Mendes's Case

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SJC-12857

MARK MENDES'S CASE.

Suffolk. March 3, 2020. - October 29, 2020.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.1

Workers' Compensation Act, Jurisdiction of Industrial Accident
Board. Words, "Significant contacts."

Appeal from a decision of the Industrial Accident Reviewing
Board.

The Supreme Judicial Court granted an application for
direct appellate review.

John M. Sahady for the claimant.
Richard L. Neumeier (John C. White also present) for the
insurer.
Kathy Jo Cook, Thomas R. Murphy, Kevin J. Powers, & Patrick
M. Groulx, for Massachusetts Academy of Trial Attorneys, amicus
curiae, submitted a brief.

BUDD, J. The claimant, Mark Mendes, is a Massachusetts

resident who entered into an employment contract, performed much

1 Chief Justice Gants participated in the deliberation on
this case prior to his death.
 2

of the work, and was injured all outside the Commonwealth.

After protracted administrative proceedings in the Department of

Industrial Accidents (department), his claim for workers'

compensation ultimately was denied and dismissed by the

department's reviewing board (board), which determined that the

department lacked subject matter jurisdiction over the claim.

The claimant appealed from that determination to the Appeals

Court, and we granted an application for direct appellate

review.

We conclude that, given the significant contacts between

the claimant's employment and the Commonwealth, the workers'

compensation act (act), G. L. c. 152, confers jurisdiction on

the department to adjudicate his claim.2

Background. 1. Workers' compensation act. Originally

passed in 1911, see St. 1911, c. 751, the act was a "response to

strong public sentiment that the remedies afforded by actions of

tort at common law did not provide adequate protections to

workers." Neff v. Commissioner of the Dep't of Indus. Accs.,

421 Mass. 70, 73 (1995), citing Young v. Duncan, 218 Mass. 346,

349 (1914). The act provides: "If an employee . . . receives a

personal injury arising out of and in the course of his

employment . . . in the business affairs or undertakings of his

2We acknowledge the amicus brief submitted by the
Massachusetts Academy of Trial Attorneys.
 3

employer, and whether within or without the commonwealth, he

shall be paid compensation by the insurer or self-insurer" as

provided for in the act. G. L. c. 152, § 26.

"The act was intended to guarantee that workers would

receive payment for any workplace injuries they suffered,

regardless of fault; in exchange for accepting the statutory

remedies, the worker waives any common-law right to compensation

for injuries. . . . The workers' compensation scheme provides

predictability for both employee and employer, balancing

protection for workers with certainty for employers" (quotations

and citations omitted). Benoit v. Boston, 477 Mass. 117, 122

(2017). It did so by "establish[ing] a scheme of interlinked

rights, obligations, and remedies 'all its own, not previously

known to the common or statutory law.'" Merchants Ins. Group v.

Spicer, 88 Mass. App. Ct. 262, 267 (2015), quoting Ahmed's Case,

278 Mass. 180, 184 (1932).

Payments to injured workers are made pursuant to insurance

policies that employers are required to obtain under the act.3

See G. L. c. 152, § 25A. See Awuah v. Coverall N. Am., Inc.,

460 Mass. 484, 494 (2011). Depending on the nature and severity

of the injury and the degree of the resulting incapacity, a

3 Alternatively, employers may join a workers' compensation
self-insurance group, or license as self-insurer. See G. L.
c. 152, § 25A.
 4

covered employee4 may be entitled to an array of benefits

including compensation for medical bills, lost earnings, and

lost earning capacity. See G. L. c. 152, §§ 30, 31, 34, 34A,

35, 36. Where an injured employee's claim for benefits is

contested by the insurer, it advances through a series of

procedural stages in the department to determine whether the

claimant is entitled to benefits, and if so, the type and

amounts of those benefits. See generally Murphy v. Commissioner

of the Dep't of Indus. Accs., 415 Mass. 218, 223-225 (1993),

S.C., 418 Mass. 165 (1994); G. L. c. 152, §§ 10-11C.

Over the years, the Legislature has amended the act to

broaden the protections and benefits afforded to injured

employees. See, e.g., Sellers's Case, 452 Mass. 804, 812, 814

(2008) (Legislature broadened definition of "average weekly

wages," made employer participation in workers' compensation

scheme mandatory, and established fund to pay benefits to

employees of uninsured employers); Lavoie's Case, 334 Mass. 403,

406-407 (1956) (amendments to G. L. c. 152, § 26, intended to

enlarge, not restrict, act's scope). In sum, the act is "a

humanitarian measure designed to provide adequate financial

4 An employee has the right to opt out of the workers'
compensation scheme and retain the right to sue the employer in
tort by making such an intention clear in writing upon hire.
See G. L. c. 152, § 24; Wentworth v. Henry C. Becker Custom
Bldg. Ltd., 459 Mass. 768, 773 n.6 (2011).
 5

protection to the victims of industrial accidents." LaClair v.

