followed by § 35 partial compensation from December 14, 1988 until October 29, 1991, when Tobin turned sixty-five. The judge concluded as a matter of law that Tobin was then no longer entitled to continuing compensation because he had not established that "but for" the injury he would have remained active in the labor market.

At the time of the hearing, Tobin was one week short of his sixty-sixth birthday. He testified that he had been collecting social security for one year but had not filed for retirement. He admitted that he had inquired about retirement "a few years ago, but I never filed papers." (Tr. 38.)

Tobin maintained that he was entitled to ongoing § 34 benefits for temporary total compensation incapacity. He produced no evidence that but for the injury he would have continued to work past age sixty-five. Although Tobin asserts in his brief that the judge prohibited or limited him from offering evidence that he intended to work beyond age sixty-five, the record does not support this allegation.

At the time of Tobin's injury, the workers' compensation act prohibited payment of § 35 partial weekly compensation benefits to retirees. G.L.c. 152, § 35E added by St. 1985, c. 572, § 45, provided:

Any person receiving old age benefits pursuant to federal social security law or receiving pension benefits paid in part or entirely by an employer shall not be entitled to benefits under section thirty-five, unless such employee can establish 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.

Under this version of § 35E, workers were entitled to receive continuing § 34 temporary total compensation benefits despite the receipt of social security benefits.

Section 35E was amended in 1991 to create a broader barrier to payment of workers' compensation benefits to the elderly. It now 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 pursuant to the federal social security act or eligible for 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.

St. 1991, c. 398, § 66, deemed procedural by § 107 and made effective on passage by § 111.³ Issues

3 The 1991 Legislature enacted multiple reforms designed to decrease the cost of workers' compensation insurance to employers. It considered many proposals to coordinate retirement benefits with workers' compensation benefits. See H-4861 which precluded a public employee, in some instances, from receiving partial benefits and a superannuation retirement and capped both payments at the employee's average weekly wage; S-1741 § 72 which proposed adding § 34 temporary total incapacity benefits to those previously prohibited by § 35E and, according to Senator Pines, chair of the Commerce and Labor Committee, was designed to prevent "double dipping"; Governor Weld's bill, S-1745 § 71 which proposed triggering the prohibition by eligibility rather than receipt of social security or pension benefits and adding § 34A permanent and total incapacity to the list of prohibited benefits; H-6357 § 67 which added the language about presumption of non-entitlement and the requirement of corroboration; H-6377 § 66 which limited the application of the section to persons sixty-five or older who had been out of the labor market for at least two years; and H-6410 which deleted the prohibition of § 34A permanent and total incapacity payments.

In this appeal we will address the constitutionality and application of § 35E, and its relationship with other provisions of the workers' compensation act and state statutes governing age and handicapped discrimination.

Standard of Review

Well-established rules govern our constitutional analysis. The Reviewing Board is by separation of powers provisions of the Constitution⁴ not a legislative body. It is composed of administrative law judges sworn to uphold the federal and state Constitution and the laws of the Commonwealth. Every legislative act comes before the Reviewing Board surrounded with the presumption of constitutionality. See Shelby Mutual Insurance Co. v. Commonwealth, 36 Mass. App. Ct. 317, 323, 631 N.E.2d 63 (1994) (presumption in favor of validity; heavy burden in attempting to show statute is unconstitutional), rev. granted, 418 Mass. 1102 (No. 06618, 1994). That presumption continues until the act under review clearly appears to contravene some constitutional provision. All doubts of invalidity must be resolved in favor of the law. See Soares v. Gotham Ink of New England, Inc., 32 Mass. App. Ct. 921, 922, 586 N.E.2d 32 (1992) (enforcement required unless constitutional conflict established beyond a reasonable doubt). It is not our province to weigh the desirability of social or economic policy underlying the statute or to question its wisdom; these are purely legislative matters.

4 Massachusetts Constitution, Pt. 1, Art. 30, provides for the separation of legislature, executive and judicial departments as follows:

In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.

It is the Reviewing Board's duty to uphold the statute under attack, if possible, rather than to defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that must be done. Guided by these principles, and based upon the following reasoning, we have concluded that § 35E does not violate the due process, equal protection or supremacy clauses of the United States Constitution, or the Declaration of Rights in the Massachusetts Constitution.

I. Section 35E Does Not Deny Equal Protection of the Laws in Violation of the Fourteenth Amendment of the U.S. Constitution

Tobin contends that § 35E violates constitutional requirements of equal protection by creating a classification based upon age. Section 35E creates a presumption that a person who has attained age sixty-five, has been out of the labor force for at least two years and is eligible for old age social security or employer-paid pension benefits is not entitled to continuing § 34 temporary total or § 35 partial compensation benefits. Tobin claims this age classification discriminates against the elderly because it creates a burden of proving benefit entitlement on elderly employees that is not placed on younger workers. We hold that § 35E's classification is constitutional.

A. Rational Basis Standard of Review

The first step in an equal protection analysis is determining the standard of review. In applying the equal protection clause to social and economic legislation, great latitude is given to state legislatures in making classification. Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 426 (1968). Because § 35E does not involve any discernible fundamental interest or affect with particularity any protected class, the test of constitutionality is whether the statute has a rational relation to a legitimate state interest. Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976); Soares v. Gotham Ink of New England, Inc., 32 Mass. App. Ct. at 921.

We examine § 35E under the rational-basis standard. This inquiry employs a relatively relaxed standard reflecting the Reviewing Board's awareness that the drawing of lines that create distinctions is a peculiarly legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible nor necessary. Shelby Mutual Insurance Co. v. Commonwealth, 36 Mass. App. Ct. at 326. Neither is mathematical nicety or perfect equality.

The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process, and that judicial intervention is generally unwarranted no matter how unwisely the court may think the Legislature has acted. Thus, the court will not overturn such a statute unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that it can only conclude that the Legislature's actions were irrational. Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 942-943, 59 L.Ed.2d 171 (1979). The Reviewing Board, as a member of the executive branch charged with upholding the Constitution, is bound by the same constraints. Samuels Pharmacy, Inc. v. Board of Registration in Pharmacy, 390 Mass. 583, 590, 458 N.E.2d 728, 733 (1983). Therefore, we begin our analysis presuming that the legislation is valid. See Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 489, 97 S.Ct. 1898, 1908-1909, 52 L.Ed.2d 513 (1977); Hughes, 19 Massachusetts Practice, Evidence, § 47 (1992 Supp.).

B. Benefit Coordination Purpose of the Legislation

Section 35E is a benefit coordination provision which distinguishes between persons eligible to receive social security old age and employer funded pension benefits and those who are not. We note that workers who cannot rebut § 35E's presumption of non-entitlement to benefits are nevertheless eligible for continuing medical care pursuant to G.L.c. 152, §§ 13 30. It is also significant that § 35E does not prevent persons who are permanently and totally incapacitated from receiving compensation pursuant to G.L.c. 152, § 34A.⁵

5 We do not reach the issue of whether the current exhaustion requirement of § 34A may be satisfied by a § 35E bar to payment of §§ 34 and 35 benefits. Statute 1991, C. 398, § 60 reinserted exhaustion language into § 34A ("following payment of compensation provided in sections thirty-four and thirty-five"). However, St. 1991, c. 398, § 106 made this change substantive and applicable only to injuries occurring after its effective date. Tobin's injury occurred in 1988 and thus his claim is governed by the version of § 34A previously in effect, enacted by St. 1985, C. 572, § 43, which did not require exhaustion. See Lazarczyk v. General Electric Co., 7 Mass. Workers' Comp. Rep. 170, 171 (1993).

The Workers' Compensation Act is a system of wage-loss protection. See Scheffler's Case, 419 Mass. 251, 256 (1994); Connolly's Case, 418 Mass. 848, 642 N.E.2d 296, 298 (1994). The leading treatise on workers' compensation states:

Wage-loss legislation is designed to restore to the worker a portion, such as one-half to two-thirds, of wages lost due to the three major causes of wage-loss: physical disability, economic unemployment, and old age. The crucial operative fact is that of wage loss; the cause of the wage loss merely dictates the category of legislation applicable. Now if a workman undergoes a period of wage loss due to all three conditions, it does not follow that he should receive three sets of benefits simultaneously and thereby recover more than his actual wage. He is experiencing only one wage loss and, in any logical system, should receive only one wage-loss benefit. This conclusion is inevitable, once it is recognized that workmen's compensation, unemployment compensation, nonoccupational sickness and disability insurance, and old age and survivors' insurance are all parts of a system based upon a common principle. If this is denied, then all coordination becomes impossible and social legislation becomes a grab-bag of assorted unrelated benefits.

4 A. Larson, The Law of Workmens' Compensation § 97.10 (1993).

Without some coordination provision, the combined periodic payments available under the Workers' Compensation Act and Social Security and/or a pension program could exceed the employee's pre-injury average weekly wage. The extent of this possible duplication is described, on a state by state basis, in Lofty v. Richardson, 440 F.2d 1144 (6th Cir. 1971), cert. denied, 404 U.S. 985, 92 S.Ct. 443, 30 L.Ed.2d 369 (1971). For a discussion of the "retiree" problem in Michigan, see White v. General Motor Corp., 431 Mich. 387, 415-419, 429 N.W.2d 576, 588-590 (1988).

When the system of wage-loss protection is viewed as a whole, avoiding duplication or overlapping of benefits which in combination may exceed the previous working income, appears to be a reasonable legislative objective. 4 A. Larson, The Law of Workmen's Compensation § 97.00 (1993).

C. Cost Saving Purpose of Legislation

Section 35E was enacted to reduce the extremely burdensome cost of workers' compensation premiums for employers who were paying into multiple benefit systems: workers' compensation, social security and pensions. In 1991, high insurance costs were driving employers from the state. Workers' compensation costs were devastating the 'Massachusetts business climate. The premium cost had skyrocketed from approximately 880 million dollars in 1985 to 2.4 billion dollars in 1991. Employers at this time were faced with a rate hike request of 45%. Legal Information Systems, Inc., The Workers' Compensation Act as Amended through Chapter 398 and 399 of the Acts of 1991, preface, vi (1992). For further evidence of these economic circumstances, see State House News Service reports during November and December, 1991.⁶ See also the legislative debate on December 12, 1991. These unofficial sources reveal that St. 1991, c. 398 was the result of heated debate about the crushing costs of workers' compensation and the necessity of lowering premiums to save jobs. In his emergency declaration to the Secretary of State on December 24, 1991, Governor Weld characterized the workers' compensation system as one in crisis, needing reform. "Any delay will have devastating consequences for Massachusetts workers, employers and insurers."

6 The State House News service reported on November 11, 1991: "After months of negotiations, the Commerce and Labor Committee last week produced legislation overhauling the troubled workers' compensation system. But hours before the committee was to vote on the measure, Gov. Weld slammed it, saying it would allow workers' comp premiums, already 'business' busters and 'job killers,' to continue climbing. The Weld bill was in turn scored [sic] by Democrats on the committee who sat through the night Thursday and shipped their own reform proposal to the state Senate. The committee bill is designed to save Bay State businesses $300 million, while the administration is seeking to slice up to $950 million from those costs. Employer premiums for covering injured workers have risen from $900 million in 1985 to $2.4 billion and insurers are asking for a 46 percent rate hike. The bill now before the Senate reduces employee benefits. . . . But administration officials served notice last week that the pending bill does not go far enough and would face a veto in its present form."
It reported on November 21, 1991: "In the democrat-controlled Senate, lawmakers ditched a workers compensation bill drafted by a fellow Democrat in favor of a bill filed by Republican Gov. Weld that proposes to save employers money by making steep cuts in compensation benefits. In giving the reform bill initial approval, a band of Democrats joined Republicans who argued that unemployment already at 8.9 percent, will increase unless benefits are reduced significantly. . . .
Senate supporters of the Weld bill claim it will save employers between 5 and 15 percent on premiums. . . . The insurance industry has asked the Division of Insurance to approve a 45 percent 1992 rate hike. . . .
It quoted Senator Pines as saying: "We had the following goals: return the system to the workers and the employers, create incentives to encourage workers to go back to work. . . . We are a laughing stock across the country."
The State House News Service reported on November 27, 1991: "Weld has said he will not sign any reform unless it represents savings for the business interests that support the $2.4 billion system."
It reported Sen. Lees to say on December 19, 1991: "In the long run, it's a good bill. It improves the system and makes it more efficient. The rate increase that was requested of over 45 percent that will drive business out of the Commonwealth will not happen under this bill. We've been on this for over six months and I feel the bottom line is this is the most important jobs bill that we will be voting on this session. We have lost over 300,000 jobs and a good portion of those were lost because of the workers comp premiums those companies had to pay. Both sides have given a great deal. I realize the chairman of commerce and labor would have like [sic] some other things but the bottom line is we must protect jobs here and this bill does that. . . ."

Section 35E limits the ability of employees eligible for old age social security and employer-funded pensions from also collecting workers' compensation.⁷ Such reduction in costs may allow the Legislature to make fewer benefit cuts for younger injured workers who are unable to collect company retirement or social security old age benefits.⁸ By making it more difficult to double-dip, it encourages the partially incapacitated employee to return to productive work.

