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. 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.

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. Issues

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 Constitution 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.

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.

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. 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."

Section 35E limits the ability of employees eligible for old age social security and employer-funded pensions from also collecting workers' compensation. 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. By making it more difficult to double-dip, it encourages the partially incapacitated employee to return to productive work.

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, proof that but for the injury, he or she would be working instead of retired.

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. 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.

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.

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

The Tenth Amendment to the United States Constitution reserves to the states powers not specifically granted to the federal government. 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.

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. Id., 501 U.S. at 457-458, 111 S.Ct. at 2399.

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; 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).

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. 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.

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. 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.

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. 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).

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). 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).

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.