Opinion
BOARD No. 67777884
Filed: October 25, 1995
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, Smith and Kirby)
APPEARANCES
John K. McGuire, Jr., Esq., for the employee at hearing and on brief.
S. Joseph McLellan, Esq., for the insurer at hearing.
This case raises issues of first impression. At the outset, we address whether an administrative judge can raise the benefit terminating presumption of G.L.c. 152, § 35E sua sponte. And secondarily, we examine the outcome of a conflict between the 1946 enactment of § 2A and the substantive character of the 1986 version of § 35E to determine whether the latter provision should be treated as procedural with retroactive application to the employee's 1984 pre-enactment injury date.
A decision awarded the employee a closed period of § 35 partial incapacity benefits. The closed period ended by application of G.L.c. 152, § 35E. Thus, the employee's benefits were terminated as of the date that he began to receive old age benefits pursuant to federal social security law. On appeal, the employee argues that 1) retroactive application of § 35E to include his pre-enactment date of injury, and 2) sua sponte application of § 35E by the administrative judge after the hearing and without the parties' knowledge are errors of law. We find that the administrative judge erred as a matter of law when he applied § 35E sua sponte. However, although § 35E affects the employee's substantive rights and under the common law would operate prospectively, the provisions of § 2A require that § 35E apply retroactively. Thus, we affirm in part and reverse in part.
G.L.c. 152, § 35E (St. 1985, c. 572, § 45) was enacted effective November 1, 1986, and reads:
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.
G.L.c. 152, § 35E has since been amended by St. 1991, c. 398, § 66, which amendment has no bearing on the case at bar.
On May 30, 1984, while working for Table Talk Pies, the employee attempted to remove a steel board from an oven, injuring his back. (Dec. 6.) The employee filed an incapacity claim for § 34 temporary total, § 35 partial benefits and §§ 13 and 30 medical benefits. After a § 10A conference on February 18, 1987, the employee's claim for weekly benefits was denied, but medical benefits were awarded. The employee appealed, and the claim was heard de novo on May 17, 1990. (Dec. 2.)
The employee had been injured in the course of his employment with Table Talk Pies twice before the May 30, 1984 injury. Although the employee claimed, in separate consolidated actions, that his present disability was causally related to those incidents, he does not appeal from the administrative judge's dismissal of those claims. (Dec. 6, 10, 12.)
The administrative judge who conferenced this claim was no longer with the Industrial Accident Board by the time it came up for hearing.
At hearing, the employee testified that he started receiving "regular" (old age) social security benefits as of January of 1989, the calender year in which he turned sixty-three. (Tr. 49-50, Dec. 9.) The judge found a partial incapacity causally related to the May 30, 1984 industrial accident. (Dec. 10.) Section 35 benefits were awarded at $160.00 per week based on an average weekly wage of $360.00 and an assigned $200.00 weekly earning capacity. (Dec. 12.) The administrative judge ordered said payments to cease on December 31, 1988, relying on § 35E and reasoning that the employee had failed to prove that, "but for his injuries, he would have stayed active in the labor market at or beyond the time he began to receive old age social security benefits." (Dec. 11, 12.) The insurer had not raised the issue of § 35E in defense of the claim. (Dec. 3.) Save a brief cross examination on the issue of retirement benefits, the record reveals no reference to § 35E by the parties or the administrative judge during the course of the hearing. (Tr. 49-50.) The judge apparently raised and addressed § 35E post-hearing without notifying the parties.
Section 35E created a rebuttable presumption that an employee's entitlement to § 35 benefits would terminate upon receipt of certain varieties of old age benefits unless he showed that but for the injury he would have remained active in the labor market. As a matter of law, it was error to apply § 35E sua sponte, post-hearing without the parties' knowledge and without the insurer having raised the issue.
See note 1, supra.
452 Code Mass. Regs. 1.11(3) states:
Before the taking of testimony in a hearing before an administrative judge, the insurer shall state clearly the grounds on which the insurer either has declined to pay compensation, or the ground on which it seeks modification or discontinuance. . . . On all other issues the employee's rights under M.G.L.c. 152 shall be deemed to have been established. (Emphasis added).