7 For the official legislative history of § 35E, see note 2, supra. John Gould, of Associated Industries of Massachusetts, in his memorandum to Senator Lois Pines dated August 26, 1991, described the economic circumstances driving reform of the workers' compensation system and recommended that "[b]enefits should be reduced by not less than 50% if the worker receives Social Security retirement or private employer retirement benefits, since the employee has voluntarily removed himself or herself from the workplace. . . . Coordination with other benefits must be established and required. . . ." Id. at 9.

8 The State House News Service on November 21, 1991 reported Senator Pines as arguing for support of the Commerce and Labor bill: ". . . We enhance social security offset [ sic] provisions to prevent double dipping. These are designed to save hundreds of millions of dollars while retaining benefits of workers." (emphasis supplied)

D. The Classification Rationally Furthers the Purpose of the Legislation

Section 35E's non-entitlement presumption may be an imperfect solution to the problems faced by Massachusetts employers and injured workers. It does make it more difficult for a person eligible for old age benefits to collect workers' compensation. Nevertheless, there is a rational basis for the classification it creates.

Other state and federal courts faced with an equal protection attack on similar benefit coordination provisions have reached the same conclusion. See Peck v. General Motors Corp., 164 Mich. App. 580, 417 N.W.2d 547 (1987); Brown v. Goodyear Tire Rubber, 3 Kan. App. 2d 648, 599 P.2d 1031 (1979); McClanathan v. Smith, 186 Mont. 56, 606 P.2d 507 (1980); Meyer v. Ind. Comm'n of Colorado, 644 P.2d 46 (Colo.Ct.App. Div. III, 1981, re'h. den. 1981, cert. denied 1982); Sasso v. Ram Property Management, 431 So.2d 204 (Fla. 1st DCA 1983), 452 So.2d 932 (Fla.S.Ct. 1984), appeal dismissed, 105 S.Ct. 498, 83 L.Ed.2d 391 (1984) (statute terminated the right to wage loss benefits when injured employee reached age sixty-five and became eligible for social security benefits); O'Neil v. Department of Transportation, 468 So.2d 904 (Fla.S.Ct. 1985), cert. denied 474 U.S. 861, 106 S.Ct. 174 (1985); Brooks v. Island Creek Coal Co., 678 S.W.2d 791 (Ky.Ct.App. 1984); Acosta v. Kraco, Inc., 471 So.2d 24 (Fla.S.Ct. 1985), cert. denied 474 U.S. 1022, 106 S.Ct. 576 (1985); Boehm v. Ind. Comm'n of Colorado, 738 P.2d 804 (Colo.Ct.App. 1987); White v. General Motors Corp., 431 Mich. 387, 429 N.W.2d 576 (1988); Sampson v. Weld School Dist., 786 P.2d 488 (Colo.Ct.App. Div. 1, 1989); Dishon v. Maine State Retirement, 569 A.2d 1216 (1990); Rosa v. Warner Electrical Contracting, 849 P.2d 845 (Colo.Ct.App. Div. III, 1992); Harris v. Washington, 120 Wn.2d 461, 843 P.2d 1056 (1993); Berry v. H.R. Beal Sons, 649 A.2d 1101 (Me. 1994).

Because there is a rational basis for § 35E's classification, such classification does not deny equal protection of the law as guaranteed by the Fourteenth Amendment to the U.S. or the Massachusetts Constitution.

II. Section 35E Does Not Deprive Employees of Property Rights Without Due Process

There is no constitutionally protected right to ongoing workers' compensation benefits. The argument that the statutory right to receive workers' compensation benefits was vested on the date of injury and therefore constitutionally protected against legislative change was rejected by the Supreme Judicial Court in Connolly's Case, 418 Mass. 848, 852-853, 642 N.E.2d 296, 299 (1994). Compare the majority opinion in Connolly, 6 Mass. Workers' Comp. Rep. 241 with the dissenting opinion, id. at 265 et seq., adopted by the court, 418 Mass. at 853. (In the context of an imprisoned felon, who is out of work not because of incapacity but because of prison term, "[t]here is no merit to this contention.")

Workers' compensation provides social-welfare income-maintenance benefits. It is a safety net providing a means of income maintenance for persons whose injuries have cut off their regular income source, their weekly wages. The Workers' Compensation Act prescribes mandatory payments of benefits. In providing for such benefits, the Legislature did not covenant not to amend the legislation.

The right to recover workers' compensation benefits is itself wholly a creature of statute that was nonexistent at common law. The Legislature retains the power to restrict the benefits which it has itself created. See Richardson v. Belcher, 404 U.S. 78, 80-81, 92 S.Ct. 254, 256, 30 L.Ed.2d 231 (no constitutional limitation on the power of Congress to make substantive changes in the law of entitlement to public benefits); Decker v. Black Decker Mfg. Co., 389 Mass. 35, 43-46 (1983) (Article 11 of the Massachusetts Declaration of Rights does not create a vested interest in any statutory provision); Klein v. Catalano, 386 Mass. 701, 712, n. 16 (1982) ("We hold that the legislature may enact a statute that abolishes a common law cause of action without providing a substitute remedy if the statute is rationally related to a permissible legislative objective").

A workers' compensation award may be increased or decreased depending on subsequent events. MacKinnon's Case, 286 Mass. 37, 39 (1934). In that regard, it differs from a tort judgment which is fixed and payable without regard to whether predictions concerning the severity or longevity of the claimed damages are borne out by subsequent experience. A claim for further compensation or a complaint for discontinuance is not precluded by a prior decision. Mozetski's Case, 299 Mass. 370, 372, 13 N.E.2d 10, 11-12 (1938); Goulet v. APA Trans. Corp., 8 Mass. Workers' Comp. Rep. ___ (1994); Russell v. Red Star Express Lines, 8 Mass. Workers' Comp. Rep. ___ (1994); Connolly's Case, 418 Mass. 848, 642 N.E.2d 296 (1994). However, to increase benefits from partial to permanent and total, an employee must show more than a change in condition due simply to advancing age. Foley's Case, 358 Mass. 230, 232, 263 N.E.2d 471 (1970); McEwen's Case, 2 Mass. App. Ct. 63, 66, 308 N.E.2d 778 (1974). Even an award of § 34A permanent and total incapacity benefits may be revised upon a showing of changed circumstances. Gramolini's Case, 328 Mass. 86, 89, 101 N.E.2d 471 (1970).

The right to receive compensation depends on the injured worker's status, week by week, and is subject to change during any week. An injured worker may recover or return to gainful employment. See G.L.c. 152, §§ 8(2)(c) and 35D(1). The number of dependents may change. The worker may die from the causes unrelated to the injury or be imprisoned. See G.L.c. 152, § 8(2)(j) and (1). Whenever the status is called into question, the burden of proving entitlement to continuing benefits is placed on the employee. It does not deprive an employee of vested rights to require, upon attaining normal retirement age,⁹ proof that but for the injury, he or she would be working instead of retired.

9 The ADEA defines normal retirement age as age sixty-five. 29 U.S.C. § 623(i)(9)(A), incorporating by reference 29 U.S.C. § 1002(24)(B) and 26 U.S.C. § 411(a)(8).

Due process essentially requires protection from arbitrary governmental action. When viewed as part of a wage-loss compensation program, the burden of proving benefit entitlement imposed by § 35E does not penalize the injured worker. By preventing a duplication of benefits, the provision places the worker in the same position as fellow workers who have retired and are drawing old age social security or pension benefits. At that point the worker is no longer subject to wage-loss. It is only the workers' compensation benefits which are affected. After retirement, the wage loss experienced by a worker is not caused by the injury, but by retirement. See Connolly's Case, supra ("An employee who is incarcerated loses his ability to work because of the incarceration, not the injury. Employees can recover compensation benefits for loss of earning capacity, but during incarceration the employee may not recover because he or she has no earning capacity"). A worker may retain partial workers' compensation benefits by staying in the labor market and not retiring. The presumption of non-entitlement may be rebutted by evidence of efforts to return to work. Section 35E does not bar benefit payments to injured workers able to establish that they are deprived of current employment by their injury.

Under Massachusetts and federal constitutional principles, there exists no constitutionally protected property right in future workers' compensation benefits. Section 35E was a rational means of furthering legitimate legislative purposes. It therefore meets the test of substantive due process. See Romein v. General Motors Corp., 112 S.Ct. 1105, 1112 (1992); DiLoreto v. Fireman's Fund Insurance Co., 383 Mass. 243, 248-249, 418 N.E.2d 612, 615-616 (1981); Decker v. Black Decker Mfg. Co., 389 Mass. at 43; Soares v. Gotham Ink of New England, Inc., 32 Mass. App. Ct. at 922-924.

Section 35E does not violate an employee's right to procedural due process. It is a rule of law that makes proof of facts "A" (age sixty-five, out of labor force for at least two years, and eligibility for old age or employer paid pension benefits) compel conclusion of law "B" (non-entitlement to §§ 34 or 35 weekly compensation benefits) in the absence of evidence to the contrary. See Planning Bd. of Springfield v. Board of Appeals of Springfield, 338 Mass. 160, 163, 154 N.E.2d 349, 351 (1958) (presumption of regularity); Marotta v. Board of Appeals, 336 Mass. 199, 204, 143 N.E.2d 270, 274 (1957) (notice as affected person creates presumption of standing to appeal).

Section 35E does not shift the ultimate burden of persuasion, which always remains on the employee, to show incapacity resulting from the injury. See G.L.c. 152, §§ 34 and 35. It merely creates a factual inference that someone meeting criteria "A" is out of the labor market because of retirement and not impairment.

Section 35E provides that the presumption of non-entitlement may be rebutted by evidence warranting a finding to the contrary, to wit: that "but for the injury, he or she would have remained active in the labor market." In other words, evidence that the employee intended to continue working past normal retirement age to the current time rebuts the underlying inference that the current unemployment results from a decision to retire.

Section 35E operates to change the nature of evidence which will satisfy an insurer's burden of going forward with evidence in a discontinuance case. Proof of facts "A" (age sixty-five, out of labor force for at least two years, and eligibility for social security retirement on employer paid pension benefits) meets its burden of production. See Rolandi v. Boston Edison Corp., 33 Mass. App. Ct. 516, 522, 603 N.E.2d 211, 216-217, rev. denied, 414 Mass. 1102 (1992) ("An inference is an important means by which a party may satisfy his burden of persuasion sufficiently to transfer the burden of going forward to the other party, who may be in a better position to know certain facts essential to the case"). Obviously, the Legislature wanted to change the ordinary procedural rules once a claimant reached normal retirement age, by placing the burden of production on the employee who was in a better position than the insurer to produce evidence whether the loss of wages continued to be caused by the injury, or was now caused by age-related retirement. See Hughes, 19 Massachusetts Practice, Evidence § 42 (1961). Compare Russell v. Red Star Express Lines, 8 Mass. Workers' Comp. Rep. ___ (1994) (in a discontinuance case, insurer must go forward with evidence of improvement in the employee's condition or a lessening of the degree of incapacity in order to meet its burden of production).

Thus, at hearing, once the insurer establishes that the employee is at least age sixty-five, out of the labor force for two years and eligible for social security old age or employer paid pension benefits, the judge must assume a withdrawal from the labor market due to retirement unless and until the employee introduces evidence which would support a finding that but for the injury he or she would still be working. See Hughes, supra, § 43.

The quantum of proof necessary to rebut the presumption and allow for determination of the truth through examination of all the evidence, is simply "some" credible evidence contrary to the presumed fact that the current unemployment is caused by the desire to be retired.¹⁰ The presumption of retirement is not evidence; it is merely a rule in reference to evidence. Hughes, supra, § 43(2). If there is no evidence as to the employee's retirement plans, then the presumption prevails. When evidence is introduced, then an administrative judge is to consider the evidence. If the judge believes the evidence that but for the injury the employee would have remained active in the labor market, the presumption disappears. But where a witness testifies and the judge does not believe a word of that testimony, the presumption continues to control. In other words, the judge must consider the evidence and give weight to it only so far as it is found true. See Brown v. Henderson, 285 Mass. 192, 194, 196 (1934). Said another way, the presumption disappears upon proof which persuades the judge to find contrary to the presumed fact. Scaltreto v. Shea, 352 Mass. 62, 64 (1967). The judge may either infer from proof of the basic facts that the employee's wage loss stems from the desire to be retired or, in the alternative, may credit the evidence that but for the injury the employee would still be working. See Hughes, supra, § 44 (Supp. 1992). This rule regarding presumptions has been called the "bursting bubble theory." Id.

10 Note that this presumption differs from prima facie evidence. See G.L.c. 152, § 11A and § 7A. For a discussion of the difference between rebuttable presumptions and prima facie evidence, see Liacos, Handbook of Massachusetts Evidence at 234-242 (6th ed. 1994).

The employee argues that § 35E unconstitutionally prohibits his testimony and that of his family. We find no merit in this contention. Section 35E poses no testimonial bar. It merely provides: "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." The employee has the opportunity to testify and present other evidence, to examine his or her own witnesses including family members, to cross-examine the insurer's witnesses, to know what evidence is presented against the claim, to rebut such evidence, and to argue in person or through counsel on the issues of fact and law involved. Compare Meunier's Case, 319 Mass. 421, 427-428 (1946) (medical report statute denies due process). Any fragment of credible corroborating evidence satisfies § 35E's corroboration requirement and allows the administrative judge to consider the testimony of the employee and his family.

