Injured Employee Entitled to Trust Fund Benefits for Income From Multiple Jobs Says Massachusetts Supreme Court

The Massachusetts Supreme Judicial Court has determined that the Workers’ Compensation Trust Fund must pay benefits to an employee of a tree cutting company who failed to obtained workers’ compensation insurance based on the employee’s total earnings, including wages earned from a second job with an insured employer.



thmb_Limb_falling_from_free_fall_cut.jpgThe thirty-three (33) year old worker suffered a severe injury in September, 2001, when a tree limb fell onto him, severing his spinal column and leaving him a quadriplegic. and totally disabled. The tree service had violated the Workers’ Compensation Act, G.L. c. 152, s. 25A, by not carrying workers’ compensation insurance. The worker earned most of his income from a second job with another company, which was properly insured, but because the injury occurred while he was working for an uninsured employer, the trust fund was required to pay all of his benefits.

Following the accident, the worker filed for workman’s compensation benefits, seeking two thirds of his average weekly wage from both jobs because he was totally and permanently disabled. The Trust fund objected and an administrative judge thereafter issued an order awarding benefits from the date of his injury calculated by considering only his average weekly wage from the uninsured employer.

Both parties appealed, and at a de novo hearing before the same judge, but with a stipulation that the worker was permanently and totally disabled. This time the judge ruled that the trust fund must pay permanent total incapacity benefits based on the worker’s average weekly wage from both employers.

The trust fund then took an appeal to the reviewing board, who affirmed the judge’s second order. The trust fund then appealed and the Appeals Court reversed, relying on the definition of “average weekly wages” contained in the act. The SJC granted the workers application for further appellate review and affirmed the decision of the Board.

The Court reviewed the history of the concurrent employment provision of G.L. c. 152, § 1(1), which was added to the definition of “average weekly wages” in 1935. Before 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.

The question for the Court then was whether the 1935 amendment limited the calculation of average weekly wage benefits to only those employees who are employed concurrently by two or more insured employers. This would have the effect of excluding the worker in this case who was engaged in the concurrent service of one or more uninsured employers.

The Court decided in the negative, on the basis that preventing a worker as in this case 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, was not compelled by the language or the definitions section of the statute.

The Court therefore determined that the establishment of the trust fund and the mandating of workers’ compensation insurance for nearly all employers after 1935 required the trust fund to pay Sellers workers’ compensation benefits calculated on his average weekly wages from both of his employers, uninsured and insured.

The decision is a significant victory for employees because it avoids the worker from being financially punished when an employer improperly avoids its obligations to carry workingman’s compensation insurance for its employees, even if it is the trust fund, which must tender the payments.


Michael Sellers Case

SJC-10195, December 19, 2008.