Regulations are indistinguishable from statutes insofar as regards their force and effect as law. The import of regulation 1.11(3) is unmistakable: an insurer must give the employee fair notice of the grounds for its defense at hearing. See Haley's Case, 356 Mass. 678, 681 (1970) (parties are entitled to opportunity to present evidence and "to know what evidence is presented against them and to an opportunity to rebut such evidence, and to argue . . . on the issues of fact and law involved in the hearing"). Just as an administrative judge can not award an employee § 34A permanent and total incapacity benefits if not sought, an insurer cannot expect judicial assistance in assertion of defenses that could extinguish entitlement to benefits. Compare Fragale v. MCF Industries, 9 Mass. Workers' Comp. Rep. ___, ___ (March 27, 1995) (decision on extent of capacity must reflect the actual § 34 temporary total or § 35 partial incapacity supported by the evidence).
See, e.g., Miller v. Buxton, 8 Mass. Workers' Comp. Rep. 175, 175-76 (1994) ("The judge abused his discretion in addressing the § 34A permanent and total incapacity issue which the employee had not raised at the commencement of the hearing.")
Nonetheless, there are sections of the Act that operate as a matter of law, even if no party raises them. See Arruda v. George E. Keith Co., 5 Mass. Workers' Comp. Rep. 14 (1991) (listing §§ 7A, 35B and 51A). We are now called upon to answer whether § 35E should self-operate as well.
Among the self-operative sections cited in Arruda, supra, § 7A bears the closest resemblance to § 35E. But it also has significant differences. Section 7A is distinguished by and shrouded in protective policies for well established reasons that relate to a judge's role where competency to testify is at stake. Its comparison to § 35E for purposes of self-operation deserves careful consideration. Section 7A establishes prima facie evidence of the existence of an industrial accident in the face of evidence of the employee's death or incapacity to testify at hearing. The insurer must then come forward and introduce evidence sufficient to create an issue of fact. Martine v. N.E. Telephone and Telegraph, 1 Mass. Workers' Comp. Rep. 351, 354 (1988). Section 7A self-operates because its core is competence, capacity and impossibility to testify. It is the particular province of the administrative judge to oversee this aspect of the hearing, and calls for its sua sponte invocation. Since § 7A goes directly to the opportunity to meet a vital element of the burden of proof, we do not deprive an employee of benefits simply because § 7A was overlooked by the judge. See Bechtold v. Compo Industries, 2 Mass. Workers' Comp. Rep. 269, 272 (1988). This sui generis protective rationale for § 7A's self-operation does not apply to § 35E whose policy is to affirmatively eliminate benefits where all parties are competent to prosecute on and defend against a claim. See Lussier v. ATF Davidson, 8 Mass. Workers' Comp. Rep. ___ (November 8, 1994) (for expansion on judge's § 7A duty to conduct voir dire where a live employee asserts incapacity to testify.)
G.L.c. 152, § 7A reads, in pertinent part:
In any claim for compensation where the employee has been killed or found dead at his place of employment or, in the absence of death, is physically or mentally unable to testify, and such testimonial incapacity is causally related to the injury, it shall be prima facie evidence that the employee was performing his regular duties on the day of injury or death and that the claim comes within the provisions of this chapter. . . .
It is instructive to look outside of practice at the Department for further clarification of this point. The courts of the Commonwealth have long relied on trial judges to raise the issue of competency sua sponte. On the criminal side, see, e.g.,Commonwealth v. Vailes, 360 Mass. 522, 524 (1971) ("[i]n those situations where there exists doubt as to whether the defendant satisfies the test [of competency to stand trial], the judge must, on his own initiative, conduct a full hearing on the issue.") (Emphasis added). The matter of competency is raised by the judge in civil matters, as well. See, e.g., Adoption of Kirk, 35 Mass. App. Ct. 533, 536-538 (1993) (discussion of judge's responsibility to order sua sponte hearing on competency of parents when their conduct raises substantial question). See also Adoption of Thomas, 408 Mass. 446, 451 (1990) (judge in adoption proceedings has power to order, sua sponte, presentation of evidence on the validity of parent's consent). As the issue of the employee's capacity to testify under § 7A is directly parallel to the issue of competency, it is entirely appropriate that administrative judges shoulder the same responsibility to inquire, examine and address that issue as do judges in the courts of general jurisdiction.
