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Lee v. International Data Group6/10/2002
icial relief in the absence of a demonstration that such remedy would be futile or seriously inadequate, under the exhaustion principle); Boston Edison Co. v. Brookline Realty & Investment Corp., 10 Mass. App. Ct. 63, 66-67 (1980) (administrative rather than judicial resolution of a controversy within agency authority is preferable under the doctrine of primary jurisdiction).
The plaintiff also misconstrues the insurer's obligation to pay benefits under G.áL. c.á152, §á7, because that obligation is not triggered until the insurer receives either "an employer's first report of injury," which must be submitted on a form prescribed by DIA, G.áL. c.á152, §á6; or "an initial written claim for weekly benefits on a form prescribed by the department," which would be filed by the claimant employee. G.áL. c.á152, §á7.
There is no evidence on this record that the plaintiff ever filed a claim with DIA against IDG or its insurer, or made any effort to obtain compensation for her injuries other than by launching a series of court actions -- in defiance of one of the original and fundamental purposes of the workers' compensation system, "to decrease the opportunity for unnecessary litigation." Nichol's Case, 217 Mass. 3, 5 (1914). Any alleged failure of either IDG or its insurer to comply with G.áL. c.á152, §§á6,á6A, orá7, does not create a cause of action under G.áL. c.á152, §§á66,á67, nor does it require (as the plaintiff contends) application of the analysis set forth in Barrett v. Transformer Serv., Inc., 374 Mass. 704, 711-712 (1978) (New Hampshire employer whose workers' compensation insurance was limited to New Hampshire and New York could not avoid liability under G.áL. c.á152, §§á66,á67, by obtaining workers' compensation insurance covering Massachusetts employees six months after an employee had suffered injuries on the job in Massachusetts but before the injured employee had commenced suit after being informed that there was no such coverage in Massachusetts). Both G.áL. c.á152, §§á6 andá7(2), carry penalty provisions for violations of these statutory requirements.
Contrary to the plaintiff's claim, neither O'Dea v. J.A.L., Inc., 30 Mass. App. Ct. 449 (1991), nor Barrett v. Transformer Serv., Inc., supra, precludes IDG from raising the issue of lack of subject matter jurisdiction. O'Dea was tried on the basis that the employer had failed to have workers' compensation insurance in place on the date of the injury (coverage having been previously cancelled for the employer's failure to pay premiums). O'Dea v. J.A.L., Inc., supra at 450. Only after the entry of a substantial judgment against the employer did the insurance company "discover" that the policy had been cancelled because of "clerical error". Id. atá451 &án.7. Contending that the matter should have been within the exclusive jurisdiction of the DIA, the employer unsuccessfully brought a postjudgment, after-the-fact challenge to the judgment as void (a narrow and rarely applied concept) under Mass.R.Civ.P. 60(b)(4), 365 Mass. 829 (1976). Id. atá453-456. By contrast, IDG is before the court on direct appeal from the denial of its motion to dismiss or for summary judgment, which asserted its maintenance of workers' compensation insurance at all relevant times and expressly raised the issue of subject matter jurisdiction. Cf. McCracken v. Sears, Roebuck & Co., 51 Mass. App. Ct. 184, 189 (2001). Unlike the questionable employer in Barrett, IDG did not obtain its workers' compensation insurance policy only after the date of the plaintiff's injury, or attempt to make it applicable by the retroactive dating of an endorsement subsequent to the commencement of the employee's tort action. Barrett v. Transformer Serv., Inc., 374 Mass.
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