Pospisil's Case, 525 N.E.2d 646 (Mass. 1988). · Go Syfert
Pospisil's Case, 525 N.E.2d 646 (Mass. 1988). Cases Citing This Book View Copy Cite
11 citation events (9 in the last 25 years) across 4 distinct courts.
Strongest positive: Williams Companies v. Dunkelgod (okla, 2012-11-20)
Top citers, strongest first. 6 distinct citers. How cited ↗
discussed Cited as authority (rule) Williams Companies v. Dunkelgod
Okla. · 2012 · confidence medium
See Truckstops of America, Inc. v. Engram, 220 Ga.App. 289 , 469 S.E.2d 425, 427 (1996) ("'The statute is procedural, there is no vested right in preserving appellate review of the ALJ's decision under the [statute] which existed at the time the ALJ [heard] the case."); Pospisil's Case, 402 Mass. 820 , 525 N.E.2d 646, 647 (1988) (holding that statute relating to standard of review had no impact on the merits questions involved in determining the amount of compensation or the parties' substantive rights to receive or not to pay compensation and so was procedural and had to be applied retroactiv…
discussed Cited as authority (rule) Harvey v. Auto Plus of Woodward
Okla. Civ. App. · 2012 · confidence medium
See, e.g., Hughes v. Bd. of Prof'l Responsibility of Supreme Court of Tenn., 259 S.W.3d 631, 639-640 (Tenn.2008) (quoting Bd. of Prof'l Responsibility v. Love, 256 SW.3d 644, 652 (Tenn.2008)) (holding that the amendment to the standard of review ''is procedural and remedial in nature and, therefore, should be applied retrospectively 'not only to causes of action arising before [its effective date], but also to all actions pending when [it] took effect, unless a contrary intention is indicated or immediate application would produce an unjust result.'"); Due South, Inc. v. Department of Alcoholi…
discussed Cited as authority (rule) Tennell v. HORSEHEAD CORP.
Okla. Civ. App. · 2010 · confidence medium
See, e.g., Truckstops of America, Inc. v. Engram, 220 Ga.App. 289 , 469 S.E.2d 425, 427-428 (1996) 1 ; Farrington v. Total Petroleum, Inc., 189 Mich.App. 298 , 472 N.W.2d 60, 63-64 (1991) 2 ; Kinninger v. Industrial Claim Appeals Office of State of Colo., 759 P.2d 766, 767-768 (Colo.App.1988) 3 ; Armstrong v. Asten-Hill Co., 90 Or.App. 200 , 752 P.2d 312, 314-315 (1988) 4 ; Pospisil's Case, 402 Mass. 820 , 525 N.E.2d 646, 647-648 (1988) 5 ; Hengemuhle v. Long Proirie Jaycees, 358 N.W.2d 54, 58 (Minn.1984) 6 .
cited Cited as authority (rule) Oakes's Case
Mass. App. Ct. · 2006 · confidence medium
Co. v. Commonwealth, 379 Mass. 398, 404-406 (1979); Pospisil’s Case, 402 Mass. 820, 822 (1988); and Shelby Mut.
cited Cited as authority (rule) Rivera v. H. B. Smith Co.
Mass. App. Ct. · 1989 · confidence medium
Pospisil’s Case, 402 Mass. 820, 823 (1988).
discussed Cited as authority (rule) Lettich's Case
Mass. · 1988 · confidence medium
The board thought it possible, and we believe it to be clear, that the single member “simply meant that the incident on the train while commuting to work was significant in that it was the last physical consequence flowing from a series of emotional and stressful situations at work.” The reviewing board reversed the single member’s decision solely on the ground that, despite the single member’s contrary finding, the em *394 ployee had not established to the board’s satisfaction that his heart or coronary artery disease was caused or made worse by his employment. 1 We held in Pospisil…
Retrieving the full opinion text from the archive…
Barbara Pospisil's Case
Massachusetts Supreme Judicial Court.
Jul 12, 1988.
525 N.E.2d 646
John T. Foynes for the employee., Norman P. Beane, Jr. (William E. Gately, Jr., with him) for the employer.
Hennessey.
Cited by 7 opinions  |  Published
Hennessey, C.J.

This case involves the propriety of the Industrial Accident Reviewing Board’s retroactive application of St. 1985, c. 572, § 25 (codified at G. L. c. 152, § 11C [1986 ed.]) (§ 11C). This provision replaced former G. L. c. 152, § 10, and limits the reviewing board’s ability to overturn a decision of a member of the Industrial Accident Board to instances where the decision “is beyond the scope of his authority, arbitrary or capricious, contrary to law, or unwarranted by the facts.” Section 11C also provides that “[t]he reviewing board may weigh evidence, but may not review determinations by the member who conducted the hearing regarding the credibility of witnesses who have given testimony.”[1] Section 11C[*821] became effective on November 1, 1986. See St. 1985, c. 572, § 70.