There are other areas upon which the judge can operate sua sponte. They are uniformly characterized by an adjudicatory role in protecting — as opposed to depriving — parties' rights or benefits. Examples include, in the Probate Court, where the question of the removal of an executor/administrator is raised by indications of unsuitability, seeAltshuler v. Agnes, 31 Mass. App. Ct. 937 (1992); when questions regarding the voluntariness of a confession are raised in a criminal proceeding, see Commonwealth v. Lunde, 390 Mass. 42 (1986); the instruction of the jury in criminal proceedings with regard to lesser included offenses, see, e.g., Commonwealth v. Freeman, 407 Mass. 279 (1990), cf.Commonwealth v. Thayer, 35 Mass. App. Ct. 599 (1993); obligation of judge to instruct jury on issues relating to mental capacity required for criminal culpability, see Commonwealth v. Lawrence, 404 Mass. 378 (1989),Commonwealth v. Fano, 400 Mass. 296 (1987). The sole area of exception to this protective approach is administrative, to allow courts to manage the fair distribution of justice, e.g. the judge's inherent power to dismiss a case for lack of prosecution sua sponte. See Anderson v. Sport Lounge, 27 Mass. App. Ct. 1208 (1989).
Conversely, the trial judge's power to raise issues sua sponte specifically does not extend to the area of defenses and claims not raised by the parties. See Messina v. Scheft, 20 Mass. App. Ct. 945, 946 (1985) ("Serious problems may be created whenever a judge bases a decision on an issue that is not before the court. A party may be effectively foreclosed from presenting evidence on the very issue that is dispositive of the case."); F.M.R. Corp. v. Boston Edison, 415 Mass. 393, 397 (1993) (court's sua sponte grant of summary judgment of cross-claim when no motion was before court and no notice was given to parties was reversible error). Accord Draghetti v. Chmielewski, 416 Mass. 808, 815 (1994) ("[defendant] asserts that the judge should have raised the public figure issue sua sponte. We do not agree. It is not a judge's function to be the trial strategist for any litigant.") (Emphasis added.); Commonwealth v. Purinton, 32 Mass. App Ct. 640, 647 (1992) (statute of limitations defense, not raised was waived, and the judge was not required, sua sponte, to instruct the jury on that issue).
It is apparent that generally a judge's scope of authority to act sua sponte is limited. In no event does it encompass the post-hearing address of a defense not raised, such as § 35E in the instant claim, with a consequent termination of the employee's benefits. The employee was thereby effectively foreclosed from fully presenting evidence on the very issue that was dispositive of his case. See Messina, supra. This is a result that cannot stand.
Next, we examine the conflict between the 1946 version of § 2A and the substantive character of the 1986 version of § 35E. Though § 35E can extinguish the employee's otherwise meritorious substantive right to benefits, we find that the 1946 enactment of § 2A operates to make the 1986 version of § 35E apply retroactively to the employee's May 30, 1984 injury date.
The recent reasoning of the Supreme Judicial Court in Connolly's Case, 418 Mass. 848 (1994) has no bearing here. The effect of the 1991 enactments of § 2A and § 8(2)(j) were governed by the "outside" § 107 of 1991 c. 398. There are no outside sections that direct the interaction of the statutory provisions at issue here.
The version of § 2A germane to the case at bar states:
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 or 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 section 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 date of their occurrence, unless otherwise expressly provided.
G.L.c. 152, § 2A has been amended since the hearing of this matter by St. 1991, c. 298, § 16, which amendment pertinently adds the words "or decreases" after "increases" in the first sentence of the section. The section now effectively mirrors the common law rules of construction. The amendment, however, does not apply to the case at bar.
Thus, to follow the literal language of § 2A would result in the characterization of § 35E as procedural and retroactive, as it decreases, not "increase[s] the amount or amounts of compensation payable to an injured employee. . . ."
The common law rules of construction regarding the prospective or retroactive application of Workers' Compensation statutes was recently reiterated in Shelby Mutual Insurance Co. v. Commonwealth, 420 Mass. 251, 257 (1995).