Silberline Mfg. Co., 379 Mass. 21, 27 (1979).

2. Factual and procedural history. The material facts,

taken from the record, are undisputed. Franklin Logistics, Inc.

(employer),5 a freight transportation trucking company, employed

between 800 and 900 tractor-trailer drivers who transported

goods across approximately twenty States east of the Mississippi

River.

The employer advertised for drivers nationally; the

claimant responded to an advertisement the employer placed in a

local Massachusetts newspaper. He completed an online

application for a position. After screening the claimant's

application, the employer invited him to its Pennsylvania

headquarters to participate in a three-day orientation program.

In January 2009, the claimant entered into an employment

contract with the employer at the employer's Pennsylvania

headquarters after successfully completing the program.

As a tractor-trailer driver, the claimant picked up

trailers loaded with goods and delivered them throughout the

northeast and numerous other States. Although the employer did

not own cargo terminals in Massachusetts, it used three

5At the time the claimant filed the claim, Franklin
Logistics, Inc., was a wholly-owned subsidiary of Smith
Transport Inc. Neither was incorporated in Massachusetts.
 6

facilities belonging to customers in Bondsville, Leominster, and

Weymouth where drivers, including the claimant, exchanged empty

trailers for trailers loaded with goods to be delivered.

Over the course of his employment, the claimant drove a

total of 112,436.2 miles. Of those miles, he drove 31,739.9

miles (28.23%) in Pennsylvania; 13,289.3 miles (11.82%) in

Massachusetts; 11,416.4 miles (10.15%) in New York; and 10,754.2

(9.56%) in Connecticut. He drove the remaining 45,236.4 miles

(40.2%) in twenty-one other States. In addition, the claimant

made 110 trips for which a city in Massachusetts was at least

the city of origin, the city where goods were loaded into his

trailer for hauling, the destination city where the goods were

delivered, or the terminating city. On an employer-generated

report of the claimant's driving history with the company,

Massachusetts appears more than 150 times as the location of a

major trip event. In total, the claimant drove or parked his

truck in Massachusetts on approximately 166 of the 356 days

during which he was employed by the employer, more than were

spent in any other State.

On January 18, 2010, the claimant injured his lower back

while attempting to attach a loaded trailer to his truck at a

location in Maine. He was diagnosed with a bulging disc that

caused him to be physically unable to continue his work as a

truck driver.
 7

The claimant filed a claim for workers' compensation

benefits with the department.6 Although an administrative judge

found that the claimant was disabled physically as a result of

the work-related injury and had no earning capacity, the judge

dismissed the claim on a procedural ground, determining that

Massachusetts lacked jurisdiction over the claim because it was

neither the place of injury nor the place of hire.

The claimant appealed from this decision to the board,

which recommitted the matter to the administrative judge for

further findings. On remand, a different administrative judge7

found that the claimant's "numerous and ongoing contacts with

Massachusetts" conferred jurisdiction in Massachusetts.

The matter once again was appealed to the board, this time

by the insurer. The board concluded that the administrative

judge erred in concluding that the department had jurisdiction

over the claim and therefore reversed the decision.8

6 The claimant sought temporary total incapacity benefits,
G. L. c. 152, § 34; partial incapacity benefits, G. L. c. 152,
§ 35; and medical benefits, G. L. c. 152, §§ 13 and 30.

7 The original administrative judge held further hearings on
remand; however, he left the bench prior to making any
additional findings. The matter was transferred to a second
administrative judge who relied on the testimony and exhibits
already entered in evidence.

8 The employer initially argued that Indiana had exclusive
jurisdiction over the claimant's claim based on a forum
selection agreement the claimant signed upon hire. When the
board found that the forum selection agreement was not
 8

The claimant appealed from the board's decision to the

Appeals Court in accordance with G. L. c. 152, § 12 (2). We

granted the insurer's application for direct appellate review.

Discussion. "Subject matter jurisdiction . . . among the

[Commonwealth's] trial courts and administrative agencies 'is

both conferred and limited by statute.'" Middleborough v.

Housing Appeals Comm., 449 Mass. 514, 520 (2007), quoting Edgar

v. Edgar, 403 Mass. 616, 619 (1988), S.C., 406 Mass. 628 (1990).