Section 35E creates no evidence and thus does not violate the constitutional principle that the decision must be based on the evidence presented at the hearing. Compare Haley's Case, 356 Mass. 678, 682 (1970) (decision based on evidence outside the record violates due process requirements).

We conclude that § 35E does not violate constitutional procedural due process requirements.

III. The 1991 Version of Section 35E Applies to Tobin's Case

Tobin argues that because he was injured prior to the effective date of § 35E (1991), the 1991 version is not applicable to him and the 1985 version applies. We disagree.

The plain language of the 1991 amendments indicates the Legislature intended the 1991 version of § 35E to be applied from its effective date onward, regardless of the date of injury. Connolly's Case, 418 Mass. 848, 642 N.E.2d 296 (1994); St. 1991, c. 398, § 107.¹¹

11 There is no procedural unfairness in applying the 1991 version of § 35E to Tobin's case as the hearing occurred after the effective date of the statutory change. Compare Riordan's Case, 362 Mass. 882, 289 N.E.2d 888 (1972) (procedural amendment did not apply to case heard prior to its effective date).

Accordingly, the judge did not err in applying the 1991 version of § 35E to Tobin's case.

IV. Section 35E Does Not Conflict with the Provisions of G.L. c. 152, §§ 75A and 75B and G.L.c. 151B

In resolving this issue, we note several well-established principles of statutory construction. First, the provisions of the Workers' Compensation Act are to be liberally construed to implement its beneficial purposes of providing wage-loss benefits for those injured workers who are unable to support themselves and vocational assistance for those who have recovered sufficiently to perform some type of work. See Devine's Case, 236 Mass. 588, 129 N.E. 414 (1921) and Duart v. Simmons, 231 Mass. 313, 318-319, 121 N.E. 10, 12-13 (1918) (general purpose of the workers' compensation act was to substitute in cases to which it was applicable, for common law or statutory rights of action and grounds of liability, a system of money payments based upon the loss of wages by way of relief for workers or dependents of workers who receive injury arising out of and in the course of their employment); Young v. Duncan, 218 Mass. 346, 349, 106 N.E. 1, 3 (1914) (the law "was a humanitarian measure enacted in response to a strong public sentiment that the remedies afforded by actions of tort at common law, and under the employers liability act, had failed to accomplish that measure of protection against injuries and relief in cases of accident which it was believed should be afforded to the workman"); Armburg v. Boston M.R.R., 276 Mass. 418, 421, 177 N.E. 665, 667-668 (1931) (judges directed to interpret the act to promote the accomplishment of its beneficent design).

Second, where there is doubt about the meaning of a phrase in a statute, the statute is to be construed in its entirety and the phrase will be given a reasonable construction which will enable it to be harmonized with the entire statute. Johnson's Case, 318 Mass. 741, 746-747, 64 N.E.2d 94, 97-98 (1945). Third, statutory construction should not lead to absurd results where reasonable construction will avoid it.

Finally, where a statute is ambiguous, the intention of the Legislature is the controlling consideration. The legislative intent in enacting a statute is to be gathered from a consideration of the words in which it is couched, giving to them their ordinary meaning unless there is something in the statute indicating that they should have a different significance; the subject matter of the statute; the pre-existing state of the common and statutory law; the evil or mischief toward which the statute was directed; and the main object sought to be accomplished by the enactment. None of its words is to be rejected as surplusage, and none is to be given undue emphasis. Each is to be accorded the appropriate weight and meaning which the context and examination of the statute as a whole show the framers of the statute intended it to have. Meunier's Case, 319 Mass. 421, 423, 66 N.E.2d 198, 200 (1946). It is for us to construe the Workers' Compensation Act, not to substitute our views for the declared legislative policy. Robinson's Case, 320 Mass. 698, 702, 71 N.E.2d 237, 239 (1947). With these principles in mind, we review the two statutes in question, G.L.c. 152, §§ 35E, 75A and 75B, and c. 151B, § 4.

Both the Workers' Compensation Act, c. 152, designed to relieve hardships experienced by employees injured while engaged in the performance of their work, and the anti-discrimination statute, c. 151B, aimed at barring discrimination based on handicap, are different and distinct parts of a statutory plan adopted by the Legislature for the enhancement of the public welfare. The two acts must be construed as harmonious and consistent parts of this general plan. See Pierce's Case, 325 Mass. 649, 656, 92 N.E.2d 245, 250 (1950) (construing the workers' compensation act and the employment security act harmoniously). Both acts provide protection to the medically impaired. See c. 151B, § 1(16) and (17); Scheffler's Case, 419 Mass. 251, 256 (1994) (discussing the medical basis of workers' compensation).

The Workers' Compensation Act does not conflict with c. 151B's protections for employment of the handicapped. Under c. 151B, § 4 it is unlawful for any employer to dismiss from employment or refuse to hire, rehire or advance in employment or otherwise, discriminate against a qualified handicapped person who is capable of performing a job with reasonable accommodations. Under c. 152, § 30H an employee may obtain vocational rehabilitation services if they are necessary and feasible to return the employee to suitable employment. These services include evaluation of the suitability of jobs offered by the injury employer, see § 35D(3), as well as job counselling and placement services if the employer has no suitable work. Under c. 152, § 75B(1), injured workers may qualify for handicapped status under c. 151B. Under c. 152, § 75A, injured workers are entitled to preference in hiring.

To prove a case of discrimination under c. 151B, an employee must show that he is handicapped, capable of performing the essential functions of a job and is excluded from that employment opportunity solely by reason of the handicap. Talbert Trading Co. v. Massachusetts Comm'n Against Discrimination, 37 Mass. App. Ct. 56, 59 (1994). A successful c. 151B plaintiff may recover lost earnings minus the amount of workers' compensation received; he may also recover pension benefits that would have inured to him but for the unlawful termination. Id. at 65.

An employee who has withdrawn from the labor market due to the desire to retire cannot meet his burden of proof under c. 151B. See Tunnicliff v. Department of Employment and Training, 35 Mass. App. Ct. 945, 625 N.E.2d 574 (1994) (employee who has resigned is not entitled to hiring preference). See also Lindsey v. Stroh's Brewery, 62 FEP Cases 1433, 64 EPD 43,030 (U.S. Dist. Ct., W. D. Tenn., W. Div. No. 90-2765, August 31, 1993) (inability to work due to injury disqualified employee from recovery under the ADEA of back pay, reinstatement, and front pay).

Section 35E is not inconsistent with c. 151B, § 4(16) as it merely prevents the collection of benefits by persons who are unable to establish that but for the injuries, they would now be working. An injured worker may successfully meet his burden under c. 152, § 35E by exercising the rights provided by the workers' compensation act, §§ 30H, 75A and 75B and the handicapped discrimination statute, c. 151B, § 4(16), and remaining active in the labor market.

We also note that although c. 151B contains a provision instructing the court to liberally interpret it for the benefit of the handicapped and to deem inapplicable any law inconsistent with any of its provisions, § 9, the scope of this directive has been specifically narrowed by other sections and court decisions. Chapter 151B regulates employers' conduct. However with state employer-employee relationships, it excludes from its coverage actions taken by the Commonwealth "pursuant to any other general or special law." G.L.c. 151B, § 4(1C). The court refused to infer a conflict between c. 151B and the state employee disability statute. In Milton v. Personnel Administrator, 406 Mass. 818, 826 n. 8 (1990), the court commented that G.L.c. 32, § 8(2)'s requirement that requirement [ sic] the personnel administrator obtain department head approval for reinstatement of a disability recipient did not curtail protections afforded to handicapped civil service employees under art. 1 of the Massachusetts Declaration of Rights, as amended by art. 106 of the Amendments, or G.L.c. 151B, § 4(16). Similarly here, because c. 152, § 35E only terminates benefits of those persons who cannot prove that they intended to continue working, it does not curtail the protections of c. 151B, § 4(16) which assist handicapped persons to be employed.

In Tobin's case, it is clear that no conflict existed between the employment rights of a qualified handicapped person and § 35E. Tobin claimed that he was totally disabled. (Tr. 21, line 20; Employee's Request for Findings of Fact, #10.) He did not seek employment. (Tr. 22.) He asserted no claim under c. 152 §§ 75A and 75B or c. 151B (4)(16)

V. Section 35E Does Not Violate the Supremacy Clause of the U.S Constitution

A. THE POWER OF THE COMMONWEALTH OF MASSACHUSETTS TO DEFINE ITS WORKERS' COMPENSATION SYSTEM IS PROTECTED BY THE TENTH AMENDMENT TO THE U.S. CONSTITUTION

The Tenth Amendment to the United States Constitution reserves to the states powers not specifically granted to the federal government.¹² Expansion of federal power is at the expense of powers reserved to the states by the Tenth Amendment. Workers' compensation has traditionally been a state responsibility.

12 The Constitution of the United States, Amendment X provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Massachusetts has established a complex and detailed regulatory scheme for ensuring a state-wide system of relief for workers injured on the job. It is designed to provide needed subsistence to injured workers. Among other provisions, the act allocates scarce state financial resources to injured state employees.

Massachusetts has a substantial interest in its workers' compensation statute. See Westvaco Corp. v. Campbell, 842 F. Supp. 1472, 1475-1476 (D. Mass. 1993). If the ADEA invalidates § 35E, such federal action would impair the Commonwealth's ability to structure integral operations in an area of traditional governmental function. See Hodel v. Virginia Surface Mining Reclamation Assn., 452 U.S. 264, 287-288, 101 S.Ct. 2352, 2365-66, 69 L.Ed.2d 1. Invalidation of a state workers' compensation provision by the federal law indisputably would represent a singular incursion by the federal government into territory long occupied by the states.

The Supreme Court has declined to imply ADEA federal supremacy over traditional state functions. For example, in Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991), the Supreme Court declined to apply the ADEA to invalidate Missouri's mandatory retirement age of 70 for state court judges. The Supreme Court reasoned that the state's authority was reserved to the states under the Tenth Amendment and guaranteed by the guaranty clause of Article 4, § 4, of the United States Constitution.¹³ Id., 501 U.S. at 457-458, 111 S.Ct. at 2399.

13 The Constitution of the United States, Art. 4, § 4, provides: "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion, and an Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."

Federal Circuit Courts have also respected the principles of state sovereignty and refused to imply ADEA preemption. See Brit v. Grocers Supply Co., 978 F.2d 1441 (1992 C.A. Tex.) (employees' state law claims of duress and emotional distress, allegedly resulting from employer's failure to recall employees following strike because of age discrimination, are not preempted by ADEA); EEOC v. Massachusetts, 858 F.2d 52, 54 (1st Cir. 1988) (facial conflict between ADEA and state constitution;¹⁴ lack of specific congressional intent to interfere with fundamental workings of state government); Frey v. State, 982 F.2d 399 (1993 C.A. 9 Cal.) (California National Guard does not violate ADEA when it requires active duty commissioned officers of state national guard who can no longer be called into active federal service to separate from active duty on their sixtieth birthday, since military departments of states, when taking actions affecting active duty officers of state national guard, are not employers within meaning of ADEA).

14 If a conflict in fact was found to exist, the Supremacy Clause of the United States Constitution would require precedence of the federal statute over the state constitutional provision. Id. at 53.

Where Congressional interference would upset the usual constitutional balance of federal and state powers, the Supreme Court required Congress to make its intention to do so unmistakably clear in the language of the statute. Gregory v. Ashcroft, 501 U.S. at 460, 111 S.Ct. at 2401. Thus, we start with the basic assumption that Congress did not intend to displace state law. Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2129, 68 L.Ed.2d 576 (1981).

Congress was undoubtedly aware of the hot debate nationally concerning coordination of retirement benefits and workers' compensation. This national debate has been on-going since the 1972 issuance of the Report of the President's National Commission on State Workmen's Compensation Laws. Section 3.27 of that report recommended a reduction in workers' compensation benefits based upon receipt of social security payments.

Since 1972, almost every state legislature has enacted some provision coordinating and offsetting workers' compensation benefits and pensions and/or social security.¹⁵ The purpose of these provisions has generally been two-fold: to avoid duplicative benefits and to limit the cost of workers' compensation insurance. In light of this national debate, it is likely that if Congress had intended to prohibit coordination of retirement benefits and workers' compensation, mandating allowance of double recovery, it would have done so explicitly.

15 See, e.g. Kansas S.A. 1975 Supp. 44-510b(j); Kansas S.A. 44-510f(c) 1974); Florida S.A. § 440.15(3)(b)3d (1982); Florida S.A. § 440.15(3)(b)4 (1983), Michigan C.L.A. § 418.354 (1982); Michigan C.L.A. § 418.373(1); 39 Maine R.S.A. § 62-B (1985); R.C. Washington 51.32.225 (1986); Colorado R.S. 8-51-101(1)(c) (1988); Colorado R.S.A. § 8-50-103 (1986), codified with changes as Colorado R.S.A. § 8-42-114 (1992).

Congressional interference with the decision of the people of Massachusetts about the structure of its workers' compensation system would upset the usual constitutional balance between state and federal powers. The power to legislate state benefit entitlement programs is a fundamental aspect of state sovereignty. For this reason, clear congressional intent to have federal law prevail is required to preempt and invalidate state law. Gregory, 501 U.S. at 460-464, 111 S.Ct. at 2400-2403.

