New England Survey Systems, Inc. v. Department of Industrial Accidents

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15-P-331 Appeals Court

NEW ENGLAND SURVEY SYSTEMS, INC. vs. DEPARTMENT OF INDUSTRIAL

ACCIDENTS.

No. 15-P-331.

Suffolk. December 8, 2015. - June 30, 2016.

Present: Grainger, Hanlon, & Agnes, JJ.

Workers' Compensation Act, Failure to obtain insurance,

Cancellation of insurance. Department of Industrial

Accidents. Statute, Construction. Due Process of Law,

Administrative hearing. Administrative Law, Judicial

review.

Civil action commenced in the Superior Court Department on

April 26, 2013.

The case was heard by Frances A. McIntyre, J., on a motion

for judgment on the pleadings.

Timothy K. Cutler for the plaintiff.

Douglas S. Martland, Assistant Attorney General, for

Department of Industrial Accidents.

AGNES, J. The Workers' Compensation Act, G. L. c. 152

(act), provides that whenever the Commissioner of the Department

of Industrial Accidents (the department) determines that an

2

employer has not provided the insurance required by law,1 "a stop

work order shall be served on said employer, requiring the

cessation of all business operations at the place of employment

or job site." G. L. c. 152, § 25C(1), as amended through St.

1989, c. 341, § 82. The stop work order takes effect upon

service on the employer, and remains in effect until the

employer satisfies the commissioner that it has obtained the

required insurance and paid the $100 per day civil penalty for

each day it was in violation of the law, beginning with the date

of service of the order. § 25C(1) of the act. Section 25C also

provides for additional civil and criminal penalties against

employers who do not obtain the insurance required by law. See

G. L. c. 152, § 25C(5)-(6), (9)-(11). Subsection (10) of § 25C

sets forth one of the additional civil penalties that an

employer who fails to obtain the insurance required by the act

may face. It reads as follows:

"(10) In addition to being subject to the civil penalties

herein provided, an employer who fails to provide for

insurance or self insurance as required by this chapter or

knowingly misclassifies employees, to avoid higher premium

rates, will be immediately debarred from bidding or

participating in any state or municipal funded contracts

for a period of three years and shall when applicable be

subject to penalties provided for in section fourteen"

(emphasis supplied).2

1

See G. L. c. 152, § 25A.

2

Subsection (10) was added to § 25C as part of the

Legislature's 1991 reforms of the act. St. 1991, c. 398, § 45B.

3

The issue before us, which is one of first impression, is

whether the phrase "to avoid higher premium rates," as it

appears in subsection (10), modifies the two preceding clauses

("who fails to provide for insurance or self insurance as

required by this chapter or knowingly misclassifies employees")

or modifies only the immediately preceding clause ("knowingly

misclassifies employees").

The plaintiff, New England Survey Systems, Inc. (NESS),

contends that the placement of the comma after the word

"employees" means that the phrase "to avoid higher premium

rates," modifies the two preceding clauses with the effect that

an employer like NESS -- against whom a stop work order issued

due to its failure to have the insurance required by law, but

who was not shown to have acted with the intent to avoid higher

insurance premiums -- is not subject to automatic debarment. In

essence, NESS claims that prior to implementing the penalty of

debarment, the department was required to prove that NESS's

admitted failure to provide insurance was motivated by a desire

to avoid higher premium rates. The department, on the other

hand, asserts that under § 25C(10), debarment occurs whenever a

stop work order issues against an employer who failed to obtain

or provide the required insurance, regardless of the employer's

intent or motivation. While we agree with NESS that the penalty

4

of debarment for three years is a severe sanction, we do not

agree with its reading of subsection (10). Instead, we conclude

that the words used by the Legislature express its intention

that the debarment provision contained in subsection (10)

applies when an employer fails to obtain or provide workers'