The act empowers the department to administer the Commonwealth's

workers' compensation system. The question of the department's

jurisdictional limits, therefore, is one of statutory

interpretation. See, e.g., Merchants Ins. Group, 88 Mass. App.

Ct. at 267.

"The interpretation of a statute by the agency charged with

primary responsibility for administering it is entitled to

substantial deference." Gateley's Case, 415 Mass. 397, 399

(1993). See G. L. c. 30A, § 14 (7) (in reviewing board

decisions, we give "due weight to the experience, technical

competence, and specialized knowledge of the agency").

"[U]ltimately, [however,] the duty of statutory interpretation

enforceable in Massachusetts as against public policy, the
employer argued instead that the claimant's employment was
localized in Pennsylvania, the place of hire, and that
Pennsylvania -- and not Massachusetts -- had jurisdiction under
a theory of localization of employment.
 9

is for the courts" (quotation and citation omitted). Moss's

Case, 451 Mass. 704, 709 (2008). We review the board's

interpretation of the act on a de novo basis. See McDonough's

Case, 448 Mass. 79, 81 (2006); Merchants Ins. Group, 88 Mass.

App. Ct. at 267.

1. Jurisdiction under the act. "Our primary duty is to

interpret a statute in accordance with the intent of the

Legislature." Pyle v. School Comm. of S. Hadley, 423 Mass. 283,

285 (1996). We have noted on previous occasions that the act

"is a remedial statute and should be given a broad

interpretation, viewed in light of its purpose and to promote

the accomplishment of it beneficent design" (quotation and

citation omitted). Neff, 421 Mass. at 73. See Higgins's Case,

460 Mass. 50, 53 (2011), quoting McCarty's Case, 445 Mass. 361,

364 (2005).

Although the act states that it applies to employees who

receive a work-related injury "whether within or without the

commonwealth,"9 G. L. c. 152, § 26, it does not specify its

jurisdictional limits. We have recognized, though, that the

quoted language was intended to "enlarge, not restrict, the

scope of the act." Lavoie's Case, 334 Mass. at 407. See

Conant's Case, 33 Mass. App. Ct. 695, 697 (1992) ("Underlying

9The act was amended to include the quoted language in
1927. See St. 1927, c. 309, § 3.
 10

that provision is the State's legitimate interest in avoiding

the undesirable consequence to a resident worker injured in

another State of being unable to travel to seek benefits and

possibly becoming a public charge").

We have interpreted the provision to grant Massachusetts

jurisdiction over a claim where the employment contract was made

in the Commonwealth even if the injury occurred elsewhere. See

McLaughlin's Case, 274 Mass. 217, 220 (1931). We also have

determined that Massachusetts may exercise jurisdiction over a

claim when the injury occurred in the Commonwealth even if the

employment contract was entered into elsewhere. See Lavoie's

Case, 334 Mass. at 407. However, this court apparently has not

had occasion before now to consider whether jurisdiction lies in

circumstances where the Commonwealth is neither the place of

hire nor the place of injury, although the board has. See

Carlin's Case, 3 Mass. Workers' Comp. Rep. 41, 42 (1989).

Acknowledging that the act is to be interpreted so as "to

broaden, rather than narrow, Massachusetts jurisdiction," the

board has considered an alternative test to determine

jurisdiction -- the "place of the employment relation."

Hillman's Case, 15 Mass. Workers' Comp. Rep. 67, 74 (2001). See

Carlin's Case, 3 Mass. Workers' Comp. Rep. at 42. As framed by

the board, the place of the employment relation is the place of

hire, unless something has happened to transfer the employment
 11

relation to another State. The employment relation may be

transferred from the place of hire if a new contract is formed

in another State, or if the employee acquires "a fixed and non-

temporary employment situs" in another State. Hillman's Case,

supra at 72, quoting Carlin's Case, supra. Applying this test

to determine the location of the employment relationship in

Carlin's Case, the board determined, in the circumstances of

that case, that an employee who was hired and injured elsewhere

had "sufficient contacts" with Massachusetts such that he had

"acquired a fixed and non-temporary employment situs," thus

giving Massachusetts jurisdiction over his workers' compensation

claim. Carlin's Case, supra. See Hillman's Case, supra at 75

(Massachusetts had jurisdiction where "employee maintained

sufficient contacts" with Commonwealth following involuntary

transfer out of State such that employment relation was not

transferred to other State).

