In this wоrkers’ compensation case, the employee, John Tobin, appeals from a decision of the reviewing board of the Department of Industrial Accidents affirming a decision of an administrative judge that the employee’s benefits were to be terminated pursuant to G. L. c. 152, § 35E. This statute provides that an employee over age sixty-five, who has been out of the labor market for at least two years and is eligible for social security benefits, or benefits from a public or private pension paid for in part or entirely by an employer, will not be entitled to total or partial incаpacity benefits under G. L. c. 152, §§ 34 and 35, unless the employee can establish that, but for the injury, he or she would have remained active in the labor market. The statute goes on to create a rebuttable presumption of noneligibility for benefits for affected employees.
The employee’s аppeal was filed in the single justice session of the Appeals Court pursuant to that court’s rule 2:04, and was reserved and reported by the single justice to a panel of that court. We transferred the appeal to this court on our own motion. We reject the employee’s arguments that G. L. c. 152, § 35E, violates the equal protection and due process provisions of the Fourteenth Amendment to the United States Constitution and the Declaration of Rights of the Massachusetts Constitution, that the statute is substantive in nature and therefore cannot be applied retroactively to his case, and that the statute is preempted by 29 U.S.C. §§ 621 et seq. (1994), the Federal Age Discrimination in Employment Act (ADEA). We also reject the employee’s request that the case be remanded for further evidence and findings on the issue of the application of the statute to him. Consequently, we affirm the decision of the rеviewing board.
The background of the case is as follows. The employee began to work for the town of Stoughton in 1978. He worked mostly as a custodian at the Stoughton police department, where his duties included cleaning and maintaining the facility. On September 27, 1988, the employee injured his shoulder while working on an overhead light fixture. As a result of the injury, surgery was performed on the employee’s injured shoulder, and he received workers’ compensation benefits from October 15, 1988, through October 29, 1991. On the latter date, after the employee had been out of the labor force
1. Equal protection. As an act of the Legislature, G. L. c. 152, § 35E, is presumed constitutional. Leibovich v. Antonellis,
There are at least two rationales for the Legislature’s enactment of G. L. c. 152, § 35E. First, the statute is a benefit coordination provision. The workers’ compensation law was designed to provide wage-loss protection to employees who are injured on the job and incur a loss of earning capacity from the injury. Scheffler’s Case,
The Legislature could also have enacted the statute to reduce the cost of workers’ compensation premiums for employers who are paying into multiple benefit systems such as workers’ compensation, social security, and pensions. Because § 35E makes it more difficult for employees eligible for social security or pensions also to collect workers’ compensation benefits, the burden on employers is alleviated. This also provides a rational basis for the statute. For these reasons, there is universal agreement that statutes like G. L. c. 152, § 35E, promote legitimate governmental goals and do
2. Due process. The employee argues that § 35E contravenes the procedural due process protections contained in the Fourteenth Amendment and the Massachusetts Declaration of Rights because he reads the statute as preventing him and his family from testifying to rebut the presumption contained in the statute. The procedural duе process protections involved in this area are subject to the same analysis under both the Federal and State Constitutions. Liability Investigative Fund Effort, Inc. v. Massachusetts Medical Professional Ins. Ass’n,
The employеe misreads § 35E in concluding that he and members of his family are barred from testifying to defeat the presumption. The statute only provides that “[t]he presumption of non-entitlement to benefits . . . 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.” Testimony by the employee and his family members concerning his life, environment, and present and future work goals is certainly permissible under § 35E and should be considered by the administrative judge. We note that the rеviewing board has held that “§ 35E does not say
The statute’s establishment of a rebuttable presumption also does not violate due process. Presumptions are simply rules of evidence that fall within the general power of government to adopt. DiLoreto v. Fireman’s Fund Ins. Co.,
3. Retroactivity. The employeе argues that St. 1991, c. 398, § 66, which amended § 35E to add the presumption, is substantive in nature, and because he was injured before the effective date of the amendment, the earlier version of the statute, which did not contain the presumption of non-entitlement, applies to his case. There is no merit to this argument.
Section 107 of St. 1991, c. 398, provides a specific description of procedural and substantive portions of the amendments made to G. L. c. 152. Section 107 states that “[ejxcept as specifically provided by [§§ 103-106], inclusive, of this act, all sections of this act shall, for purposes of [G. L. c. 152, § 2A], be deеmed to be procedural in character.”
4. The ADEA. The employee argues that the ADEA preempts G. L. c. 152, § 35E.
5. Requested remand. Lastly, the employee argues that the case should be remanded to the board with directions to remand it to the administrative judge for further proceedings in light of the reviewing board’s Harmon decision, supra. The Harmon case was decided after the administrative judge’s decision, but the Harmon decision was available to the employee when his appeal was before the reviewing board. The employee did not argue to the reviewing board that the case should be remanded for further findings or the presentation of additional evidence, and consequently, the reviewing board did not consider the issue. We also decline to consider it. See Maguire’s Case,
The decision of the reviewing board is affirmed.
So ordered.
Notes
General Laws c. 152, § 35E, as amended by St. 1991, c. 398, § 66, reads as follows:
“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 federаl 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 labоr 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 markеt. 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.”
The employee is not covered by G. L. c. 152, § 75B, which concerns the rights of qualified handicapped persons so his reliance on that statute is not helpful to him. In any event, handicapped individuals are not members of a “suspect” class. See Welsh v. Tulsa,
General Laws c. 152, § 2A, reads as follows:
“Every act, in amendment of this chapter, in effect on the effective date of this section or thereafter becoming effective whichincreases or decreases the amount or amounts of compensation payable to an injured employee or his dependents including amounts deducted for legal fees shall, for the purposes of this сhapter, be deemed to be substantive in character and shall apply only to personal injuries occurring on and after the effective date of such act, unless otherwise expressly provided. Every act, in amendment of this chapter, in effect on the effective date of this seсtion or thereafter becoming effective which is not deemed to be substantive in character within the meaning of this section shall be deemed to be procedural or remedial only, in character, and shall have application to personal injuries irrespective of the datе of their occurrence, unless otherwise expressly provided.”
The Attorney General, whose motion to intervene was allowed in this court, argues that the employee cannot assert the preemption claim because he did not file claims with the Equal Employment Opportunity Commission (EEOC) and thе Massachusetts Commission Against Discrimination. The Attorney General’s brief cites numerous Federal decisions holding that the provisions of ADEA requiring the filing of administrative claims before a court action is instituted are a bar to a court’s consideration of a claim under ADEA. In a situation like this, where an insurer is seeking to terminate an employee’s workers’ compensation benefits by reason of the effect of a State statute, requiring exhaustion of the employee’s administrative remedy will serve no practical purpose.
We note additional support for this conclusion in the applicаble EEOC regulations, to which we look for guidance. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986). The Department of Labor’s interpretation of the ADEA implicitly supports the argument that its prohibitions are limited to employment practices within the control of employers and do not encompass governmental actions such as workers’ compensation laws. See O’Neil v. Department of Transp.,