"Unless the legislative intent is unequivocally clear to the contrary, a statute operates prospectively, not retroactively." Sentry Fed. Sav. Bank v. Co-operative Cent. Bank, 406 Mass. 412, 414 (1990). "It is only statutes regulating practice, procedure and evidence, in short, those relating to remedies and not affecting substantive rights, that commonly are treated as operating retroactively, and as applying to pending actions or causes of action." Hein-Warner v. Jackson Indus., 364 Mass. 523, 525 (1974), and cases cited. When, as is clearly the situation here, the statute extinguishes substantive rights, it will not be applied retroactively to pending claims "unless the Legislature has stated the contrary explicitly." Austin v. Boston Univ. Hosp., 372 Mass. 654, 657 (1977).
Shelby, 257.
Many are the cases that have applied the 1946 version of § 2A, but few are those which have had to determine its effect where there was a conflict with common law rules. At the Review Board there has been but one. Leak v. Bassett Printing Co., 4 Mass. Workers' Comp. Rep. 206 (1990). Beyond the Department, in the appellate courts, we find only three. Price v. Railway Express Agency, Inc., 322 Mass. 476 (1948); American Mutual Liability Ins. Co. v. Commonwealth, 379 Mass. 398 (1979) and Shelby, supra.
In Price, the employee sought retroactive application of then newly enacted G.L.c. 152, § 1(4), because under § 2A, it did not "increase" the amounts payable to injured employees and was arguably procedural. The court refused to apply § 1(4) retroactively. It reasoned "that to give § 2A the interpretation that all amendments to the act which were in effect and did not provide for an increase in the amount of the award were matters of procedure or remedy would lead to serious constitutional questions."Id. at 483-484. The Price court held that they "did not think that the legislature intended that all amendments including those which are essentially and actually substantive in nature should be considered as remedial, excepting only one dealing with an increase in compensation."Id. at 485.
Leak, supra followed the approach taken in Price, supra to rule that despite the provisions of § 2A, the 1986 amendment to the § 1(7A) definition of a personal injury was essentially "substantive in nature" and thus operative only prospectively. Id. at 210-211.
However, both American Mutual and Shelby applied § 2A procedurally overcoming the substantive character and common law treatment of the respective contested provisions. In American Mutual the court stated plainly "§ 37 would be substantive in nature and therefore prospective only if G.L.c. 152, § 2A were not applicable". Id. at 404. In Shelby, a decision of near cryptic brevity, the court ruled claims filed prior to the effective date of an outside section (St. 1989, c. 565) — which itself called for substantive treatment for dates of injury reaching back to 1985 — would get retroactive treatment of the 1985 amendment to G.L.c. 152, § 65 via operation of the 1946 version of § 2A in spite of the fact that the 1985 amendment "extinguishes substantive rights". Id. at 257.
The 1985 amendment to § 65 shifted the financing of the Trust Fund's second injury fund from insurers to employers. The Shelby court also mentions a 1991 amendment to § 65, which did not govern the outcome of that case.
We follow the more recent interpretation of the courts, in ruling that the plain language of the 1946 version of § 2A dictates that because the 1986 version of § 35E decreases and does not increase benefits to injured workers it is deemed procedural with retroactive effect.
The dissent argues for activism citing language from § 11A. But the very language quoted leaves the conduct of the hearing up to the judge "as he deems necessary". G.L.c. 152, § 11. As in the courts, and consistent with the law on sua sponte action, there is no absolute bar or proscription to either adjudicatory posture, a judge may take a more active role or he may allow the adversarial process to function without intercession. Either judicial approach, if done correctly, is permissible. Here the judge apparently felt he wanted to take a more activist approach. However, as discussed above he did it incorrectly, which made his action contrary to law. Under our § 11C standard of review, we are required to reverse under such circumstances. The insurer is certainly at liberty to file anew alleging § 35E as grounds for discontinuance.
G.L.c. 152, § 11C reads in pertinent part:
The reviewing board shall reverse the decision of an administrative judge only if it determines that such administrative judge's decision is beyond the scope of his authority, arbitrary or capricious, or contrary to law. The reviewing board may, when appropriate, recommit a case before it to an administrative judge for further findings of fact. Where the reviewing board affirms the decision of an administrative judge, it may do so in summary fashion and without discussion of the issues raised on appeal.
Amended by St. 1991 c. 398, § 31.
Wherefore, we affirm the finding of partial incapacity and reinstate the § 35 benefits award on a continuing basis. We reverse the decision to apply § 35E sua sponte. The insurer may seek to modify or discontinue benefits at any point subsequent to the March 11, 1991 filing date of the administrative judge's decision. The insurer shall pay employee's counsel a fee in the amount of $1500.00.