Other States also have used the location of the employment

relationship as an alternative test to determine whether

jurisdiction lies for the purposes of adjudicating workers'

compensation claims. See, e.g., DiMuro v. Industrial Comm'n of

Ariz., 142 Ariz. 57, 61 (1984) ("For out-of-state injuries, it

is the presence of the employment relationship in Arizona which

establishes Arizona's interest for purposes of applying its

compensation laws"); Burse v. American Int'l Airways, 262 Conn.
 12

31, 38 (2002) (jurisdiction lies if State is "[1] the place of

the injury; [2] the place of the employment contract; or [3] the

place of the employment relation" [citation omitted]); Johnson

v. United Airlines, 550 So. 2d 134, 135 (Fla. Ct. App. 1989) (in

determining jurisdiction under State workers' compensation

statute, "it is the principal location of the claimant's

employment and not the principal location of the employer's

business which is relevant"); Shannon v. Communications

Satellite Corp., 302 A.2d 582, 585 (Me. 1973) (jurisdiction may

lie if State is "place employment relationship exists or is

carried out"); Matter of Bugaj v. Great Am. Transp. Inc., 20

A.D.3d 612, 613 (N.Y. 2005), citing Matter of Nashko v. Standard

Water Proofing Co., 4 N.Y.2d 199, 201 (1958) ("The inquiry does

not focus on the location of the employer, but upon the location

of the employment"); Todacheene v. G & S Masonry, 116 N.M. 478,

481 (1993) (claimant may recover under State workers'

compensation act if employment "principally localized" in State,

as defined by statute to mean employee is domiciled in State and

spends "substantial part of his working time in service of his

employer" in State); Perkins v. Arkansas Trucking Servs., 351

N.C. 634, 637 (2000) (jurisdiction lies for out-of-State

injuries if [1] employment contract was made in State; [2]

employer's principal place of business is in State; or [3] "the

employee's principal place of employment" is in State); Madden
 13

v. The Holland Group of Tenn., Inc., 277 S.W.3d 896, 898-899

(Tenn. 2009) (by statute, jurisdiction may lie if employment is

"principally localized" in State or if employee is resident of

State and State has "substantial connection" to employer-

employee relationship).

States have taken different approaches to determining

whether an employment relationship is located within their

borders. Some, as did the board here, start from the

presumption that the place of hire is the place of the

employment relationship unless that relationship has been

transferred to another State. See, e.g., DiMuro, 142 Ariz. at

62. Other States conduct a comparative analysis of the contacts

between the State and the employment relationship, concluding

that jurisdiction may only lie if the State has more significant

contacts with the employment relationship than does any other

State. See, e.g., Perkins, 351 N.C. at 638 (jurisdiction lies

where State is employee's "principal place of employment" and no

other State has same degree of "significant contacts to

plaintiff's employment"). Still other States have concluded

that the location of the employment relationship within those

States depends upon the nature and extent of the employment

contacts with the State. See, e.g., Burse, 262 Conn. at 38

(ties to Connecticut must be significant in order for it to be

place of employment relationship); Hazealeferiou v. Labor Ready,
 14

947 So. 2d 599, 605 (Fla. Ct. App. 2007) (for court evaluating

"principal localization" of employment relationship, "temporal

distribution" of employment is "a critical factor," which must

be considered in conjunction with nature of contacts with State

to determine whether sufficient contacts with State exist);

Harlow v. Emery-Waterhouse Co., 484 A.2d 1002, 1004-1005 (Me.

1984) (evaluating contacts with State arising from employment

relationship); Matter of Nashko, 4 N.Y.2d at 201 ("If sufficient

significant contacts with this State appear so that it can

reasonably be said that the employment is located here, then the

Workmen's Compensation Board has jurisdiction"); Knapp v. Hamm &

Phillips Serv. Co., 824 N.W.2d 785, 789 (S.D. 2012) ("We look

for factors that tend to show a 'substantial connection' with

South Dakota on a case-by-case basis to determine the location

of the employment relationship" [citation omitted]); Madden, 277

S.W.3d at 900-901 (Tennessee resident must demonstrate

"substantial connection" between State and employer-employee

relationship to establish jurisdiction based on employment

relationship). See also Cardillo v. Liberty Mut. Ins. Co., 330

U.S. 469, 476 (1947) (State's "legitimate interest in providing

adequate work[ers'] compensation measures for its residents

. . . depends upon some substantial connection between the

[State] and the particular employee-employer relationship").
 15

In the instant case, the board appears to have adopted the

narrowest of these tests for determining whether an employment

relationship is located in Massachusetts. Citing Carlin's Case,

3 Mass. Workers' Comp. Rep. 41, the board concluded that because

Massachusetts was neither the place of hire nor the place of

injury, the only way for the Commonwealth to have jurisdiction

over the employee's claim would be if "something happened" to

transfer the relationship from the place of hire, Pennsylvania,

to Massachusetts. Because the employee did not make such a

showing, the board concluded that jurisdiction in the

Commonwealth could not be established.

