Sellers's Case

In cases where the Workers’ Compensation Trust Fund (trust fund)2 is required to pay workers’ compensa-*805tian 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 *806Case, 429 Mass. 280, 285 & n.3 (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 *807uninsured 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 nova 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 *808“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 (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 (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 *809definition 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 (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 (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.” *8101935 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 (2000). See Perry v. Commonwealth, 438 Mass. 282, 288 (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 (1995), quoting Young v. Duncan, 218 Mass. 346, 349 (1914). See CNA Ins. Cos. v. Sliski, 433 Mass. 491, 493 (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, which is to be calculated on the basis of the injured employee’s earning capacity. See Gunderson’s Case, 423 Mass. 642, *811644 (1996), quoting 2 A. Larson, Workmen’s Compensation § 60.11(f), at 10-647 to 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 (“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 (3d ed. 2003) (Nason, Koziol, & Wall).

The purpose of the 1935 amendment to G. L. c. 152, § 1 (1), is “plain.” Nelson’s Case, supra at 403. As this court noted, after 1935, an injured employee’s compensation “was to be no longer computed only upon the rate of wages that he was receiving from the particular contract of employment in which he was actually engaged at the time of his injury.” Id. Concerning the Legislature’s reference to “insured” concurrent employers, it is obvious why the Legislature selected that term when it amended the statute in 1935. At the time, the workers’ compensation scheme differed in two significant and relevant respects from the workers’ compensation system now in place. First, in 1935 employer participation in the workers’ compensation system was voluntary. See Nason, Koziol, & Wall, supra at § 2.3, at 20. Participation remained elective until 1943, when it became mandatory. Id. Second, in 1935 there had not yet been established a fund or other source of money to pay workers’ compensation benefits for employees injured while working for employers who elected not to purchase insurance. See id. at § 7.4, at 133. It was not until 1985 that the Legislature established a fund to pay workers’ compensation benefits for employees injured while in the employ of uninsured employers. See note 2, supra. Thus in 1935, when the act was amended to provide for concurrent wages as the basis for calculating an injured employee’s average weekly wages, the only employers within the “common system” of Massachusetts workers’ compensation, Letteney’s *812Case, 429 Mass. 280, 286 (1999), were those who voluntarily were “insured.” St. 1935, c. 332, § 1. Employers who were not insured did not participate in and were not part of the system. There was, therefore, no need for the Legislature to advert to the calculation of average weekly wages by uninsured employers. See Letteney’s Case, supra at 284 (“The Legislature need not, and indeed cannot, anticipate every circumstance that may arise under a general principle it enacts”).

Since 1935, the Legislature has amended the act to mandate that nearly all employers carry workers’ compensation insurance or qualify as self-insurers.15 See, e.g., St. 1943, c. 529, § 1; St. 1971, c. 811. It also has established the trust fund to pay for, inter alla, benefits for an employee injured while working for an employer who is not insured in contravention of the act. See note 2, supra. Thus, unlike in 1935, today all Massachusetts employers subject to the act participate in the “common system” of workers’ compensation. Letteney’s Case, supra at 286. The trust fund notes correctly that while the act has been amended in these respects, the Legislature has not amended the concurrent employment provision of G. L. c. 152, § 1 (1). This, the trust fund concludes, reflects the “manifest intention” of the Legislature to limit the scope of the definition of concurrent wages to insured employers only. We disagree.

One of the purposes of establishing the trust fund “was to give employees of uninsured employers the same rights, benefits, and duties under the workers’ compensation act as employees of insuring employers” (emphasis added). Nason, Koziol, & Wall, supra at § 7.4, at 133. See 452 Code Mass. Regs. § 3.04 (1997) (“An employee of any uninsured employer shall be entitled, without election and through the [trust fund], to the weekly compensation and other medical and vocational rehabilitation benefits provided under [G. L.] c. 152”). Those “rights” and “benefits” include providing an injured employee with a monetary award that reflects the earning capacity of which the work-related injury deprived him. See Gunderson’s Case, 423 *813Mass. 642, 644-645 (1996), and cases and authorities cited; 5 A. Larson & L.K. Larson, Workers’ Compensation § 93.03[2] (2008) (purpose of act “is to estimate accurately the claimant’s earning capacity and provide compensation bearing a proper relation to it”). The trust fund’s reasoning relies on “the maxim expressio unius est exclusio alterius, which is at most only a fallible aid to decision,” would “lead to an awkward and even intolerable result, and is therefore abandoned for a more liberal or more encompassing approach.” Mailhot v. Travelers Ins. Co., 375 Mass. 342, 348 & n.6 (1978), citing Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 Vand. L. Rev. 395, 405 (1950). That maxim “is not to be followed where to do so would frustrate the general beneficial purposes of the legislation.” Harborview Residents’ Comm., Inc. v. Quincy Hous. Auth., 368 Mass. 425, 432 (1975) (discussing G. L. c. 121B, § 32). Cf. McCarty’s Case, 445 Mass. 361, 376 (2005) (Sosman, J., concurring) (“one searches in vain for any reason why the Legislature would have so distorted the workers’ compensation system merely because the injured worker was injured on a public construction project as opposed to some other type of job”).

When faced with an analogous situation, this court has reached a result similar to the one we reach today. In Van Bibber’s Case, 343 Mass. 443 (1962), the court interpreted a provision in G. L. c. 152, § 18, which limited the liability of workers’ compensation insurers to injuries taking place in or about the contractor’s “premises” when the insured employer had subcontracted its work.16 General Laws c. 152, § 18, as amended by St. 1938, c. 102, provided, “The word ‘premises,’ as used in *814this section, shall include the public highways if the contract requires or necessitates the use of the public highways.” Van Bibber’s Case, supra at 449-450. The employee, who was employed to haul fill from a gravel pit, was injured on a road that provided the only access to the pit, and the evidence did not establish that the road was a “public highway.” Id. at 450. This court, holding that the 1938 amendment “should be construed to effectuate its purpose which plainly was to enlarge rather than to restrict the meaning of the word ‘premises,’ and thus broaden the protection afforded to workmen under the act,” concluded that benefits should not be conditioned on whether the road was a “public highway.” Id. at 450-451. The 1935 amendment at issue in this case was similarly plainly enacted to enlarge rather than to restrict the meaning of “average weekly wages” and should not be used to restrict benefits to employees who are grievously injured while in the employ of employers who are illegally uninsured.

Our conclusion is also consistent with the definitional instructions of the act. General Laws c. 152, § 1 (1), states, at the outset, that “[t]he following words as used in this chapter shall, unless a different meaning is plainly required by the context or specifically prescribed, have the following meanings” (emphasis added). The context of the establishment of the trust fund and the mandating of workers’ compensation insurance for nearly all employers after 1935 requires the trust fund to pay Sellers workers’ compensation benefits calculated on his average weekly wages from both of his employers, uninsured and insured.17

*8153. Conclusion. For the foregoing reasons, the decision of the board is affirmed.

So ordered.