compensation insurance, without the need to establish that this

was the result of the employer's intent to avoid higher

insurance premiums. Accordingly, we affirm the ruling made by

the Superior Court judge which, in turn, is consistent with the

interpretation followed by the department.3

Background. Stop work order and debarment. On December

28, 2012, an investigator with the department was working in the

Brookline area and came upon NESS's place of business. The

investigator queried the Workers' Compensation Rating and

Inspection Bureau's computer system and discovered that NESS had

a canceled workers' compensation insurance policy. The

3

Based on the view we take that G. L. c. 152, § 25C(10),

requires the penalty of debarment for three years to take effect

in the event a stop work order issues, it is unnecessary to

consider the evidence offered by NESS that its workers'

compensation insurance policy lapsed when its insurance broker

failed to notify NESS that it was time to renew the policy, and

other evidence about the economic consequences that debarment

will have on its business and its employees. It should be noted

that an insurer providing voluntary workers' compensation

insurance is required to serve notice upon the insured in

accordance with G. L. c. 175, § 187C, before it may cancel the

policy. See Pillman's Case, 69 Mass. App. Ct. 178, 181 & n.6

(2007).

5

investigator issued NESS a stop work order pursuant to G. L.

c. 152, § 25C. NESS's president, John Roberge, who maintained

he was unaware that the policy had lapsed, contacted its

insurance provider that day, and the provider reinstated

coverage immediately.4 The department nevertheless maintained

that debarment was automatic and nondiscretionary under

§ 25C(10).

Appeal history. NESS filed an administrative appeal from

the debarment order.5 The department held an appeal hearing on

January 16, 2013, and issued a written decision upholding the

stop work order and debarment penalty on March 29, 2013. NESS

filed a further appeal in the Superior Court under G. L. c. 30A,

§ 14. NESS moved for judgment on the pleadings, and the

department filed an opposition. On July 15, 2014, after

4

Based on the reading of the statute by the department as

well as the Superior Court, and the view we take, the reason why

NESS's policy of insurance was cancelled is not relevant. NESS

does not deny that it lacked insurance coverage between April 9,

2012, and December 28, 2012. Although NESS acted promptly and

obtained workers' compensation insurance coverage the same day

the stop work order was issued, there is no evidence in the

record that its policy provided retroactive coverage for the

more than eight-month period during which NESS's workers'

compensation insurance policy remained lapsed.

5

NESS first filed an appeal of the stop work order,

withdrew the appeal request, and then withdrew the request for

withdrawal. In any case, the appeal proceeded with a hearing,

and a final agency decision issued upholding both the stop work

order and the debarment. Before us, NESS apparently challenges

only the penalty of debarment and not the initial stop work

order.

6

hearing, a Superior Court judge issued a memorandum and order

affirming the department's decision. Judgment entered for the

department on October 20, 2014, and this appeal followed.

Discussion. a. Applicable principles of interpretation.

The interpretation of § 25C(10) is a matter of law, and we

exercise de novo review of the department's interpretation of

that statute. See Protective Life Ins. Co. v. Sullivan, 425

Mass. 615, 618 (1997). The words used by the Legislature in a

statute, viewed in their statutory context and in the light of

the purpose of the legislation, are the best guide to

legislative intent. See Hanlon v. Rollins, 286 Mass. 444, 447

(1934); Hoffman v. Howmedica, Inc., 373 Mass. 32, 37 (1977);

Bronstein v. Prudential Ins. Co. of America, 390 Mass. 701, 704

(1984). This is in keeping with guidance from the Legislature

on how statutes should be interpreted. See G. L. c. 4, § 6,

Third, set out in the margin.6 When statutory language yields a

plain meaning, arguments that its application in a particular

case will cause a hardship or lead to an inequity should be

6

General Laws c. 4, § 6, Third, provides:

"Words and phrases shall be construed according to the

common and approved usage of the language; but technical

words and phrases and such others as may have acquired a

peculiar and appropriate meaning in law shall be construed

and understood according to such meaning."

7

addressed to the Legislature. See Larkin v. Charlestown Sav.

Bank, 7 Mass. App. Ct. 178, 183-184 & n.9 (1979).