The dissenter is concerned that this Review Board order is not "grounded in any evidence." Since we have no fact finding power our requirements on appeal differ in kind from those at the hearing level. See G.L.c. 152, § 11C as amended by St. 198, c. 398, § 31.
So ordered.
____________________________________ Susan Maze-Rothstein Administrative Law Judge
____________________________________ Edward P. Kirby Administrative Law Judge
Filed: October 25, 1995
I would remand this case for the purpose of allowing Bamihas to present additional evidence "that but for the injury, . . . [he] would have remained active in the labor market[,]" pursuant to G.L.c. 152, § 35E (St. 1985, c. 572, § 45). The judge did not err in addressing this issue as it had been raised by the evidence that Bamihas was receiving old age benefits. However fairness requires that where § 35E was not listed on the insurer's issues statement submitted at the commencement of the hearing, the judge must advise the employee that he was considering the § 35E issue. The employee would then be reminded of his obligation to present evidence on the § 35E elements of proof and unfair surprise or ambush would be avoided. Finding remand the appropriate result to accomplish justice, I dissent from the majority's decision to vacate and reverse the § 35E decision.
The issue could not have been presented at the February 27, 1987 conference, as Bamihas was not receiving social security retirement benefits then. See Collins v. M.B.T.A., 9 Mass. Workers' Comp. Rep. ___, slip op. at 3-4 (March 27, 1995).
The majority treats this case as if § 35E was not an issue because the insurer did not list it in its issues statement. See 452 Code Mass. Regs. 1.11(3). However, the fact that a party does not plead a matter of law does not erase provisions of the Workers' Compensation Act. The judge must still render a decision based on the evidence and not contrary to law. G.L.c. 152, § 11C; see Hayes v. Commonwealth of Massachusetts, 7 Mass. Workers' Comp. Rep. 232, 235, 237 (1993) (§§ 7A and 51A are self-operative and must be addressed by the administrative judge as a matter of law even if the parties do not raise them).
In Dennen v. Addison Gilbert Hosp., 5 Mass. Workers' Comp. Rep. 289 (1991), this board decided that an insurer's failure to specify the bases for its refusal to pay benefits does not relieve the employee of the burden of proving all elements of his claim, notwithstanding the language in G.L.c. 152, § 7 that only the bases of non-compensability specified may be used by the insurer in its subsequent defense of the claim. Id. at 296-298. See Sponatski's Case, 220 Mass. 526, 527-28 (1915) (burden of proof remains with employee to produce evidence on all elements of his claim). The 1991 Legislature codified the Dennen decision when it amended § 7 by adding the sentence, "An insurer's inability to defend on any issue shall not relieve an employee of the burden of proving each element of any case." G.L.c. 152, § 7(1) (as amended by St. 1991, c. 398, § 20).
G.L.c. 152, § 7 (St. 1986, c. 662, § 9) stated, in pertinent part:
. . . Any grounds and basis for non compensability specified by the insurer shall be the sole basis of the insurer's defense on the issue of compensability in any subsequent proceeding, unless based upon newly discovered evidence.
Section 35E creates an element of proof just as do §§ 1, 26, 34 or 35. The Act does not differentiate between any of these sections with regard to the employee's fundamental burden of going forward to prove his claim. Section 35E imposes on an employee receiving old age benefits pursuant to federal social security law or receiving pension benefits paid in part or entirely by an employer, the burden of establishing that but for the injury, the injured worker would have remained active in the labor market. Once evidence of old age benefit receipt enters the record, the employee must come forward with evidence to sustain his burden of proof. See Tobin v. Town of Stoughton, 9 Mass. Workers' Comp. Rep. ___, slip. op. at 16 (March 28, 1995) (whenever the worker's status is called into question, the burden of proving entitlement to continuing benefits is placed on the employee).
Even if one were to characterize § 35E as an affirmative defense rather than an element of proof, the result would be the same. According to Arthur Larson, "[I]f the substance of facts necessary to the employer's defense has been put before the tribunal by the claimant, the employer's failure to allege these facts in his pleadings is not fatal in proper cases." Workmen's Compensation, Vol. 2B, § 77A.46.