B. The ADEA by its Terms does not Expressly Preempt the Massachusetts Workers' Compensation Act

Whether federal law preempts state action is largely a matter of statutory construction. L. Tribe, American Constitutional Law § 6-26, at 480 (2d ed. 1988). Where, as here, we are faced with competing federal and state concerns, it is imperative to have an explicit congressional expression of preemption before we conclude that a federal statute preempts the Commonwealth's workers' compensation statute.

The ADEA prohibits some types of age discrimination by employers, employment agencies and labor unions against employees. 29 U.S.C. reads in pertinent part:

§ 623. Prohibition of age discrimination

(a) Employer practices. It shall be unlawful for an employer —

(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age;

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age; or

(3) to reduce the wage rate of any employee in order to comply with this Act.

The ADEA's definition of an employer specifically includes states. 29 U.S.C. provides in pertinent part:

§ 630. Definitions

For the purposes of this Act —

(b) The term "employer" means

(2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States, or a corporation wholly owned by the Government of the United States.

The ADEA regulates the contractual relationship between employer and employee. However, workers' compensation laws are not an implied part of the employment contract. In General Motors Corp. v. Romein, the United States Supreme Court rejected the argument that a workers' compensation law is an implied term of an employment contract, saying that to so rule would incorporate into the employment contract workplace safety regulations, employment tax obligations and laws prohibiting workplace discrimination. 112 S. Ct. 1105, 1110-1111, 117 L.Ed.2d 328 (1992). In the Supreme Court's view, such construction would severely limit the ability of state legislatures to amend their regulatory legislation. Id., 112 S.Ct. at 111. Following the Supreme Court's rationale, we conclude that the Massachusetts workers' compensation statute is not a term of employment and does not fall under the purview of the ADEA.

Section 35E was not created by the Commonwealth in its role as an employer, but rather was enacted by the Legislature pursuant to the state's police power as part of a uniform system of compensation to protect the health, safety and welfare of all employees. While they may be subject to the provisions of the Workers' Compensation Act, G.L.c. 152, other than the legislative input that any citizen has, employers and insurers have no control over its provisions and are bound by it just as employees are.

Other state courts faced with the preemption issue have held that state workers' compensation laws do not constitute "compensation, terms, conditions or privileges of employment" within the meaning of 29 U.S.C. § 623 (a), and on that basis concluded that the ADEA did not invalidate provisions of their state workers' compensation acts. Peck v. General Motors Corp., 164 Mich. App. 580, 599, 417 N.W.2d 547, 555 (1987); O'Neil v. Department of Transportation, 442 So.2d 961 (Fla.App. 1983), 468 So.2d 904 (Fla.S.Ct. 1985), cert. denied 474 U.S. 861, 106 S.Ct. 174, 88 L.Ed.2d 144 (1985). We agree with their conclusion.

The ADEA contains no unequivocal expression of congressional intent to limit state sovereignty in areas outside of the state employer-employee relationship. Yet we know from other federal legislation that when Congress wishes to impose or forbid a condition for compensation, it is able to do so in explicit terms. See Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 488, 97 S.Ct. 1898 1908, 52 L.Ed.2d 513 (1977), citing the Federal Unemployment Tax Act, 26 U.S.C. § 3304(a)(5) ("compensation shall not be denied in such State to any otherwise eligible individual . . ."). The ADEA does not explicitly limit the state's ability to design its own workers' compensation system.

Because the ADEA does not expressly preempt state workers' compensation acts, the only other conceivable basis for preemption would be by implication. This avenue, argued by our dissenting colleague, is foreclosed by Tenth Amendment considerations. Nevertheless, because it is the basis for the dissent, we will address the issue of implied preemption.

C. The ADEA Does not Preempt the Massachusetts Workers' Compensation Act by Implication

Implied preemption occurs 1) when the pervasiveness of the federal regulation precludes supplementation by the states, 2) where the federal interest in the field is sufficiently dominant, 3) where the "object sought to be obtained by the federal law and the character of the obligation imposed by it . . . reveal the same purpose," or 4) where there is an actual conflict between the state statute and federal law. Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 299-300, 108 S.Ct. 1145, 1150-1151 (1988). None of these prerequisites exists here.

The ADEA is not so pervasive that it precludes supplementation by the states. In fact, by its own terms, supplementation is permitted. There is concurrent jurisdiction by federal and state agencies. See Oscar Mayer v. Evans, 441 U.S. 750 (1979). The federal interest in the field of age discrimination is not so dominant that it precludes state activity. 29 C.F.R. § 1625.10(g) specifically provides that the ADEA does not preempt state statutes prohibiting age discrimination in employment laws. See e.g., G.L.c. 151B.

The ADEA does not completely cover the field of Massachusetts employment. The ADEA does not cover all employers; it only covers a employer engaged in an industry affecting commerce and employing twenty or more employees in at least twenty calendar weeks during the current or proceeding year. 29 U.S.C. § 630(b). By contrast, the Massachusetts Workers' Compensation Act covers all employers, with very narrow exceptions, regardless of the number of their employees. See G.L.c. 152, § 1(5).

The ADEA has a different purpose from the Massachusetts Workers' Compensation Act. The ADEA acts to prevent the arbitrary and socially destructive discrimination on the basis of age. Lorillard v. Pons, 434 U.S. 575, 577, 98 S.Ct. 866, 868, 55 L.Ed.2d 40 (1978). It is intended to protect individuals against involuntary retirement caused by age.¹⁶ In contrast, the workers' compensation act protects workers against wage loss caused by injury. The workers' compensation system provides wage-replacement benefits, vocational rehabilitation, hiring preference and protection against handicapped discrimination.¹⁷

16 The ADEA contains an explicit statement of Congressional intent in § 621: "Congressional statement of findings and purpose
(a) The Congress hereby finds and declares that —

(1) in the face of rising productivity and affluence, older workers find themselves disadvantaged in their efforts to retain employment, and especially to regain employment when displaced from jobs;

(2) the setting of arbitrary age limits regardless of potential for job performance has become a common practice, and certain otherwise desirable practices may work to the disadvantage of older persons;

(3) the incidence of unemployment, especially long-term unemployment with resultant deterioration of skill, morale, and employer acceptability is, relative to the younger ages, high among older workers; their numbers are great and growing' and their employment problems grave;

(4) the existence in industries affecting commerce, of arbitrary discrimination in employment because of age, burdens commerce and the free flow of goods in commerce.

(b) It is therefore the purpose of this Act [ 29 U.S.C.S. §§ 621 et seq.] to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment." Dec. 15, 1967, P.L. 90-202, § 2, 81 Stat. 602.

17 See the prior section's discussion of hiring preference provisions of G.L.c. 152. An individual may avoid the restrictions of § 35E by establishing that his wage loss does not result from an age-related decision to retire.

The very structure of the ADEA indicates no conflicting overlap between it and wage-loss protection schemes such as workers' compensation. The remedies provided by ADEA are back pay, reinstatement and front pay. These remedies are inappropriate for an individual who claims inability to work. See Lindsey v. Stroh's Brewery, 62 FEP Cases 1433, 64 EPD 43,030 (U.S. Dist. Ct., W. Dist. Tenn, W. Div. No. 90-2765, August 31, 1993) (Prior state court finding in ADEA plaintiff's workers' compensation case that plaintiff suffered on-the-job injury in 1986 and that as result of such injury plaintiff was 100 percent permanently disabled estopped plaintiff from arguing, for purposes of later ADEA suit which alleged that he was fired in 1989 because of his age, that he is or has been able to work since 1986; thus, defendant employer was entitled to summary judgment because even if plaintiff prevailed on merits, he would not have been entitled to any relief. His inability to work since 1986 disqualified him from receiving backpay, made reinstatement impossible and made front pay inappropriate).

Our dissenting colleague argues that an actual conflict between the workers' compensation law and the ADEA exists because G.L.c. 152, § 35E compels involuntary retirement in violation of § 4(f) of the ADEA, 29 U.S.C. § 623 (f)(2). We disagree. Section 35E creates a shortcut to proof of the cause of wage loss in a workers' compensation case. See Hughes, 19 Massachusetts Practice, Evidence § 41 (supp. 1992). It merely creates a rebuttable presumption. See discussion of the nature of this presumption, under II, supra at 14.

Section 35E does not prohibit payment to all persons age sixty-five or older. It only applies to persons who have been out of the labor market for at least two years and are eligible for social security old age or employer-paid pension benefits. Under § 35E, employees have the option of foregoing workers' compensation benefits and remaining with the company on injury leave while awaiting recovery.

The choice between retirement and unpaid injury leave with the right to return to work does not constitute involuntary retirement. The employee's injury leave status is unrelated to age. See EEOC v. Westinghouse, 925 F.2d 619, 634 (3d Cir. 1991) and EEOC v. Westinghouse, 930 F.2d 329 (3d Cir. 1991) which neatly confront the Hobson's choice argument adopted by the dissent. In those cases, the U.S. Court of Appeals for the Third Circuit held that employer's severance pay plans, by giving laid-off employees the option to forego retirement and remain with the company on unpaid lay-off, did not constitute involuntary retirement prescribed by § 4 (f)(2) of the ADEA. The denial of severance pay to retirement eligible employee was not, by itself, a violation of the ADEA. Similarly here, an employee need not choose retirement but may instead remain on injury leave or return to the labor market, exercising his statutory rights to vocational assistance, c. 152, § 30H, job preference, c. 152, § 75A, and freedom from handicapped discrimination c. 152, § 75B and c. 151B. An employee need not waive any rights under the ADEA to receive workers' compensation benefits. Such waiver is the Hobson's choice which the federal courts have abhorred. Id. at n. 26.

No precedent exists that the ADEA actually conflicts with any state law outside of the field of the public employment contractual relationship. The only cases where the ADEA has been found to preempt state law are those involving the regulation of state employees. Although such cases make clear that through the ADEA, Congress has required states to regulate their own employer-employee relationships in a non-discriminatory fashion, these cases do not hold that Congress intended the ADEA to invalidate benefit coverage restrictions of a state's workers' compensation act.

From the volumes of cases that it has instituted, it is clear that the EEOC, the agency charged with enforcement of the ADEA, has been extremely active. Yet the EEOC has not asserted that the ADEA invalidates state laws other than those directly governing the relationship between the state and its employees. Our search of case law found no instance where the EEOC sought to invalidate a state workers' compensation statute on the basis of ADEA preemption. See the discussion of state statutes similar to § 35E and their listing, n. 14, supra. One could infer that the EEOC does not perceive an actual conflict between the ADEA and such state workers' compensation provisions.

Neither counsel nor our dissenting colleague has cited any case supporting preemption based an [ sic] implied conflict between the ADEA and a general state law governing subjects other than its own conduct as an employer. The principle [ sic] case on which they rely, EEOC v. Massachusetts, 987 F.2d 64 (1st Cir. 1993), provides no support for the implied preemption argument. In that case, there was a clear conflict between the statute regulating the state's relationship with its own employees and the ADEA. Such actual conflict does not appear here.

The employee argues that workers' compensation is closely related to "compensation, terms, conditions or privileges of employment" and therefore cannot be subject to age-related qualifications. We disagree, relying on federal court cases permitting discrimination based on age to prevent a double recovery of wage substitutes.

Integrated company plans to prevent "double dipping" do not violate the ADEA as they have a legitimate, nondiscriminatory justification for the disparate treatment of retirement-eligible employees. See EEOC v. Westinghouse, 930 F.2d 329 (3d Cir. 1991) and EEOC v. Westinghouse, 869 F.2d 696, 707 (3d Cir. 1989), 925 F.2d 619, 622 (3d Cir. 1991) (denial of severance pay to retirement eligible employees, by itself, could not be a violation of the ADEA). Congress's apparent intention was to promote the hiring of older workers, to eliminate mandatory retirement, but not to require equality of benefits received under employee benefit plans. EEOC v. Maine, 644 F. Supp. 223, 227 n. 5 (1986, D.C. Me. 1986). The federal district court held that a benefit plan which restricted award of disability retirement benefits to those employees who became permanently disabled prior to reaching age 60 and which plan granted lower, normal service retirement benefits to workers who became permanently disabled after reaching age 60 fell within ADEA employee benefit plan exception because plan was bona fide and was not a subterfuge to evade the ADEA. Id.

The theory that discrimination on the basis of pension eligibility is equivalent to discrimination on the basis of age was rejected by the Fourth Circuit Court of Appeals. The court held that the employer did not violate the ADEA by conditioning pension-eligible employees' participation in a voluntary reduction in force program on their acceptance of deferral of certain pension benefits. Britt v. E.I. DuPont de Nemours Co., 768 F.2d 593 (4th Cir. 1985). The court reasoned that such payments represented compensation for giving up the right to earn wages. As such they were a wage substitute and not a fringe benefit. The court decried the fact that the claimant was seeking a double recovery, retirement benefits and the wage substitute of severance pay. Because receipt of retirement benefits was based on the termination of wage earning, the employer did not require the employees to give up anything of value not also required of others in the operation of its program. The court said that the employees "did not lose their right to work or their right to retire immediately with full pension benefits. The fact that such employees had to accept deferral of pension benefits if they chose the VROF option simply reflects the fact that voluntarily accepting severance pay for giving up the right to work is functionally equivalent to additional wage earning." Id., 768 F.2d at 595. Workers' compensation benefits are a similar wage substitute to which the same rationale may be applied.