The Superior Court judge recognized that the interpretation

of § 25C(10) urged by NESS was illogical in that an employer who

is not self-insured and has not provided workers' compensation

insurance coverage, and therefore has paid no insurance premium,

would avoid the penalty of debarment, while an employer who did

have insurance, but misclassified one or more employees in order

to pay a lower insurance premium, would face the penalty of

debarment.7 The natural and logical reading of the words used by

the Legislature in § 25C(10) is that an employer whose employees

are not covered by workers' compensation insurance and who is

not self-insured is subject to automatic debarment. A

consideration of the purpose and intent of the Legislature in

enacting G. L. c. 152, and in particular, the amendments adopted

in 1991, buttresses this interpretation of § 25C(10). See

Lighthouse Masonry, Inc. v. Division of Administrative Law

Appeals, 466 Mass. 692, 701 n.17 (2013).

b. The Workers' Compensation Act and the 1987-1991

reforms. General Laws c. 152, enacted in 1911, was initially an

"elective" law that allowed employers in the Commonwealth to opt

7

The judge's view is shared by the department. See

Protective Life Ins. Co. v. Sullivan, 425 Mass. at 618 ("[W]e

grant substantial deference to an interpretation of a statute by

the administrative agency charged with its administration").

8

into its provisions by securing insurance to cover workplace

injuries incurred by employees. St. 1911, c. 751. Its

provisions were made compulsory for most employers in 1943, see

St. 1943, c. 529, and remain so today.8 Our courts have long

recognized that the act is a "humanitarian measure" designed to

financially protect injured workers by providing remedies more

expansive and predictable than those available via tort at

common law. See LaClair v. Silberline Mfg. Co., 379 Mass. 21,

27 (1979). "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.'" Neff v.

Commissioner of the Dept. of Industrial Accs., 421 Mass. 70, 73

(1995), quoting from Young v. Duncan, 218 Mass. 346, 349 (1914).

The fundamental aim of public policy in the area of workers'

compensation is to provide relief to injured workers and their

families and remedy the deprivation of wages that results from

their injuries.9

8

"Certain workers are not defined as employees for the

purposes of the . . . [a]ct. See G. L. c. 152, § 1(4). Special

provisions also apply to public employers. See G. L. c. 152, §§

25B, 69-75." Awuah v. Coverall N. America, Inc., 460 Mass. 484,

494 n.21 (2011). NESS makes no argument that it is not required

to provide workers' compensation coverage for its employees.

9

See Nason, Koziol & Wall, Workers' Compensation § 2.12, at

48 (3d ed. 2003) ("Amendments to the Workers' Compensation Act

should be broadly construed to enlarge the rights of employees

and liberalize its interpretation"). The Supreme Judicial Court

has noted that a broad interpretation of the act is of the

9

Section 25C of the act, which provides for the sanctions

levied against the employer in this case, was adopted in 1943,

when the provisions of the act went from optional to compulsory

for most employers. See St. 1943, c. 529, § 7. To enforce the

compulsory insurance requirement, § 25C at first provided for

punishment of an employer by a fine up to $500, or by

imprisonment for up to one year, or both for its failure to

provide the same.10

The act saw substantial changes in 1985, following hearings

conducted by a Governor's Task Force convened to address

problems with the funding, administration, and scope of the

workers' compensation system. See St. 1985, c. 572; St. 1986,

c. 662; St. 1987, c. 691. Changes were made to the department's

infrastructure and funding, along with benefit entitlements and

procedural rules.11 In 1987, the sanction was enhanced

substantially by St. 1987, c. 691, § 10, which gave the

department the power to issue a stop work order requiring a

utmost importance, because the act's exclusivity provision

replaces an employee's ability to seek relief through common-law

tort actions. Walker's Case, 443 Mass. 157, 161 (2004), S.C.,

453 Mass. 358 (2009).

10

See St. 1951, c. 689; St. 1953, c. 330.

