Case of Sellers

• Decision Date: 19 December 2008
• Docket Number: SJC-10195
• Citation: 898 N.E.2d 494,452 Mass. 804
• Parties: Michael SELLERS'S CASE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

898 N.E.2d 494

452 Mass. 804

Michael SELLERS'S CASE.

SJC-10195

Supreme Judicial Court of Massachusetts, Suffolk.

Argued October 8, 2008.

Decided December 19, 2008.

Paul H. Nugent, Boston, for the employee.

David A. Guberman, Assistant Attorney General, for Workers' Compensation Trust Fund.

Mary Jane McKenna, Boston, & J. Michael Conley, Braintree, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.¹

MARSHALL, C.J.

In cases where the Workers' Compensation Trust Fund (trust fund)² is required to pay workers' compensation benefits because an employee suffers a work-related injury while in the employ of an employer who has failed to obtain workers' compensation insurance, should those benefits be based on the employee's total earnings, including concurrent wages earned from an insured employer, or based only on wages received from the uninsured employer? We conclude that the benefits should be based on the employee's total average weekly wage, whether received from an insured or uninsured employer.

1. Background. On September 1, 2001, Michael Sellers was assisting with the trimming of trees when a heavy tree limb fell on him, fracturing two of his vertebrae, lacerating his spinal cord, and leaving him a quadriplegic. Sellers, who was thirty-three years old at the time of his injury, is now permanently and totally incapacitated from working.

Sellers was injured while working for John Havlin Tree Service (Havlin), which, in violation of the Workers' Compensation Act (act), G.L. c. 152, did not carry workers' compensation insurance. See G.L. c. 152, § 25A.³ He was concurrently employed by, and earned most of his income from, the Steve Miller Company (Miller), which was properly insured under the act.⁴ Because Sellers's injury occurred while he was working for an uninsured employer, the trust fund, to which all Massachusetts employers subject to the act must contribute, is required to pay his workers' compensation benefits. G.L. c. 152, § 65(2).⁵ Letteney's Case, 429 Mass. 280, 285 & n. 3, 707 N.E.2d 1071 (1999). Additionally, because Sellers's work-related injury left him totally and permanently disabled, he is entitled to "a weekly compensation of two-thirds of his average weekly wage before the injury." G.L. c. 152, § 34A.⁶

Following his injury, Sellers filed a claim for workers' compensation benefits with the Department of Industrial Accidents. An administrative judge held a conference between the parties pursuant to G.L. c. 152, § 10A,⁷ and subsequently issued a conference order awarding Sellers temporary total incapacity benefits from the date of his injury calculated by considering only his average weekly wage from Havlin, the uninsured employer. G.L. c. 152, § 34.⁸ Both Sellers and the trust fund appealed.⁹ G.L. c. 152, § 10A (3).¹⁰ At a de novo hearing before the same judge, id., the parties stipulated that, for purposes of receiving workers' compensation benefits, Sellers's injuries had left him permanently and totally disabled, and agreed that the sole issue remaining for consideration was the determination of Sellers's average weekly wage.¹¹ The judge then reached a different conclusion, ruling that the trust fund must pay Sellers permanent total incapacity benefits calculated by considering his average weekly wage from both employers, Havlin and Miller. She also awarded Sellers his attorney's fees. See G.L. c. 152, § 13A (2).¹²

The trust fund took an appeal to the reviewing board (board). Citing, among other things, the lack of a "policy or rationale to justify an interpretation" that "would deprive the employee the benefit of his concurrent earnings," the board affirmed the decision of the administrative judge. The trust fund appealed. The Appeals Court reversed, stating that, because of the definition of "average weekly wages" contained in the act, it was "constrained to conclude" that Sellers was "not entitled to have his average weekly wages calculated by combining his concurrent wages earned from both the uninsured employer and the insured employer." Sellers's Case, 71 Mass.App.Ct. 75, 76, 879 N.E.2d 1243 (2008). We granted Sellers's application for further appellate review. We now affirm the decision of the board.¹³

2. Discussion. Because "the primary goal of the act is wage replacement," McDonough's Case, 448 Mass. 79, 83, 858 N.E.2d 1084 (2006), an employee permanently and totally disabled in the course of employment is eligible for weekly compensation benefits based on the employee's "average weekly wage" before the injury. G.L. c. 152, § 34A. "Average weekly wages," in turn, are defined in G.L. c. 152, § 1(1), which states, in part, that "[i]n case the injured employee is employed in the concurrent service of more than one insured employer or self-insurer, his total earnings from the several insured employers and self-insurers shall be considered in determining his average weekly wages" (emphasis added).¹⁴