EEOC regulations have construed the term "employee" under the ADEA to apply only to active employees, and not to include retirees. 29 C.F.R. 1625.20(a)(4) (1983). For that reason, a Florida court held the requirement of 29 U.S.C. § 623(g)(1) was designed to reduce Medicare expenses for the working aged and did not cover the insurance rights of retirees. Provident Life Acci. Ins. Co. v. Leonard, 526 So.2d 721, 722, rehearing denied (Fla.App. D. 3 1988). If the term "employee" under the ADEA means only those active in the labor market, there is no conflict with § 35E which aims to exclude from benefits those who are retired.

Another method of analysis is to consider workers' compensation insurance as analogous to an employee benefit plan subject to the § 4(f)(2) exception. Under § 4(f) of the ADEA, 29 U.S.C. § 623 (f)(2)(1989), age-based employment decisions taken pursuant to "the terms of . . . any bona fide employee benefit plan such as retirement, pension, or insurance plan, which is not subterfuge to evade the purposes of this Act . . ." were exempt from the provisions of the ADEA. In 1989, the Supreme Court in Public Employees Retirement System of Ohio v. Betts, 492 U.S. 158, 177-182, 109 S.Ct. 2854, 106 L.Ed. 134, held that the ADEA exempted all provisions of a bona fide employee benefit plan from the purview of the ADEA, unless the employee demonstrated that a benefit plan was subterfuge for discrimination in the non-fringe-benefit aspects of the employment relationship. According to the Betts court, "Congress left the employee benefit battle for another day, and legislated only as to hiring and firing, wages and salaries, and other nonfringe-benefit terms and conditions of employment."

Federal courts have recognized that retirement, insurance and pension plans inevitably take age into account and make distinctions based on age in order to maintain financial integrity. The words of § 623(f)(2) (1989) "retirement, pension or insurance plan" are indicative of the types of plans in which Congress intended to allow age distinctions; they are of the type whereby the cost of benefits increases with age. The typical retirement and pension plan inevitably takes account of age. "The desirable goals of actuarial soundness and full funding, to help achieve which ERISA was created, cannot be achieved without differences that take account of age. It was in recognition of that basic fact of life and death that § 623(f)(2) was included in the Act." EEOC v. Westinghouse, 725 F.2d 211, 224 (1983). See Alessi v. Raybestos-Manhatten, Inc., 451 U.S. 504, 101 S.Ct. 1985, 68 L.Ed.2d 404 (1981) (treasury regulation permitting integration of pension benefits with other benefits provided by state and federal law was not inconsistent with ERISA).

In response to Betts, Congress enacted the Older Workers Benefit Protection Act ("OWBPA") on October 16, 1990, P.L. 101-433. The OWBPA overturned Betts by amending the ADEA so as to prohibit discrimination against older workers in all employee benefits except when justified by cost considerations. See 29 U.S.C. § 623.¹⁸ The OWBPA did not, however, apply to the States, their political subdivisions, instrumentalities or agencies until October 16, 1992. There is no indication that the 1991 Legislature enacted G.L.c. 152, § 35E as a subterfuge to avoid the provisions of the ADEA. See EEOC v. State of Maine, 644 F. Supp. 223, 227 (D.Me. 1986) (bona fide employee benefit plans whose age-based provisions antedate the ADEA are [per se] exempt under § 4(f)(2) unless they require mandatory retirement).

18 29 U.S.C. § 623 (f) now provides, in pertinent part: "It shall not be unlawful for an employer . . . (2) to take any action otherwise prohibited under subsection (a), (b), (c), or (e) of this section — . . . (B) to observe the terms of a bona fide employee benefit plan — (i) where, for each benefit or benefit package, the actual amount of payment made or cost incurred on behalf of the older worker is no less than that made or incurred on behalf of a younger worker, as permissible under section 1625.1-, title 29, Code of Federal Regulations (as in effect on June 22, 1989); or (ii) that is a voluntary early retirement incentive plan consistent with the relevant purpose or purposes of this Act. Notwithstanding clause (i) or (ii) of subparagraph (B), no such employee benefit plan or voluntary early retirement incentive plan shall excuse the failure to hire any individual, and no such employee benefit plan shall require or permit the involuntary retirement of any individual specified by section 12(a) [ 29 U.S.C.S. § 623(a)]. because of the age of such individual. . . ."

In addition, § 105(e) of the OWBPA provides that changes to the ADEA wrought by the OWBPA do not apply to certain series of existing benefit payments:

CONTINUED BENEFIT PAYMENTS — Notwithstanding any other provision of this section, on and after the effective date of this title and the amendments made by this title, . . . this title and the amendments made by this title shall not apply to a series of benefit payments made to an individual or the individual's representative that began prior to the effective date and that continue after the effective date pursuant to an arrangement that was in effect on the effective date. . . .

§ 105(e) of OWBPA, Pub.L. 101-433, as amended Pub.L. 102-236, § 9, Dec. 12, 1991, 105 Stat. 1816.

Tobin began receiving workers' compensation benefits prior to October 16, 1992. Therefore, assuming arguendo that workers' compensation is in the nature of a fringe benefit regulated by the OWBPA, specifically by terms of that Act the OWBPA is inapplicable to his case.

Despite the OWBPA amendments to the ADEA, the ADEA still would not invalidate G.L.c. 152, § 35E by implication. The ADEA permits cost-based age discrimination. 29 U.S.C. § 623(f)(2). It evidences a policy of coordinating retirement benefits and disability benefits. It permits a reduction of disability benefits by pension benefits for which an employee is eligible, 29 U.S.C. § 623(1)(3) (b) provides, in pertinent part:

(1) Minimum age for retirement benefits not a violation; other lawful benefit provisions. Notwithstanding clause (i) or (ii) of subsection (f)(2)(B). . . .

(2) It shall not be a violation of subsection (a), (b), (c), or (e) solely because an employer provides a bona fide employee benefit plan or plans under which long-term disability benefits received by an individual are reduced by any pension benefits (other than those attributable to employee contributions) . . .

(B) for which an individual who has attained the later of age 62 or normal retirement age is eligible.

The ADEA permits benefit reductions to be triggered by attaining "normal retirement age." 29 U.S.C. § 623(i) provides:

(8) A plan shall not be treated as failing to meet the requirements of this section solely because such plan provides a normal retirement age described in section 3(24)(B) of the Employee Retirement Income Security Act of 1974 [ 29 U.S.C.S. § 1002(24)(B)] and § 411(a)(8)(B) of the Internal Revenue Code of 1986 [ 26 U.S.C.S. § 411(a)(8)(B)].

(9) For purposes of this subsection

(A) The terms "employee pension benefit plan," "defined benefit plan," "defined contribution plan," and "normal retirement age" have the meanings provided such terms in § 3 of the Employee Retirement Income Security Act of 1974 ( 29 U.S.C. § 1002).

(B) The term "compensation" has the meaning provided by § 414(s) of the Internal Revenue Code of 1986 [ 26 U.S.C.S § 414(s)].

In other words, the ADEA incorporates the ERISA definitions of normal retirement age. 29 U.S.C. § 1002(24)(B) and 26 U.S.C. § 411(a)(8) contain the following identical provisions:

The term "normal retirement age" means the earlier of

(A) the time a plan participant attains normal retirement age under the plan, or

(B) the latter of

(i) the time a plan participant attains age 65, or

(ii) the 5th anniversary of the time a plan participant commenced participation in the plan.

(emphasis supplied).

Even after passage of the OWBPA, EEOC regulations allow coordination of employer-paid benefits with those provided by the government. 29 C.F.R. § 1625.10(e).¹⁹ Furthermore, the regulations continue to permit a reduction in the duration of long-term disability benefits based on age. 29 C.F.R. § 1625.10(ii).²⁰

19 29 C.F.R. § 1625.10(e) provides in pertinent part: "An employer does not violate the Act by permitting certain benefits to be provided by the Government, even though the availability of such benefits may be based on age. . . ."

20 29 C.F.R. § 1625 (ii) provides in pertinent part: ". . . It is not unlawful to cut off long-term disability benefits and coverage on the basis of some non-age factor, such as recovery from disability. . . . An employer which provides long-term disability coverage to all employees may avoid any increases in the cost to it that such coverage for older employees would entail by reducing the level of benefits available to older employees. An employer may also avoid such cost increases by reducing the duration of benefits available to employees who become disabled at older ages, without reducing the level of benefits. In this connection, the Department would not assert a violation where the level of benefits is not reduced and the duration of benefits is reduced in the following manner:
(A) With respect to disabilities which occur at age 60 or less, benefits cease at age 65.
(B) With respect to disabilities which occur after age 60, benefits cease 5 years after disablement. . . .
(emphasis supplied).

Based on the language of the ADEA and its interpretation by the agency charged with its enforcement and the federal courts, one may infer that the ADEA permits states to make age-based distinctions to ensure the actuarial soundness of their workers' compensation systems.

The Massachusetts workers' compensation system underwent significant reforms in 1991 in response to serious concerns about the financial viability of the entire workers' compensation system. The amendment to § 35E was only one of the many changes designed to reduce the cost of workers' compensation premiums. Why should we infer that the ADEA impliedly prohibits the Commonwealth from conditioning workers' compensation benefits of employees who have attained age sixty-five when the ADEA permits such age discrimination in the plans which it explicitly regulates?

Congress has not made clear its intent to have the ADEA invalidate state workers' compensation laws. Therefore, we conclude that the ADEA does not preempt G.L.c. 152, § 35E.

VI. Conclusions

Section 35E meets the constitutional standards of equal protection and due process and is consistent with ADEA and antidiscrimination protections for the handicapped. We therefore affirm the administrative judge's decision.

So ordered.

Judge Kirby concurs.

Wilson, J.

Although not a member of the panel deciding this case, I agree with the majority decision.

McCARTHY J., (dissenting).

If there is one area where there is no room for dispute it is the legislative direction regarding decisions of hearing judges. Decisions are to "set forth the issues in controversy, the decision on each and a brief statement of the grounds for each such decision." See G.L.c. 152, § 11B. Although the dispute centers on the meaning and application of § 35E, this section is not identified as an issue anywhere in the transcript of the hearing proceedings nor in the decision where the judge frames the issues before him. In fact, it first sees the light of day when the judge finds that:

On October 29, 1991, the employee became sixty-five years old. He has been out of the labor force for at least two years. He worked for the town of Stoughton beginning in 1978. See, generally, M.G.L.c. 32 (Dec. p. 8).

The hearing judge then went on to make a general finding as follows:

I find that as of October 29, 1991, the employee is not entitled to weekly compensation payments because the employee comes within the provisions of § 35E of the Act. Furthermore, I find that the employee has not overcome the presumption contained within said section. (Dec. p. 9).

There is but one allusion in the record to the employee's plans with respect to retirement. In the course of cross-examination, the employee testified that although he inquired about retirement several years prior to the hearing, he "never filed papers." (Tr. 38). This one shred of evidence standing alone is scant foundation for any finding with respect to the employee's intentions. Moreover, since the filing of the judge's decision the reviewing board has confronted and interpreted the § 35E restriction on the use of uncorroborated testimony of the employee or members of his family. See Harmon v. Harmon's Paint and Wallpaper, 8 Mass. Workers' Comp. Rep. 432 (December 30, 1994). There we held that § 35E did not disqualify all of an employee's testimony regarding retirement at age sixty-five. Only the employee's state of mind testimony is to be disregarded. Thus the judge, if he believes the employee, must decide the probative value of the employee's statement that he did not file retirement papers. The reviewing board decision in Harmon was not appealed. The majority neither refers to nor relies on Harmon. If we choose not to follow our own decisions, why do we take such pains in writing them?²¹ Were it not for the larger issues raised by this appeal, this case would be appropriate for recommittal for further findings with respect to § 35E particularly in light of Harmon.

21 The Mass. Appeals Court under its standing order assigns appeals from our decisions to single justices who are "individually responsible for all aspects of the appeals assigned to them, from entry to final judgement." Standing Order Governing Appeals from the Industrial Accident Review Board, adopted effective January 1, 1990. Decisions of the single justices are private and ostensibly without precedential value. Infrequently a case is reviewed by a three judge Appeals Court panel or taken up by the Supreme Judicial Court. Published Appeals Court decisions and Supreme Judicial Court decisions set precedent. But where there is no appeal from a reviewing board decision, it seems that the reviewing board decision should be followed — otherwise, why did the legislature require its publication?

The majority opinion states that we are not critics of the legislature. True, but neither are we cheerleaders for that body. The Massachusetts Appeals Court has noted that in a large legislative enterprise such as the overhaul of G.L.c. 152 oversights are likely. See Arbogast's Case, 26 Mass. Appeals Court 719, 722 (1988). For reasons that follow I believe that the legislature got § 35E wrong and the lead opinion perpetuates the error.