11

See Nason, Koziol & Wall, Workers' Compensation § 2.6 (3d

ed. 2003) (highlighting 1985 reforms). Relevant here, in 1986

the § 25C fine for failure to provide workers' compensation

insurance was tripled, from $500 to $1,500. St. 1986, c. 662,

§ 20.

10

noncomplying employer to immediately cease operations. G. L.

c. 152, § 25C(1)-(4).

The 1985 reforms were not effective in controlling the

costs of workers' compensation insurance premiums, and rates

continued to rise sharply in the years to follow. Nason, Koziol

& Wall, Workers' Compensation § 2.8 (3d ed. 2003). These

ongoing concerns culminated in an even more comprehensive wave

of reform and the passage in 1991 of "An Act Relative to Fair

and Effective Compensation of Injured Workers," St. 1991,

c. 398. The reforms enacted in 1991 "acknowledged the premise

that workplace injuries were a factor in the costs of doing

business, and recognized that this cost factor had to be reduced

in order to stimulate business growth and employment

opportunities within the Commonwealth." Nason, Koziol & Wall,

Workers' Compensation § 2.8, at 35 (3d ed. 2003). During the

years leading up to the 1991 reforms, annual reports of the

Workers' Compensation Advisory Council noted concern over the

number of employers within the Commonwealth operating illegally

without workers' compensation insurance. In fiscal year 1988,

the Advisory Council recommended revising the act's enforcement

provisions to strengthen sanctions against uninsured employers.12

12

Workers' Compensation Advisory Council, Fiscal Year 1988

Annual Report 11-12, http://www.mass.gov/lwd/docs/wcac/annual-

reports/ar-1988-v1.pdf [https://perma.cc/L35X-4C5C].

11

Its 1990 report noted that such "system abuse" increases costs

for law-abiding employers.13 In 1991 testimony before the

Legislature's Joint Commerce and Labor Committee, Joseph

Faherty, chairman of the Advisory Council, attested to the need

for legislative reform to curtail this sort of abuse in order to

cut costs of workers' compensation and keep the State

competitive: "We fear that a failure to implement fair

insurance rates will encourage more business entities to

unlawfully operate without insurance and further erode the

commonwealth's competitive edge. The livelihoods of employers

and employees depend on the ability to bring insurance costs

under control."14,15

As part of the 1991 reforms, the Legislature added

subsection (10) to G. L. c. 152, § 25C, which provides that

noncompliant employers "will be immediately debarred from

13

Workers' Compensation Advisory Council, Fiscal Year 1990

Annual Report 69, http://www.mass.gov/lwd/docs/wcac/annual-

reports/ar-1990.pdf [https://perma.cc/3WY4-GYSL].

14

Workers' Compensation Advisory Council, Fiscal Year 1992

Annual Report Appendix G,

http://www.mass.gov/lwd/docs/wcac/annual-reports/ar-1992.pdf

[https://perma.cc/KV9J-QD55].

15

That same year, the Advisory Council also suggested that

the department consider publicizing a list of employers to whom

stop work orders had been issued in an effort to reduce

noncompliance with the act. Workers' Compensation Advisory

Council, Fiscal Year 1991 Annual Report 113,

http://www.mass.gov/lwd/docs/wcac/annual-reports/ar-1991.pdf

[https://perma.cc/AG8W-GQNE].

