The opinion
Concurring and Dissenting Opinion
White, J.
I concur in the majority opinion insofar as it affirms the trial court judgment, but I also agree with appellee’s contention that once the improperly considered evidence is excluded from consideration, the evidence establishes as a matter of law that he is entitled to disability benefits. The *54 majority seems to say that it, too, would agree but for the fact that the improperly considered evidence was not inherently improper but only procedurally so. The distinction escapes me. However the consideration of that evidence is characterized, it resulted in agency action being unlawfully withheld. Under the A.A.A. provision the majority has emphasized the reviewing Superior Court was authorized to compel that action. As I understand its judgment that is precisely what it did and it should, therefore, be affirmed.
Note. — Reported at 314 N.E.2d 79 .