Given the remedial nature of the statute, and the mandate

to broaden rather than restrict jurisdiction under the act, we

conclude that a more flexible approach is necessary. We hold,

therefore, that jurisdiction to adjudicate workers' compensation

claims lies in Massachusetts where there are sufficient

significant contacts between the Commonwealth and the employment

such that the employment can be said to be located in the

Commonwealth.10 Consideration of the location of the employment

10We note that it is possible for jurisdiction to lie in
more than one State. See Director, Office of Workers'
Compensation Programs, U.S. Dep't of Labor v. National Van
Lines, Inc., 613 F.2d 972, 981 (D.C. Cir. 1979) (State with
"substantial contacts to an employment relationship may apply
its compensation laws without regard to whether another
jurisdiction has or could have asserted jurisdiction"); Springer
v. J.B. Transp., 145 Conn. App. 805, 817 (2013) (question of
 16

relationship for jurisdictional purposes more accurately

embodies the intent of the Legislature because it better

reflects the reality of the geographical mobility of large

segments of workers.

Although determining the location of the employment

relationship will depend upon the facts of each case, relevant

considerations may include whether the employee is a resident of

the Commonwealth; the employer's contacts with and presence in

the Commonwealth; whether the employee was recruited or hired in

the Commonwealth; whether and under what conditions the employee

is able, or expected, to return to the Commonwealth between

assignments; and whether the employer procured workers'

compensation insurance in Massachusetts. See Burse, 262 Conn.

at 40; Matter of Nashko, 4 N.Y.2d at 202; Matter of Galster v.

Keen Transp., 158 A.D.3d 959, 960-961 (N.Y. 2018); Matter of

Bugaj, 20 A.D.3d at 613-614; Matter of Edick v. Transcontinental

Refrigerated Lines, 300 A.D.2d 848, 849 (N.Y. 2002); Knapp, 824

N.W.2d at 790-791.

2. Analysis. Evaluating the contacts between the

claimant's employment and the Commonwealth, we note that prior

jurisdiction based on location of employment relationship does
not require showing that employment relationship exists only in
forum State); Martin v. American Colloid Co., 804 N.W.2d 65, 69
n.2 (S.D. 2011) (more than one State may have "substantial
connection to employment relationship, and both could therefore
be considered the location of the employment relationship").
 17

to and during his employment, the claimant was a Massachusetts

resident who was licensed by the Commonwealth to drive

commercial vehicles, including tractor-trailers. See, e.g.,

Matter of Edick, 300 A.D.2d. at 849. The claimant learned of

the position with the employer by way of an advertisement placed

in a local Massachusetts newspaper. See, e.g., Matter of Bugaj,

20 A.D.3d at 614.

During the course of his employment, the claimant drove the

employer's tractor-trailer thousands of miles in Massachusetts,

more than he drove in any other State except Pennsylvania.

Further, the claimant had employment-related contact with

Massachusetts on almost one-half (46.6%) of the days he worked

for the employer, more than with any other State. He picked up

tons of goods from, and delivered tons of goods to, the

employer's Massachusetts customers. See, e.g., Springer v. J.B.

Transp., Inc., 145 Conn. App. 805, 825-826 (2013).

The employer made regular use of three customer-owned

facilities where drivers, including the claimant, regularly

would drop off empty trailers and pick up loaded ones. See,

e.g., Matter of Edick, 300 A.D.2d. at 849. The claimant was

permitted to park the tractor-trailer in Massachusetts and stay

at home during days off. See, e.g., Matter of Bugaj, 20 A.D.3d

at 614.
 18

After sustaining his injury, the claimant returned to

Massachusetts for medical care. See, e.g., Matter of Galster,

158 A.D.3d at 960. The employer maintained workers'

compensation insurance with the insurer, which provided

insurance to Massachusetts companies. See, e.g., Matter of

Nashko, 4 N.Y.2d at 202.

Considering the foregoing, there were sufficient

significant contacts between Massachusetts and the claimant's

employment such that the employment relationship was located in

Massachusetts. We therefore conclude that the Commonwealth has

jurisdiction over the claimant's claim.

Conclusion. We vacate the board's decision and remand the

case to the department for further proceedings consistent with

this opinion.

So ordered.