12

bidding or participating in any state or municipal funded

contracts for a period of three years[.]" St. 1991, c. 398,

§ 45B. This enforcement mechanism was provided in addition to

the fines, stop work orders, and other penalties that already

existed in § 25C(1)-(8) of the act. The only question before us

is whether the penalty of debarment is automatic in the case of

a failure to comply with § 25C(10). Given the principle that

the act is to be interpreted broadly for the protection of

workers, and in view of the historical development of c. 152,

especially the evidence that the 1985 reforms were not as

successful in reducing the cost of insurance as had been hoped,

we conclude the Legislature intended that the words it used in

St. 1991 in drafting subsection (10) should be given their

natural meaning such that an employer is subject to the penalty

of debarment once a stop work order has issued for failure to

provide insurance coverage.16

16

The Workers' Compensation Advisory Council, in annual

reports between 1996 and 2002, repeatedly noted its concern that

the stop work order penalty and fines were "not sufficiently

punitive to deter employers from violating the mandate [to

provide insurance coverage.]" Workers Compensation Advisory

Council, Fiscal Year 1996 Annual Report 121,

http://www.mass.gov/lwd/docs/wcac/annual-reports/ar-1996.pdf

[https://perma.cc/HWC5-C6TJ]; Fiscal Year 1997 Annual Report 7,

http://www.mass.gov/lwd/docs/wcac/annual-reports/ar-1997.pdf

[https://perma.cc/AAN7-UGJR]; Fiscal Year 1998 Annual Report 10,

http://www.mass.gov/lwd/docs/wcac/annual-reports/ar-1998.pdf

[https://perma.cc/KL4W-TV3H]; Fiscal Year 1999 Annual Report 9,

http://www.mass.gov/lwd/docs/wcac/annual-reports/ar-1999.pdf

[https://perma.cc/JF6P-L4F6]; Fiscal Year 2000 Annual Report 10,

13

The legislative history recounted above strongly suggests

that the Legislature added the penalty of debarment to the

statutory sanctions for noncompliance with the insurance

requirements of the act in an effort to compel employers to

comply with their obligations. NESS argues that the placement

of a single comma in the statute is outcome-determinative based

on an interpretive aid known as the "last antecedent" rule.17 We

disagree. First, when the words used by the Legislature have a

plain meaning and achieve a logical and workable result, we do

not turn to extrinsic interpretive aids such as legislative

history, dictionaries, or grammatical guidelines. See, e.g.,

Foss v. Commonwealth, 437 Mass. 584, 587 (2002). Second, when

the intent of the Legislature is not evident based solely on the

words of a statute, extrinsic aids may be helpful but they do

http://www.mass.gov/lwd/docs/wcac/annual-reports/ar-2000.pdf

[https://perma.cc/5UTA-TRQ9]; Fiscal Year 2001 Annual Report 9,

http://www.mass.gov/lwd/docs/wcac/annual-reports/ar-2001.pdf

[https://perma.cc/GDT6-Q99A]; Fiscal Year 2002 Annual Report 11,

http://www.mass.gov/lwd/docs/wcac/annual-reports/ar-2002.pdf

[https://perma.cc/Y3SK-DZA5].

17

The last antecedent rule provides first that a modifying

clause is confined to the phrase that immediately precedes it

and not to the phrases appearing earlier. Hopkins v. Hopkins,

287 Mass. 542, 547 (1934). However, a comma separating the

modifying clause from its antecedent(s) is some evidence that

the modifier is meant to apply to all the antecedents, instead

of only the immediate antecedent. Bednark v. Catania

Hospitality Group, Inc., 78 Mass. App. Ct. 806, 813 n.17 (2011).

See 2A Singer & Singer, Sutherland Statutory Construction

§ 47:33 (7th ed. rev. 2014).

14

not supply hard and fast rules. The last antecedent rule is not

always a certain guide. See, e.g., Selectmen of Topsfield v.

State Racing Commn., 324 Mass. 309, 312 (1949); Globe Newspaper

Co. v. Boston Retirement Bd., 388 Mass. 427, 432 (1983).18 In

particular, we do not apply the last antecedent rule when "there

is something in the subject matter or dominant purpose [of the

statute] which requires a different interpretation." Hopkins v.

Hopkins, 287 Mass. 542, 547 (1934), and cases cited.

c. Consideration of the act as a whole. "The legislative

intent is to be ascertained from the statute as a whole, giving

to every section, clause and word such force and effect as are

reasonably practical to the end that . . . the statute will

constitute a consistent and harmonious whole, capable of

producing a rational result consonant with common sense and

sound judgment." Vining Disposal Serv. v. Board of Selectmen of

Westford, 416 Mass. 35, 38 (1993), quoting from Haines v. Town

Manager of Mansfield, 320 Mass. 140, 142 (1946).

