402 Mass. 820 | Mass. | 1988
This case involves the propriety of the Industrial Accident Reviewing Board’s retroactive application of St. 1985, c. 572, § 25 (codified at G. L. c. 152, § 11C [1986 ed.]) (§ 11C). This provision replaced former G. L. c. 152, § 10, and limits the reviewing board’s ability to overturn a decision of a member of the Industrial Accident Board to instances where the decision “is beyond the scope of his authority, arbitrary or capricious, contrary to law, or unwarranted by the facts.” Section 11C also provides that “[t]he reviewing board may weigh evidence, but may not review determinations by the member who conducted the hearing regarding the credibility of witnesses who have given testimony.”
The employee sought recovery for an injury occurring on August 26, 1982. Proceedings were held before two separate single members of the Industrial Accident Board in accordance with former c. 152, § 7 (conference), and former c. 152, § 8 (hearing).
The reviewing board did not err in applying § 11C. Chapter 152, § 2A, provides as follows: “Every act, in amendment of this chapter, in effect on the effective date of this section or thereafter becoming effective which increases the amount or amounts of compensation payable to an injured employee or his dependents shall, for the purposes of this chapter, be deemed to be substantive in character and shall apply only to personal injuries occurring on and after the effective date of such act,
The employer argues that, without regard to whether § 11C increases compensation payable to claimants, § 11C takes away its “substantive right. . . of having the credibility determination of the single member reviewed by the three person reviewing board,” and therefore, it should be applied prospectively only. The employer’s approach would be proper with some “amendments” within the meaning of § 2A. See Price v. Railway Express Agency, Inc., 322 Mass. 476, 482-485 (1948). However, § 11C is not such an amendment. Despite the employer’s characterization, § 11C concerns the purely procedural questions of what standard of review will be applied by the reviewing board, and what latitude the reviewing board possesses in reviewing the record generated in the initial proceedings. Section 11C has no impact on the merits questions involved in determining the amount of compensation or the parties’ substantive rights to receive or not to pay compensation. See Goodwin Bros. Leasing v. Nousis, 373 Mass. 169, 172-173 (1977).
Section 11C is, under § 2A, procedural and to be applied retroactively. We add that, even if the special definition contained in § 2A did not exist, § 11C, as a procedural statute, might well be applied retroactively in accordance with general rules of construction. Id. Such retroactive application would be proper where, as here, the reviewing board held its hearing and issued its decision after the effective date of § 11C, even though the injury and the proceedings before the single member occurred prior to that date. See id.; Goes v. Feldman, 8 Mass. App. Ct. 84, 88 (1979), citing City Council of Waltham v. Vinciullo, 364 Mass. 624, 628 (1974).
The decision of the reviewing board is affirmed. Costs to the employee are to be determined by a single justice of this court under G. L. c. 152, § 12A (1986 ed.).
So ordered.
Under former c. 152, § 10, the reviewing board could entirely supersede the single member’s decision. Haley’s Case, 356 Mass. 678, 679 (1970). Former c. 152, § 10, provided, in pertinent part, that “the reviewing board
Under G. L. c. 23E, §4(1986 ed.), single members now are denominated administrative judges.