The trust fund argues that the plain meaning of the statutory definition of "average weekly wages" precludes Sellers from receiving workers' compensation payments based on his concurrent earnings from both Miller and Havlin. Sellers responds that where, as here, the statutory language does not address the precise issue presented, the definitional section must be interpreted in the context of the purposes of the act and the workers' compensation insurance scheme as a whole. We agree. Precluding an injured employee such as Sellers from receiving wage replacement benefits calculated on the basis of his concurrent employment because one of his employers failed to obtain workers' compensation insurance would be contrary to the purposes of the act, is not compelled by the statutory language, and would be inconsistent with the mandate of the definitional section of the act to consider the issue presented in context.

The concurrent employment provision of G.L. c. 152, § 1(1), on which the trust fund relies, was added to the definition of "average weekly wages" in 1935. St.1935, c. 332, § 1. Prior to 1935, an injured employee who had more than one concurrent employer was usually awarded workers' compensation benefits based solely on wages paid by the employer in whose employ the employee was working when injured. See Nelson's Case, 333 Mass. 401, 402-403, 131 N.E.2d 193 (1956) (citing cases prior to 1935 in which rate of compensation was based only on wages where employee was injured). But see Gillen's Case, 215 Mass. 96, 102 N.E. 346 (1913) (awarding compensation based on wages from all employers where longshoreman worked for many employers during course of day or week). Then in 1935, the Governor, in an address to the Legislature, proposed that the existing workers' compensation scheme be "liberalized and strengthened." 1935 Senate Doc. No. 1, at 14. He requested, among other things, that the Legislature define the term "average weekly wage" "more equitably" for the "protection of workers suffering serious injury in the discharge of their duties," noting that injured workers too frequently received a "paltry sum." Id. at 15. Within months, the Legislature had amended the definition of "average weekly wages" to include a provision for the calculation of wages in cases of concurrent employment, the provision at issue here. St.1935, c. 332, § 1. Our task is to determine whether that amendment limits the calculation of average weekly wage benefits to only those employees who are employed concurrently by two or more insured employers, excluding all employees engaged in the concurrent service of one or more uninsured employers. We do so employing familiar canons of statutory construction.

Where, as here, a statute is "simply silent" on a particular issue, we interpret the provision "in the context of the over-all objective the Legislature sought to accomplish." National Lumber Co. v. LeFrancois Constr. Corp., 430 Mass. 663, 667, 723 N.E.2d 10 (2000). See Perry v. Commonwealth, 438 Mass. 282, 288, 780 N.E.2d 53 (2002) (changes to statutory scheme "must be interpreted in context"). That context is not in doubt. As this court has long recognized:

"The Act was enacted as a `humanitarian measure' in response to strong public sentiment that the remedies afforded by actions of tort at common law did not provide adequate protection to workers. ... It is a remedial statute and should be given a broad interpretation, viewed in light of its purpose and to `promote the accomplishment of its beneficent design.'" (Citations omitted.)

Neff v. Commissioner of the Dep't of Indus. Accs., 421 Mass. 70, 73, 653 N.E.2d 556 (1995), quoting Young v. Duncan, 218 Mass. 346, 349, 106 N.E. 1 (1914). See CNA Ins. Cos. v. Sliski, 433 Mass. 491, 493, 744 N.E.2d 634 (2001) (same).

As noted earlier, the "beneficent design" that the workers' compensation scheme seeks to accomplish is "wage replacement" for injured employees, McDonough's Case, supra at 83, 858 N.E.2d 1084, which is to be calculated on the basis of the injured employee's earning capacity. See Gunderson's Case, 423 Mass. 642, 644, 670 N.E.2d 386 (1996), quoting 2 A. Larson, Workmen's Compensation § 60.11(f), at 10-647—10-648 (1996) ("The entire objective of wage calculation is to arrive at a fair approximation of claimant's probable future earning capacity"); Gillen's Case, supra at 99, 102 N.E. 346 ("The loss of [the employee's] capacity to earn, as demonstrated by his conduct in such regular employment, is the basis upon which his compensation should be based"). We consider the application of the 1935 revisions to the definition of "average weekly wages" to Sellers' case against that background, recognizing that the 1935 amendment to the act, as all other such changes, "should be broadly construed to enlarge the rights of employees and liberalize its interpretation." L.Y. Nason, C.W. Koziol, & R.A. Wall, Workers' Compensation § 2.12, at 48 ...