Of relevance here, § 25C(9)(a) of the act was inserted by

the same amendment that inserted § 25C(10), see St. 1991,

18

See also DiFiore v. American Airlines, Inc., 454 Mass.

486, 495-496 (2009), and cases cited ("[W]e do not adopt a

statutory interpretation derived from an analysis of punctuation

that conflicts with principles of statutory construction"). See

generally 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 (1949-1950).

15

c. 398, §§ 45A and 45B, and should be interpreted in harmony

with § 25C(10). Section 25C(9)(a) creates a cause of action for

a losing contract bidder against a person who is awarded a

public contract by competitive bid "because of cost advantages

achieved by violating the provisions of section twenty-five A or

section twenty-five C of this chapter or by the deliberate

misclassification of employees for the purpose of avoiding full

payment of workers' compensation insurance premiums" (emphasis

supplied). Subsection (9)(a) thus permits a civil action to be

brought against a person who obtains a public contract

dishonestly by either (1) violating § 25A or § 25C; or (2)

deliberately misclassifying employees in order to avoid full

payment of premiums. This supports the view that the debarment

penalty in § 25C(10) was similarly meant to punish either the

failure to provide insurance or the misclassification of

employees to avoid higher insurance premiums. In both

subsections (9)(a) and (10), only the misclassification prong

requires that the action of the employer was undertaken to

further the goal of avoiding payment of higher premiums.

Citing Awuah v. Coverall N. America, Inc., 460 Mass. 484,

495 (2011), NESS argues, in effect, that the distinction drawn

by the Legislature in § 25C(10) is artificial because an

employer who misclassifies an employee fails to pay the required

premium no less than the employer who fails to pay any insurance

16

premium at all. However, we note that the passage in Awuah

cited by NESS cites to language in G. L. c. 152, § 14(3), which

is consistent with our reading of § 25C(10) of the act. That

language provides, in pertinent part, that an "employer who

knowingly misclassifies employees . . . for the purpose of

avoiding full payment of insurance premiums . . . shall be

punished" (emphasis supplied). G. L. c. 152, § 14(3), inserted

by St. 1991, c. 398, § 38. Moreover, it is not inconsistent

with the court's analysis in Awuah to conclude, as we do in this

case, that in enacting § 25C(10), the Legislature recognized a

distinction between the misclassification of an employee, which

may or may not be done with an intent to lower the employer's

premium rate, and the simple failure to provide any insurance,

even if no misclassification has occurred. In essence, it is a

simple matter to establish whether an employer does or does not

have insurance coverage for its employees. In contrast, where

there is a misclassification of employees (which could be

deliberate, or the result of mistake or inadvertence), in order

to be fair to the employer, punishment should not be imposed

unless it is first determined that the misclassification was

both knowing and done with the intention of avoiding higher

insurance premiums.

In sum, we hold that the penalty of debarment is triggered

automatically in a case such as this, without the need to

17

establish that the employer acted intentionally or wilfully, or

that the employer sought to avoid payment of higher insurance

premium rates. This result is consistent with the act's

purpose, legislative history, closely related provisions, and

its plain language.19

d. Remaining arguments. NESS also contends that G. L.

c. 152, § 25C(10), as applied, violates its constitutional

rights to due process of law under the Constitution of the

United States and the Massachusetts Constitution because it does

not afford the employer an opportunity to present evidence that

the cancellation of its insurance policy was not the result of

intentional conduct. "The fundamental requirement of due

process is notice and the opportunity to be heard 'at a

meaningful time and in a meaningful manner.'" Matter of Angela,

445 Mass. 55, 62 (2005), quoting from Armstrong v. Manzo, 380

U.S. 545, 552 (1965). The record indicates that NESS was not

only aware that it was subject to a fine as a result of the stop

work order, but it was also aware that it was debarred from

bidding on or participating in any State or municipal contract

19

The Legislature has established a separate and distinct

system for the debarment of certain contractors from

participating in bidding on public construction contracts.