Federal Preemption

It is my view that the Supremacy Clause of Article VI, section 2 of the Constitution of the United States results in the preemption of § 35E by the Federal Age Discrimination in Employment Act (ADEA). In Commonwealth v. Vitello, 367 Mass. 224 (1975), the Supreme Judicial Court considered federal preemption in the context of a state wiretapping statute. Although the federal statute expressly allowed for concurrent state regulation, the court was guided by the general standard applied in preemption cases in determining whether provisions of the Massachusetts statute were preempted by Federal law and therefore invalid under the Supremacy Clause.²² The Court described that standard as follows:

22 This Constitution and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land; and the Judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
U.S. Constitution, Article VI, Section 2.

. . . [A]mong other considerations, whether the State statute impairs the superintendence of the field by Congress. Florida Lime Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142 (1963). A State statute would be preempted where the State law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Hines v. Davidowitz, 312 U.S. 52, 67 (1941). Goldstein v. California, 412 U.S. 546, 560-561 (1973). Cf. Bloom v. Worcester, 363 Mass. 136, 151-152 (1973). Preemption, however, is not to be lightly inferred where Congress has allowed for concurrent State regulation as long as the State statute is substantially similar in design and effect to the Federal enactment or where the State statute is, according to congressional directive, more restrictive. Askew v. American Waterways Operators, Inc. 411 U.S. 325 (1973).

Thus, if a challenged state statute is an obstacle to the accomplishment and execution of the full purposes and objectives of Congress then the question of preemption must be addressed. Bloom v. Worcester, 363 Mass. 136, 151 (1973), citing Hines v. Davidowitz, 312 U.S. 52, 67 (1941).

When reaching an issue of Federal law, the Supreme Judicial Court has stated,

Though we always treat their decisions with deference, we are not bound by decisions of Federal courts except the decisions of the United States Supreme Court on questions of Federal law. Commonwealth v. Montanez, 388 Mass. 603, 604 (1983).

Where Federal law controls and no U.S. Supreme Court decisions shed light on an issue, the Supreme Judicial Court will "decide the questions as we think [the U.S. Supreme Court] would decide it." LaBante v. New York, New Haven Hartford Railroad, 341 Mass. 127, 130 (1960). In doing so the court gives respectful consideration to such lower Federal court decisions as seem persuasive. Id. at 130.

The ADEA acts to prevent arbitrary and socially destructive discrimination on the basis of age. E.E.O.C. v. Commonwealth of Mass., 987 F.2d 64, 71 (1st Cir. 1993); see also Lorillard v. Pons, 434 U.S. 575, 577 (1978). It is intended to protect individuals against involuntary retirement. The ADEA contains an explicit statement of Congressional intent:

§ 621 Congressional statement of findings and purpose

(a) The Congress hereby finds and declares that —

(1) in the face of rising productivity and affluence, older workers find themselves disadvantaged in their efforts to retain employment, and especially to regain employment when displaced from jobs;

(2) the setting of arbitrary age limits regardless of potential for job performance has become a common practice, and certain otherwise desirable practices may work to the disadvantage of older persons;

(3) the incidence of unemployment, especially long-term unemployment with resultant deterioration of skill, morale, and employer acceptability is, relative to the younger ages, high among older workers; their numbers are great and growing and their employment problems grave;

(4) the existence in industries affecting commerce, of arbitrary discrimination in employment because of age, burdens, commerce and the free flow of goods in commerce.

(b) It is therefore the purpose of this Act [ 29 U.S.C. § 621 et seq.] to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment. Dec. 15, 1967, P.L. 90-202, § 2, 81 Stat. 602.

In my view the application of G.L.c. 152, § 35E fosters rather than prohibits age based discrimination. Thus it is impossible to both apply § 35E and obey the ADEA's unmistakable policy directives. Because I believe that federal ADEA provision § 4(a) and ADEA policies conflict with § 35E — a state statutory provision, the state provision must yield, preempted in accordance with the Supremacy Clause, Article VI of the United States Constitution.

In E.E.O.C. v. Commonwealth of Mass., 987 F.2d at 64, the U.S. Court of Appeals ruled that G.L.c. 32, § 90F, which required seventy-year-old state employees to pass a medical examination as a condition of continued employment, conflicts with and violates the ADEA and is therefore preempted under the Supremacy Clause. Although the original plaintiff passed the physical examination in question and was allowed to continue her employment,²³ and while no employees had been forced to retire pursuant to c. 32, § 90F, the Equal Employment Opportunity Commission nevertheless brought suit, alleging a violation of and preemption by 29 U.S.C. § 623(a), § 4(a) of the ADEA, which provides:

23 Citing Lindsey v. Stroh's Brewery, 62 FEP 1433 (U.S. Dist. Ct. W. Dist. Tenn. August 31, 1993), the majority submits principles of preemption do not apply because the ADEA and workers' compensation remedy schemes do not overlap. The plaintiff in E.E.O.C. v. Comm. of Mass. did not need to resort to ADEA remedies prior to successful invocation of preemption by the federal statute. And the plaintiff in Lindsey, who first received workers' compensation benefits for 100% disability and was later estopped from bringing an ADEA based action, could have achieved a different result were he instead partially incapacitated.

It shall be unlawful for an employer (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age; (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age; or (3) to reduce the wage rate of any employee in order to comply with this chapter.

The First Circuit maintained that the appropriate test of preemption in the absence of an express congressional command is whether state law actually conflicts with federal law. E.E.O.C. v. Mass., 987 F.2d at 70, citing Cipollone v. Liggett Group, Inc., 112 S.Ct. 2608, 2617 (1992). State law conflicts with federal law when compliance with both is an impossibility. Id. and cases cited. Where the conflict test is satisfied, the state law is preempted. Id. ²⁴

24 The majority relies on Gregory v. Ashcroft, 501 U.S. 452 (1991) to assert that the power to legislate state benefit entitlement programs is a fundamental aspect of state sovereignty which requires clear congressional intent to have federal law preempt state law. Ashcroft reached this conclusion only as to a state's constitutional power to qualify its judiciary. Beyond that limited zone the court was not reluctant to apply the ADEA to the employment arenas of state and local governments as a valid exercise of Congress' powers under the commerce clause. Id. at 467-468 citing, E.E.O.C. v. Wyoming, 460 U.S. 226 (1983). The 10th Amendment analysis, that would extend the meaning of Ashcroft, does not affect the implied preemption of § 35E considered here. Section 35E is but one provision of a very large legislative enterprise. Its preemption by Federal law does not abridge the legislature's power to fashion benefit entitlement programs.

The court found c. 32, § 90F irreconcilably conflicts with the ADEA ". . . because enforcement of the Massachusetts law creates an obstacle for the implementation of the goals of the ADEA." Id. at 71, citing, Western Air Lines v. Criswell, 472 U.S. 400, 409 (1985); Trans World Air Lines v. Thurston, 469 U.S. 111, 120 (1985).

Although the statutory provision at issue in E.E.O.C. v. Mass. was based on age plus an independent criterion — passing a medical examination — the court concluded that Massachusetts allowed "age to be the determinant as to when an employee's deterioration will be so significant that it requires special treatment." Id. at 71. The court then stated as follows:

Such a conception of and use of age as a criteria for decline and unfitness for employment strikes at the heart of the ADEA.

Id. at 71. With nearly exclusive reliance on the rulings of the U.S. Supreme Court, the First Circuit stated,

The United States Supreme Court has explained that the ADEA is of particular force when mandatory retirement is at issue, as it is here. Criswell, 472 U.S. at 410, 105 S.Ct. at 2749. In the words of the Court, "[t]he legislative history of the 1978 Amendments to the ADEA makes quite clear that the policies and substantive provisions of the Act apply with especial force in the case of mandatory retirement provisions. Id. Moreover, "[t]hroughout the legislative history of the ADEA, one empirical fact is repeatedly emphasized: the process of psychological and physiological degeneration caused by aging varies with each individual." Id. at 409, 105 S.Ct. at 2749. Thus, the ADEA was enacted in large part to prevent mandatory retirement based on "innocent" misperceptions as to the abilities of older employees, as well as more insidious "business" judgments as to their cost.

E.E.O.C. v. Mass., 987 F.2d at 71; see also Western Airlines, Inc. v. Criswell, 472 U.S. 400, 410 (1985).

Like § 90F, the age seventy medical examination requirement contested in E.E.O.C. v. Mass., § 35E relies on age as the basis for applying evidentiary conditions not imposed on younger workers. Under § 90F, age was combined with a requirement that an employee take and pass a physical exam. The requirement did not apply to workers under age seventy. Under § 35E any employee who is at least sixty-five is presumed unentitled to weekly incapacity benefits if he has been out of the labor force for at least two years and is eligible for public or private old age benefits. This presumption can be overcome if the employee can establish that, but for the injury, he would have remained active in the labor market. These conditions are not imposed on younger workers.

There is additional guidance on the relationship between age as a triggering device and resultant retirement in E.E.O.C. v. Mass. The Commonwealth argued that involuntary retirement would result because an employee failed the medical exam and not because age seventy had been attained. The court rejected the argument, relying on Los Angeles Dept. of Water Power v. Manhart, 435 U.S. 702 (1978), a case involving a policy requiring women to contribute more than men to a pension fund because women as a group live longer and collect greater benefits. The Department defended its policy in Manhart, contending longevity rather than sex was the basis for the distinction. In rejecting the contention, the Supreme Court held that but for their sex women would not be required to pay more for benefits and, although as a class women live longer, all individuals in the classes do not share the class characteristics. E.E.O.C. v. Mass., 987 F.2d at 72, citing Manhart, 435 U.S. at 707-708.

Emphasizing that fairness to individuals rather than classes is required under Title VII, the First Circuit ruled that § 90F does not fall within the exception in 29 U.S.C. § 623 (f)(1); § 4(f)(1) of the ADEA, which applies to "differentiation . . . based on reasonable factors other than age. . . ." The condition required under § 90F — taking and passing a physical examination — was predicated on reaching the age of seventy. Here it is age sixty-five that triggers the other § 35E conditions for continuing eligibility for workers' compensation benefits. It is noteworthy that under c. 152 younger workers may collect weekly incapacity benefits without regard to receipt of other means of support such as long or short term disability income policies. See c. 152, § 38.²⁵

25 Section 38 provides:

Except as expressly provided elsewhere in this chapter, no savings or insurance of the injured employee independent of this chapter shall be considered in determining the compensation payable thereunder, nor shall benefits derived from any other source than the insurer be considered in such determination.

Arguably, § 35E constitutes an involuntary retirement provision in the same manner as was found true for § 90F in E.E.O.C. v. Mass. Neither per se requires retirement at a particular age. Both regard age as a threshold determination requiring only those workers who attain a certain age to meet the additional conditions not applicable to younger workers. As a practical matter, § 35E has the effect of a forced retirement provision in its application to at least some workers.²⁶ An injured employee, recipient of c. 152 weekly incapacity benefits, who is absent from the labor force for two years due to total or partial incapacity and is eligible for retirement benefits can lose his entitlement to workers' compensation upon reaching age sixty-five. The obvious effect of this circumstance is to give an injured worker the "choice" of living with no benefits despite a lost or diminished earning capacity²⁷ or of accepting retirement benefits for which he is eligible.²⁸ The worker therefore "elects" retirement out of economic necessity.²⁹ It should be emphasized that the Hobson's choice³⁰ created by § 35E should not be confused with similar legislation in other jurisdictions where weekly compensation is reduced under a formula which includes social security benefits in arriving at the weekly indemnity amount. Here the sixty-five year old employee must forego all weekly compensation benefits unless he can overcome the presumption of retirement.³¹

26 The ADEA's prohibition of mandatory retirement was highlighted by the Supreme Court:

The legislative history of the 1978 Amendments to the ADEA makes quite clear that the policies and substantive provisions of the Act apply with especial force in the case of mandatory retirement provisions. The House Committee on Education and Labor reported: Society, as a whole, suffers from mandatory retirement as well. As a result of mandatory retirement, skills and experience are lost from the work force resulting in reduced GNP. Such practices also add a burden to Government income maintenance programs such as social security. H.R. Rep. No. 95-527, pt. 1, p. 2 (1977), Legislative History 362. Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 410-411 (1985).

27 See c. 152, § 35D (earning capacity is based on actual earnings or earnings an employee is capable of earning in his previous job or one available to the employee that he is capable of performing, which includes light duty work).

28 Employees who sustained incapacitating injuries who were therefore obliged to collect compensation in lieu of earning wages are usually deprived of the opportunity to contribute to and enhance their eventual pension and retirement benefits by contributions made during what would likely have been their highest paid years of work.

29 As argued in the amicus brief filed by Attorney Grady,

That election often forecloses his return to the same employer, where his experience and benefits might be maximized. Such forced retirement can cause hardships for older persons . . . [and] thrusts him into a situation of unemployability. . . . If he chooses to return to the work force, he cannot [return] to the employer from which he has retired, albeit involuntarily. Thrust back into the job search competing with hordes of unemployed, college educated, healthy young prospects with low expectations of remuneration, this individual, age sixty-five plus, partially or totally disabled for two years or more, and collecting a pension from a former employer, is not likely to reenter the workforce with unbridled success.

30 For readers who, like the writer, are familiar with the phrase but not its history, "Hobson's choice" is defined as, "an apparently free choice that offers no real alternative. [After Thomas Hobson (1544-1631), English liveryman, from his requirement that customers take either the horse nearest the stable door or none.]" American Heritage Dictionary, 2nd College Ed. 1985.