The majority's use of precedent from the constitutional courts is inapposite to practice at the Industrial Accident Board, which is intended to be as simple and summary as reasonable. G.L.c. 152, § 11B; Collins v. M.B.T.A., 9 Mass. Workers' Comp. Rep., slip op. at 5 (March 27, 1995). According to Arthur Larson, "[t]he whole idea is to get away from the cumbersome procedures and technicalities of pleading, and to reach a right decision by the shortest and quickest possible route." Larson, Workmen's Compensation, Vol. 2B, § 77A.10 As stated in Harris v. Raytheon Co., 4 Mass. Workers' Comp. Rep. 308, 310 (1990), "[T]he efficient use of adjudicatory resources requires the joinder of as many issues as might reasonably be combined in one hearing." Therefore, as we instructed in theCollins case, supra, it is more simple and summary to recognize an issue raised by the evidence and to adjudicate it in the pending proceeding.
Section 11 authorizes a role for the administrative judges that is more active than that of their counterparts in the constitutional courts of the commonwealth. G.L.c. 152, § 11 (St. 1986, c. 662, § 13) states, in pertinent part:
At the hearing the member [administrative judge] shall make such inquiries and investigations as he deems necessary, and may require and receive any documentary or oral matter not previously obtained as shall enable him to issue a decision with respect to the issues before him. (emphasis supplied).
When the employee testified that he had started receiving old age benefits pursuant to the federal social security law more than a year before the hearing (Dec. 9), the judge was correct to treat § 35E as one of "the issues before him," within the dictates of § 11. The administrative judge acted within the scope of his authority granted by § 11B, consistent with the law of G.L.c. 152, § 35E in addressing the issue.
However, when a judge addresses an issue not listed in the issues statements but raised by the evidence, he must make the "inquiries" under § 11 necessary to avoid an arbitrary or capricious decision. See G.L.c. 152, § 11C. Those inquiries in the instant case consist of two questions that the judge should pose to the parties upon remand: (1) Is the insurer relying on § 35E as a defense to payment? (2) If so, does claimant's counsel wish to present additional evidence on that issue? If requested on grounds of surprise, the judge should grant a continuance, as allowed by § 11, to ensure that there is no possibility of "calculated ambush" by the insurer's failure to specify the issue as a basis for its denying the claim. See Dennen at 299.
The appropriate result in this case is a remand for the judge to make these inquiries and then to entertain the employee's response. SeeCollins, supra (where case remanded, employee allowed to formally amend his claims to conform to the evidence presented).
Regarding the application of § 35E (1985) to an injury which preceded its enactment, I concur with the majority's result. However, I do not agree with its criticism of Supreme Judicial Court opinion or the circuitous path it takes to reach the result. I would simply follow Shelby Mut. Ins. Co. v. Commonwealth, 420 Mass. 251 (1995) and apply the clear language of § 2A (1946) to find that § 35E does not operate to "increase the amount or amounts of compensation payable to an injured employee" and therefore is "deemed to be procedural or remedial only, in character", and applicable "to personal injuries irrespective of the date of their occurrence . . ." See Shelby at 257; G.L.c. 152, § 2A (St. 1946, c. 386, § 3).
In conclusion, I dissent from the majority opinion because it reverses the administrative judge's decision and awards over two years of benefits to which, on the existing record, the employee has no legal right. Justice would be better served by a remand, see Collins, supra, than by requiring the filing of a new discontinuance request. Justice is not served by limiting the insurer's ability to request discontinuance from the filing date of the administrative judge's decision as such a date is not grounded in any evidence. See Aguiar v. Gordon Aluminum Vinyl, 9 Mass. Workers' Comp. Rep. ___, slip op. at 3 et. seq. (March 27, 1995) (discussing res judicata principles in a workers' compensation context); Sullivan v. Commercial Trailor Repair, 7 Mass. Workers' Comp. Rep. 8, 9 (1993) ("[i]t is well settled that discontinuance of benefits must be grounded in the evidence contained in the record"). The more equitable result is remand, not reversal.
The employee began collecting social security retirement benefits in January, 1989. (Dec. 11.) The judge's decision was filed on March 11, 1991.
____________________________________ Suzanne E.K. Smith Administrative Law Judge
Filed: October 25, 1995