The employee sought recovery for an injury occurring on August 26, 1982. Proceedings were held before two separate single members of the Industrial Accident Board in accordance with former c. 152, § 7 (conference), and former c. 152, § 8 (hearing).[2] Both members ruled in favor of the employee. The employer, as self-insurer, filed an appeal with the reviewing board pursuant to former c. 152, § 10, on January 23, 1985. The reviewing board heard the appeal after the effective date of § 11C, and issued its decision on April 15, 1987. The reviewing board refused the employer’s request that it “discount the employee’s explanation of her injury.” The reviewing board concluded that § 11C, which'forbids board reassessment of witness credibility, was a procedural amendment to c. 152 within the meaning of c. 152, § 2A (1986 ed.), and therefore § 11C should be applied retroactively. The reviewing board applied the § 11C standard of review, i.e., the decision must be upheld unless “beyond the scope of his authority, arbitrary or capricious, contrary to law, or unwarranted by the facts,” rather than the broader standard of review contained in former § 10, note 1, supra, and upheld the employee’s award. The employer sought review in the Appeals Court, and we transferred the case to this court on our own motion.

The reviewing board did not err in applying § 11C. Chapter 152, § 2A, provides as follows: “Every act, in amendment of this chapter, in effect on the effective date of this section or thereafter becoming effective which increases the amount or amounts of compensation payable to an injured employee or his dependents shall, for the purposes of this chapter, be deemed to be substantive in character and shall apply only to personal injuries occurring on and after the effective date of such act,[*822] 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.”

The employer argues that, without regard to whether § 11C increases compensation payable to claimants, § 11C takes away its “substantive right. . . of having the credibility determination of the single member reviewed by the three person reviewing board,” and therefore, it should be applied prospectively only. The employer’s approach would be proper with some “amendments” within the meaning of § 2A. See Price v. Railway Express Agency, Inc., 322 Mass. 476, 482-485 (1948). However, § 11C is not such an amendment. Despite the employer’s characterization, § 11C concerns the purely procedural questions of what standard of review will be applied by the reviewing board, and what latitude the reviewing board possesses in reviewing the record generated in the initial proceedings. Section 11C has no impact on the merits questions involved in determining the amount of compensation or the parties’ substantive rights to receive or not to pay compensation. See Goodwin Bros. Leasing v. Nousis, 373 Mass. 169, 172-173 (1977).

Section 11C is, under § 2A, procedural and to be applied retroactively. We add that, even if the special definition contained in § 2A did not exist, § 11C, as a procedural statute, might well be applied retroactively in accordance with general rules of construction. Id. Such retroactive application would be proper where, as here, the reviewing board held its hearing and issued its decision after the effective date of § 11C, even though the injury and the proceedings before the single member occurred prior to that date. See id.; Goes v. Feldman, 8 Mass. App. Ct. 84, 88 (1979), citing City Council of Waltham v. Vinciullo, 364 Mass. 624, 628 (1974).

[*823] The employer’s additional argument that the Legislature “otherwise expressly provided,” see c. 152, § 2A, that § 11C should be applied prospectively is without merit. Nothing in § 11C expressly provides that that section is to be considered substantive for purposes of § 2A. The Legislature explicitly has made such designations regarding other sections of c. 152. See, e.g., St. 1985, c. 572, § 65. Given this legislative action, we will not, as urged by the employer, read an “express” provision by implication in § 11C. See School Comm. of Brockton v. Teachers’ Retirement Bd., 393 Mass. 256, 263 (1984), quoting Beeler v. Downey, 387 Mass. 609, 616 (1982).

The decision of the reviewing board is affirmed. Costs to the employee are to be determined by a single justice of this court under G. L. c. 152, § 12A (1986 ed.).

So ordered.

1

Under former c. 152, § 10, the reviewing board could entirely supersede the single member’s decision. Haley’s Case, 356 Mass. 678, 679 (1970). Former c. 152, § 10, provided, in pertinent part, that “the reviewing board[*821] shall hear the parties, and may hear evidence in regard to pertinent matters and may revise the decision in whole or in part, or may. refer the matter back to the member for further findings of fact.”

2

Under G. L. c. 23E, §4(1986 ed.), single members now are denominated administrative judges.