31 This unhappy choice is only forced by a worker receiving § 34 or § 35 benefits. The reason for excluding a permanently and totally incapacitated worker from the conundrum is unclear.

In Betts v. Hamilton County, 897 F.2d 1380 (6th Cir. 1990), the Sixth Circuit considered an Ohio state retirement plan that provided two options to an ill sixty-one-year-old worker who could no longer perform her job. She could take unpaid leave with no benefits or length-of-service retirement paying $158.50 a month. Had the employee been under age sixty, however, the plan would have permitted a third option — disability payments of $355.02 a month with the possibility of recall if her condition improved. The court stated the issue under the ADEA as being, ". . . when an employer forces terms of retirement on an employee for mixed reasons, one of which is age, does the employer violate the 'involuntary retirement' proviso . . ." under the statute? Id. at 1382. Relying on Trans World Airlines v. Thurston, 469 U.S. 111 (1985), the court ruled that the benefits denied to the employee were at the very least a "privilege of employment" or an "employment opportunity" under § 4 (a)(1). Betts v. Hamilton County, 897 F.2d at 1382. Concluding that forced retirement violates the bona fide retirement plan exemption under the ADEA, the court found the employer's "coercive conduct" to constitute prohibited age discrimination. Id. at 1383.

Under § 35E, age sixty-five pension eligibility combines with a two-year labor force absence resulting in "mixed reasons" for the presumption of non-entitlement³² to workers' compensation benefits. Absent a worker having attained the age of sixty-five, the additional conditions imposed under § 35E do not apply. Although the issue of a bona fide retirement plan under the ADEA is not at issue, the court's reasoning in Betts v. Hamilton County applies to the instant case where the practical effect of § 35E is to "coerce" retirement, which violates § 4(a)(1) of the ADEA.

32 The fact that the presumption of non-entitlement can be rebutted does not negate the initial discriminatory effect of § 35E. Only older workers are subject to the presumption requiring rebuttal.

Therefore, age rather than other reasonable factors is the basis under § 35E for differentiating among workers receiving weekly incapacity benefits. Section 35E also "forces retirement," in a manner similar to § 90F and is not exempt from the ADEA prohibition against discrimination pursuant to the "reasonable factors" exception. See E.E.O.C. v. Mass., 987 F.2d at 74.

Under the ADEA it is both unlawful to discriminate on account of age as to terms, conditions or privileges of employment and to deprive any individual of employment opportunities because of age. 29 U.S.C. § 623(a). Pursuant to the ADEA, the phrase "compensation, terms, conditions, or privileges of employment" encompasses all employee benefits, including such benefits provided pursuant to a bona fide employee benefit plant."³³ 29 U.S.C. § 630(1) I believe that compliance with the terms of § 35E requires employers³⁴ to discriminate against aged individuals³⁵ with respect to their conditions, privileges or opportunities of employment. I submit that workers' compensation is itself a condition, privilege and opportunity of employment for all workers in Massachusetts who have not expressly reserved their common law rights. Under the Workers' Compensation Act, an employee obtains statutory rights in return for giving up common law rights of action against his employer for workplace injuries.³⁶ Compensation under the Act provides relief from the inability to earn wages with weekly incapacity payments determined under §§ 34, 34A and 35.³⁷ See Foley v. Polaroid Corp., 381 Mass. 545, 552 n. 5 (1980) citing Ahmed's Case, 278 Mass. 180, 183 (1932).

33 In the context of determining the parameters of the more restrictive "terms and conditions" of employment under the National Labor Relations Act, the Supreme Court has held that even the concerns of non-bargaining unit employees such as retirees may be bargainable issues if they vitally affect the terms and conditions of active employees' employment. Allied Chemical and Alkali Workers v. Pittsburgh Plate Glass, 404 U.S. 157, 179 (1971); Ford Motor Co. v. N.L.R.B., 441 U.S. 488, 502 (1979). In the cases before us, active employees have a vital interest in the application of § 35E due to both its impact on receipt of benefits and on retirement.

34 29 U.S.C. § 630(b) provides in relevant part:

The term "employer" means a person, state, political subdivision or any state agency or instrumentality engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.

The ADEA prohibits discriminatory practices by an employer based on an employee's age. The fact that a state statute, c. 152, § 35E, mandates non-entitlement to benefits under certain circumstances, resulting in discontinuance of benefits by an employer's workers' compensation insurer, does not insulate the employer from the prohibitions of the ADEA. Preemption applies to a conflict between statutory provisions. An employer's compliance, through the agency of its insurer, with a state enactment, in conflict with Federal law, sets the factual stage for the role played by the preemption doctrine.

35 The term "individual" as used in 29 U.S.C. § 623(a), § 4(a) of the ADEA (. . . unlawful to discriminate against any individual) is not defined in the ADEA. The term employee means an individual employed by an employer; employees of state or municipal governments are not exempt from the ADEA. 29 U.S.C. § 630(f).

36 Whether an employee's loss of entitlement to benefits under § 35E resurrects his common law rights lurks in the background of this debate.

37 Pension benefits for which an employee is eligible may, of course, be substantially less than even partial incapacity benefits. We note that the maximum entitlement to weekly benefits under § 34 is $585.66.

Relying on Connolly's Case, 418 Mass. 848 (1994), the lead opinion takes the view that there is no constitutionally protectable right to workers' compensation benefits. I read Connolly differently. In Connolly the court addressed a newly enacted provision that suspends benefits during a period of incarceration. Id.; G.L.c. 152, § 8(2)(j). In so doing, it resolved the procedural or substantive effect of § 8(2)(j). The Connolly court ruled incarcerated employees lose their ability to work by virtue of imprisonment, not due to their injury, and so have no vested right during incarceration. Connolly, supra at 852-853. However, the court was not called upon — nor did it reach — the nature of rights to benefits before or after the period of suspension. Id. at 853 and n. 3.

At the core of chapter 152 lies the employee/employer relationship. A worker becomes an "employee" for purposes of c. 152, § 1(4) only where the parties enter into a contract of hire, express or implied, oral or written. Castagna's Case, 310 Mass. 325, 327 (1941). This contract creates for the employee a legal entitlement and reasonable expectation of receiving certain benefits (the consideration) from the employer as a fair exchange for providing personal, physical and/or mental labor under the employer's direction and control.

The rights of employees and employers have been legislatively balanced in light of this contractual relationship. From its inception, the general purpose of the Act was to substitute its provisions for preexisting legal rights and remedies respecting industrial injuries. Cox's Case, 225 Mass. 220, 223-224 (1916); see also Meley's Case, 219 Mass. 136, 139 (1914) (statutory provisions to be broadly construed for the protection of injured employees whose compensatory rights at common law the statute has taken away). By submitting themselves to provisions of c. 152, employees "acquire a limited, although substantial, right to be insured" against the financial loss following workplace injuries. LaClair v. Silberline Manufacturing Co., Inc., 379 Mass. 21, 27 (1979) (emphasis supplied).

Further, § 35E deprives the older individual of a fundamental "employment opportunity" that derives from an allowance of time to recover from workplace injuries and return to the workforce. See 29 U.S.C. § 623(a)(2); see also Trans World Airlines v. Thurston, 469 U.S. 111 (1985). For these reasons, an employee who becomes incapacitated for work as a result of industrial injury is entitled to receive workers' compensation benefits during his incapacity.

As a condition, privilege and opportunity of employment, workers' compensation is an inevitably prominent part of the consideration for workers entering a contract for hire. As such, the right to benefits once established by an agreement to compensate or by departmental adjudication cannot be terminated without resort to constitutional due process. Meunier's Case, 319 Mass. 421, 427-428 (1946); Haley's Case, 356 Mass. 678, 682 (1970). Nor can the respective rights of the parties be taken away without compensation. See Casieri's Case, 286 Mass. 50, 55 (1934). Within the statutory scheme, so long as the condition of incapacity adjudicated or agreed upon continues to obtain, the right to the benefits flowing therefrom also exists. The court in Connolly's Case neither abandoned nor overturned its earlier assessments of rights to workers' compensation benefits discussed above.

The majority urges that the ADEA speaks to the contractual relationship between employees and employers and, relying on General Motors Corp. v. Romein, 503 U.S. 181, (1992), states that workers' compensation laws are not an implied term of the employment contract. In Romein, an employer claimed that Michigan's retroactive workers' compensation enactments interfered with the express terms of pre-existing collective bargaining contracts. Id. at 186. The Romein court voiced the valid concern that deeming workers' compensation enactments as implied provisions of express employment contracts could obliterate the Contract Clause protections for parties' closed transactional agreements. Id. at 187. In the end, Romein, therefore pivoted on the Contract Clause.³⁸ Id.; U.S. Const. Article I, § 10.

38 [1] Article I, § 10, cl. 1 of the Constitution provides: "No State shall . . . pass any . . . Law impairing the Obligation of Contracts."

By focusing on the compensation, terms, conditions, privileges and opportunities of employment, the ADEA establishes contractual boundaries for employee and employer relations in the very broadest sense. See 29 U.S.C. § 623(a). The ADEA instructs us that conditions, privileges and opportunities of employment which, for age based reasons, coerce or permit involuntary retirement are impermissible. That is why the case at bar turns on preemption issues and not, like Romein, on the Contract Clause.

While the majority intimates the entire Act is a "fringe benefit," I regard workers' compensation as a condition, privilege and opportunity of employment in Massachusetts. I disagree that workers' compensation is a fringe benefit for employees paid for by employers and thus could qualify for § 623(f)(2) exemption from the ADEA prohibition against age discrimination. No direct case law or statutory basis has been advanced to fortify the notion that c. 152 benefits are merely fringe benefits.

Unlike fringe benefits which are most often voluntarily undertaken by employers, the Workers' Compensation Act has been compulsory for most employers since 1943. Price v. Railway Express Agency, Inc., 322 Mass. 476, 478 (1948); LaClair, supra at 26. Employers are required to provide private or selfinsurance for payment of compensation benefits guaranteed by the Act. LaClair, supra at 26; G.L.c. 152, § 25A. Penalties including fines, stop work orders and even imprisonment loom for employers who fail to comply with the statutorily imposed duties. LaClair, supra; G.L.c. 152, § 25C. The obligation to provide workers' compensation coverage is as central to the contract of hire as is the employer's obligation to provide a reasonably safe workplace. It should not, therefore, be construed a "fringe benefit."

The lead opinion asserts that § 35E could qualify for exemption under 29 U.S.C. § 623(f)(2), § 4(f)(2) because it was not enacted as a subterfuge to evade the purposes of the act. In 1994 the Equal Employment Opportunity Commission's interpretation of the ADEA spoke clearly on how forced retirement provisions are to be analyzed:

Any provision of an employee benefit plan which requires or permits the involuntary retirement of any individual . . . on the basis of age is a subterfuge to evade the purpose of the Act and cannot be excused under section 4(f)(2).

[§ 623(f)(2)].

EEOC Subpart A — Interpretations § 1625.10(d)(7) July 1994 (Emphasis supplied).

Involuntary retirement provisions by design or effect evade the purpose of the ADEA and cannot qualify for exemption. Section 35E has an involuntary retirement impact. Where, as here, involuntary retirement results from the application of § 35E, cost based justifications that qualify certain fringe benefit plans for 29 U.S.C. § 623(f)(2), § 4(f)(2) exemption are immaterial.

The majority also argues no preemption can be found because the ADEA does not completely cover the field of Massachusetts employment in contrast with the Workers' Compensation Act that covers all employers. Citing, G.L.c. 152, § 1 (5). While c. 152 is compulsory for most employers, pursuant to G.L.c. 152, § 25B, certain employers — "the commonwealth or the various counties, cities, towns and districts . . ." are still optional participants in the workers' compensation system. Moreover, police and fire-fighters operate under their own systems. G.L.c. 41 et seq. Thus, c. 152 cannot rightly be said to cover the "entire" employment field either. The fact that the ADEA and the Workers' Compensation Act are not exactly coequal in their extension proves little. That the fields occupied differ in shape does not give license to ignore the Congressional prohibition against discrimination based on age, which extends to all employers covered by the ADEA.