G. L. c. 29, § 29F. See Fordyce v. Hanover, 457 Mass. 248, 261

(2010). The fact that the debarment of contractors is a matter

of discretion under § 29F, a provision addressing an entirely

different problem, has no bearing on the questions before us.

18

for a period of three years. NESS was given an opportunity to

challenge the validity of the stop work order at an evidentiary

hearing. NESS participated in that hearing and submitted

evidence. NESS's reliance on Old Dominion Dairy Prods., Inc. v.

Secretary of Defense, 631 F.2d 953 (D.C. Cir. 1980), is

misplaced because the result in Old Dominion turned on the

government's failure to disclose to a contract bidder in a

timely manner an adverse determination that the bidder lacked

integrity, which resulted in the contractor losing a bid before

it had an opportunity to dispute the adverse determination. In

the present case, the only factual predicate to the imposition

of the penalty of debarment was the validity of the stop work

order, which NESS does not contest.20

20

We do not address an alternative argument, raised by NESS

for the first time on appeal to the Superior Court, that G. L.

c. 152, § 25C(10), is unconstitutional because the remedy of

debarment affects only employers who bid on public contracts,

thus depriving NESS of the equal protection of the laws. See

Albert v. Municipal Ct. of Boston, 388 Mass. 491, 493 (1983) ("A

party is not entitled to raise arguments on appeal that [it]

could have raised, but did not raise, before the administrative

agency"). Cf. Gill v. Board of Registration of Psychologists,

399 Mass. 724, 727 (1987) (in the interest of preserving the

integrity of the administrative and judicial processes, the

court declined to consider issue raised on appeal concerning

administrative board's jurisdiction where the board had not had

the opportunity to address it).

We also note that NESS's reliance on In re Environmental

Source Corp., 431 B.R. 315 (Bankr. D. Mass. 2010) is misplaced.

There, the Bankruptcy Court limited its constitutional analysis

to the preemption issue that arose when a contractor, whose

business involved public sector contracting, failed to pay a

19

e. Chapter 30A review. This court, like the Superior

Court, reviews the department's decision "according to the

standards set forth in G. L. c. 30A, § 14(7), giving 'due weight

to the experience, technical competence, and specialized

knowledge of the agency, as well as to the discretionary

authority conferred upon it.'" Athol Daily News v. Board of

Review of the Div. of Employment & Training, 439 Mass. 171, 174

(2003). We may set aside the department's decision only if it

is unsupported by substantial evidence, is arbitrary or

capricious, constitutes an abuse of discretion, or is not in

accordance with law. G. L. c. 30A, § 14(7)(a)-(g). See, e.g.,

Coverall N. America, Inc. v. Commissioner of the Div. of

Unemployment Assistance, 447 Mass. 852, 857 (2006).

NESS makes no argument that it did not, in fact, fail to

maintain workers' compensation insurance for a period of eight

months. The lack of coverage is undisputed on this record.

Because we hold that the department was not required to prove

prebankruptcy petition debt (namely, its workers' compensation

insurance premium) and was debarred. Debarment prevented the

business from earning income that would allow it to emerge from

bankruptcy. The court reasoned that to apply § 25C(10) in such

a case would violate the supremacy clause of the United States

Constitution, Art. VI, because it interfered with the purpose

and policy of Chapter 11 of the Bankruptcy Code, which

"include[s] the preservation and rehabilitation of financially

distressed businesses." 431 B.R. at 322. Insofar as

Environmental Source Corp. turns on the disproportionate impact

of § 25C(10) on businesses that operate in the public sector,

its reasoning is limited to the circumstances of a debtor in

bankruptcy.

20

anything more than the fact that NESS lacked coverage and that a

stop work order was issued, and NESS does not contend that the

department failed to do so, there is no basis to disturb the

department's decision.

Judgment affirmed.