The 1991 amendments to the Act were designed in large measure to reduce the spiraling costs of workers' compensation incurred by Massachusetts business. Numerous amendments accomplished this legitimate policy purpose. The most obvious were benefit decreases under §§ 34 and 35, both as to amounts of benefits as determined by a percentage of an employee's average weekly wage, and duration of benefits. It is dubious that § 35E will effect cost savings.³⁹ While unlikely to save employers' premium money, § 35E will burden government pension systems by singling out older injured workers for special treatment and denying their entitlement to workers' compensation benefits. It forces the choice between retirement benefits — no matter at what level and without reference to any minimum — or no benefits at all while a worker endeavors to recover from his injuries and return to employment. Although the Legislature has broad authority to set workers' compensation policy within the parameters of coverage under the Act, it cannot consistent with the ADEA use age as a test for distinguishing among classes of workers' entitlement for compensation benefits.⁴⁰ As stated in E.E.O.C. v. Mass.,

39 Assuming arguendo, that the equal protection analysis hinges on whether a rational basis supports the age classification under § 35E and that, in the absence of legislative history there is sound basis for asserting as state purpose the saving of employers' money, I question whether § 35E accomplishes that supposed purpose. Section § 35E is unlikely to either reduce employers' compensation premiums, or to reduce obligatory payments on behalf of wage earning employees. Compensation premiums are based on experience rating within the prior three to five year time period, with insurer reserves based on the projected cost of a case for the duration of incapacity. Prudence would require an insurer to set reserves based on the assumption of payment beyond age sixty-five. If, beyond the experience rating period, insurers were relieved of its obligation to pay weekly compensation, employers would not be recompensed. Employer premiums are likely to remain static with an enhanced burden on the public social security system. There is no basis for the majority's suggestion that § 35E effectively limits costs for workers' compensation insurance.
Nor can § 35E save premium dollars by eliminating "double payment" as the insurer in its brief suggests:

Section § 35E was amended to relieve the employers from making double payments. In the ordinary course of business, an employer would usually contribute to some type of pension fund and/or social security on behalf of the employee. That employer also has to pay increasing premiums for workers' compensation insurance. The purpose of the amendment was to stop the double payment by employers or the so-called "double-dipping" by the employer into its pockets to pay for both workers' compensation premiums and social security. Thus, the classification set forth by M.G.L.c. 152, § 35E is rationally related to the purpose . . . (Insurer's Brief at 9).

For wage earning employees, all employers must pay social security taxes, compensation premiums, unemployment insurance contributions, etc. Once a worker sustains an industrial injury and receives workers' compensation in lieu of wages, the incapacitated worker no longer earns wages for purposes of an employer's payroll. Barring a collective bargaining agreement to the contrary, employers may cease payments on an individual's behalf to social security, unemployment. pension, group health insurance and the like, and thus make no "double payment," or "double dip" into employer pockets as claimed. Since the law, regardless of § 35E, does not compel employers to make payments for the same individual as both a wage earner and an incapacitated non-wage earner, § 35E cannot be rationally related to the stated goals.

40 Prior to its amendment in 1991, § 35E made no mention of age or eligibility for benefits. It simply provided for a presumption of non-entitlement to partial incapacity benefits when a worker was actually receiving pension benefits.

The entire point of the ADEA is to force employers to abandon previous stereotypes about the abilities and capacities of older workers. Employers may still regulate and condition employment, but they may no longer immediately turn to age as a convenient, simple criterion.

Id. at 71.

For the proposition that § 35E achieves benefit coordination, the majority mentions legislation and case law of various sister states involving social security offsets. The majority contends that, "almost every state legislature has enacted some provision coordinating and offsetting workers' compensation benefits and pensions and/or social security," thereby implying that Massachusetts shares the common national wisdom in this area. To the extent this implies other states have adopted § 35E-like provisions, it is refuted by a review of the authorities. First, private pensions ordinarily provide no occasion for reduction of workers' compensation benefits. 4 A. Larson, The Law of Workers' Compensation, § 97.51(a) at 18-88 to 18-99 (1993). Further, only twenty-three states coordinate public pension plans and/or social security benefits with their workers' compensation statutes. Of those, thirteen states have offset public pension plans. Some of the thirteen also overlap with the seventeen states that apply a deduction to workers' compensation benefits via some kind of social security benefit offset. Id. § 97.35(a) at 18-32, 18-37 and 18-56 to 18-67. This means over two-thirds of the states do not offset worker's compensation benefits by reason of social security benefits received.

The bulk of states that accommodate social security by offset of workers' compensation do so for social security disability benefits as mandated by federal law, not for social security retirement benefits. The social security offset legislation and cases rely on reduction not elimination of workers' compensation benefits when there is receipt not eligibility for social security benefits. See Brooks v. Island Creek Coal Co., 678 S.W.2d 791, 792 (Ky.Ct.App. 1984) (court interpreted old age benefit eligibility as meaning receipt, i.e. "drawing and securing" such benefits); see also McClanathan v. Smith, 606 P.2d 507, 511 (Mont. 1980) (while reduction is permissible, 100% offset against social security benefits declared unconstitutional). Finally, nearly half of the seventeen states with some type of social security offset limit the ensuing workers' compensation benefit reductions based on fairness in consideration of the employee's contribution to his own social security entitlement. Larson, supra § 97.35(e) at 18-47.

It appears that only Florida allowed for termination of workers' compensation benefits due to eligibility for social security retirement benefits. That provision gave rise to an abbreviated line of cases. Sasso v. Ram Property Mgmnt., 431 So.2d 204 (Fla.Dist.Ct.App. 1983); O'Neil v. Dept. of Transportation, 468 So.2d 904 (Fla. 1985); see also Acosta v. Kraco, Inc., 471 So.2d 24, 25 (Fla. 1985) (commenting on Sasso and O'Neil); see also Peck v. General Motors Corp., 417 N.W.2d 547, 555 (Mich.Ct.App. 1987) (favorable mention of holding in O'Neil). Because of Sasso's age he was not then protected by the ADEA. However, given subsequent ADEA age limit extensions, today his case might enjoy a different outcome, particularly since an express purpose of the Florida statutory provision was to induce older workers' retirement. See Sasso, supra at 934 n. 3. Moreover, the Sasso court held the Florida workers' compensation age based eligibility termination provision was not rationally related to the goal of halting "double dipping." Id. Most fundamentally, the Florida provision which terminated Sasso's workers' compensation benefits was amended in 1979 to delete the age sixty-five termination clause. Id. at 933; and see O'Neil, supra (which also comments on the extinguished portion of the provision). Therefore, it would now appear Massachusetts stands as the only state with an age based workers' compensation benefit termination provision.⁴¹

41 The lead opinion criticizes any reliance on preemption cases involving state employees and infers that inaction by the EEOC on state laws governing private sector workers means the EEOC perceives no real conflict between workers' compensation statutes and the ADEA. Given the innumerable strategic reasons and probable economic constraints on the EEOC, the danger in extrapolating from this silence should be obvious. Finally, Massachusetts has relatively recently distinguished itself as having the only old age based eligibility provision for benefit termination. G.L.c. 152, § 35E by St. 1991, c. 398, § 66. What the Massachusetts based EEOC has or has not done in this brief time frame is of little, if any account.

And for those employees who do not survive the evidentiary gauntlet set up by § 35E, what awaits them is not a streamlined coordination of benefits received from various sources, but a forced "choice" to retire while still industrially injured.

C. 152, §§ 35E and 75B(1)

The argument is also made on review that sections 75B(1) and 35E of chapter 152, conflict whenever an injured worker also meets the statutory definition of "qualified handicapped person" under chapter 151B. Section 75B(1) provides as follows:

(1) Any employee who has sustained a work-related injury and is capable of performing the essential functions of such job with reasonable accommodations, shall be deemed to be a qualified handicapped person under the provisions of chapter one hundred and fifty-one B.

Whether § 35E conflicts with other Massachusetts law deserves scrutiny. The reviewing board is charged with administering and interpreting the statute as written, Barofsky v. Lundermac Co., Inc., 4 Mass. Workers' Comp. Rep. 135, 144 (1990), and its interpretation of the statutory language based on its specialized expertise is extended due deference by the courts. See Seagram Distillers Co. v. Alcoholic Beverages Control Commission, 401 Mass. 713, 718 (1988); Manning v. Boston Redevelopment Authority, 400 Mass. 444, 453 (1987); Brunson v. Wall, 405 Mass. 446, 453 (1989); Amherst-Pelham Regional School Committee v. Department of Education, 376 Mass. 480, 491-492 (1978); Kelly's Case, 394 Mass. 684, 690 (1985) (dissenting opinion) (reviewing board interpretation should be accorded appropriate deference where statute "vests broad powers in the agency to fill in the details of the legislative scheme").

In St. Germaine v. Pendergast, 411 Mass. 615 (1992), in which the court was required to determine the relationship between provisions of the Workers' Compensation Act and another statute, it stated that each statute must be interpreted,

". . . [A]ccording to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." Oxford v. Oxford Water Co., 391 Mass. 581, 587 (1984), quoting Hanlon v. Rollins, 286 Mass. 444, 447 (1934). Where two statutes are allegedly inconsistent, we construe them "in a manner which gives reasonable effect to both statutes and creates a consistent body of law," Boston v. Board of Educ., 392 Mass. 788, 792 (1984), and we will find an implied repeal of one statute by another only when the prior statute is "so repugnant to and inconsistent with the later enactment . . . that both cannot stand," Boston Hous. Auth. v. Labor Relations Comm'n, 398 Mass. 715, 718 (1986), quoting Doherty v. Commissioner of Admin., 349 Mass. 687, 690 (1965).

Id. at 626. Accordingly, the issues are whether §§ 35E and 75B(1) of the Act can be harmonized and whether § 75B(1), in conjunction with § 35E and c. 151B, can be read to give consistent effect to the statutory requirements of each.

The definition of "qualified handicapped person" in c. 151B, to which c. 152, § 75B(1) makes reference, is as follows:

The term "qualified handicapped person" means a handicapped person who is capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of a particular job with reasonable accommodation to his handicap. c. 151B, § 1, para. 16.

Chapter 151B defines "handicap" and "handicapped person" as follows:

The term handicap means (a) a physical or mental impairment which substantially limits one or more major life activities of a person; (b) a record of having such impairment; or (c) being regarded as having such impairment.

c. 151B, § 1, para. 17. The term "handicapped person" means any person who has a handicap. c. 151B, § 1, para 19.

Chapter 151B, § 4 provides that it shall be an unlawful practice:

16. For any employer, personally or through an agent, to dismiss from employment or refuse to hire, rehire or advance in employment or otherwise, discriminate against, because of his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer's business. Section 151B, § 9 states, "The provisions of this chapter shall be construed liberally for the accomplishment of the purposes thereof and any law inconsistent with any provision hereof shall not apply. . . ." (emphasis added).

Clearly, c. 151B, § 4, para. 16 is consistent with the provisions of c. 152, § 75B. Under some circumstances, however, the two sections together may be inconsistent with § 35E both as enacted in 1985 and amended in 1991. If an employee receiving or entitled to weekly incapacity benefits under c. 152 is found by the trial court⁴² to be a qualified handicapped person, and the other conditions under § 75B(1) apply, then the provisions of § 35E "shall not apply." See c. 151B, § 9. An injured worker would have to pursue and establish a § 75B violation in the trial court to raise that statutory section as a conflict barring the application of § 35E.

42 Chapter 152, § 75B(1) specifies that such actions be brought "in the superior court department of the trial court for the county in which the alleged violation occurred."

The importance assigned by the Legislature to protecting the rights of handicapped persons is made clear by the provisions of c. 151B, § 9, which state that inconsistent statutes shall not apply. This Legislative purpose is underscored in Mass. General Laws C. 93, § 103, providing,

Any person within the commonwealth, regardless of handicap or age as defined in chapter one hundred and fifty-one B, shall, with reasonable accommodation, have the same rights as other persons to make and enforce contracts, inherit, purchase, lease, sell, hold and convey real and personal property, sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property, including, but not limited to, the rights secured under Article CXIV of the Amendments to the Constitution. C. 93, § 103(a).

Article CXIV of the Amendments to the Constitution, to which c. 93, § 103 refers, provides:

No otherwise qualified handicapped individual shall, solely by reason his handicap, be excluded from the participation in, denied the benefits of, or be subject to discrimination under any program or activity within the commonwealth.

Through Article CXIV, handicapped rights gained not only Legislative support but also direct public endorsement through the adoption of a Constitutional Amendment. The constitutional underpinnings of handicapped rights mandate that any conflict with these rights through the application of other Legislative enactments be resolved by precluding the effect of any statutory provision violating the rights of a qualified handicapped person. Although Article CXIV, in conjunction with the provision of c. 151B, § 9 stating that inconsistent statutes shall not apply, presumably does not constitute an express repeal of one statute by another, see St. Germaine v. Pendergast, 411 Mass. at 626, the two provisions mandate that any inconsistency between § 35E and legislation prohibiting handicapped discrimination be resolved in favor of the rights of the handicapped. Where an employee has been adjudicated a "qualified handicapped person" within the meaning of § 75B, a conflict exists between the two statutes that cannot be overcome by giving reasonable effect to both. Id. at 626.

On a case by case basis, before applying the terms of § 35E as amended, an administrative judge must rule on any evidence adduced regarding the employee's handicapped status. If the administrative judge rules that a trial court has found the employee to be a qualified handicapped person, § 35E as amended shall not apply and § 35E as originally enacted shall not be resurrected.

In summary then, I believe that: (1) Because § 35E is in violation of and preempted by the ADEA it is without force or effect and should not be applied. I would stay the prohibition against applying § 35E until expiration of the period for appeal set forth in c. 30A, § 14 or until an appeal is taken pursuant to c. 152, § 12(2) and jurisdiction rests with the appeals court of the commonwealth.

I also believe that: (2) Pursuant to c. 152, § 75B(1), c. 151B, § 4 and 9, c. 93, § 103(a) and Article CXIV of the Amendments to the Constitution, § 35E as amended by St. 1991, c. 398, § 66 should be applied consistent with the aforementioned protections accorded to qualified handicapped persons.

Maze-Rothstein, J. and Fischel, J.

We are not members of this reviewing board panel, but will undoubtedly address this significant issue in pending cases. Though we concur with the majority's urgings for further appellate review, in all other aspects we agree with the dissent.