Decision  Cynthia L. Merlini v. Consulate General of Canada

Date:	04/09/2015
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 035748-09
Location:	Boston

• Employee: Cynthia L. Merlini
• Employer: Consulate General of Canada
• Insurer: Workers’ Compensation Trust Fund

KOZIOL, J. The employee, Cynthia Merlini, is a United States citizen and Massachusetts resident who sustained an industrial injury while working as an administrative assistant in the Boston office of the Consulate General of Canada. The Workers’ Compensation Trust Fund (WCTF) appeals from the judge’s decision on recommittal, ordering it to pay the employee § 34 temporary total incapacity benefits, followed by § 34A permanent and total incapacity benefits from January 23, 2012, and continuing. (Dec. II, 20.) ² In his first decision, the judge ordered the WCTF to pay the employee weekly incapacity and medical benefits under the Act. However, in doing so, he failed to make findings addressing the statutory requirements of § 65(2)(e).3 Merlini v. Consulate General of Canada, 26 Mass. Workers’ Comp. Rep. 195, 203 (2012), (Merlini I). Pursuant to that statutory authority, the WCTF is obligated to pay an injured worker the benefits set forth in chapter 152 only where the employer is subject to the personal jurisdiction of the commonwealth and is uninsured in violation of this chapter. In addition, the claimant must not be entitled to benefits in any other jurisdiction. We vacated the judge’s decision and recommitted the case with directives to 1) adequately address the requirements of § 65(2)(e); 2) allow the Trust Fund the opportunity to present rebuttal testimony regarding the employee’s rights under Canadian law; and 3) take judicial notice of such law, in order to sufficiently develop the record for appellate review.

¹ Government of Canada.

²  We refer to the judge’s June 28, 2011 decision as Dec. I, and his September 17, 2013 decision as Dec. II. On recommittal, testimony was taken over the course of three days, December 11, 2012, January 18, 2013, and February 20, 2013. Hereinafter, we refer to the transcripts of those proceedings as Tr. I, Tr. II, and Tr. III, respectively. We also take judicial notice of the documents in the board file. Rizzo v. M.B.T.A., 16 Mass. Workers’ Comp. Rep. 160, 161 n. 3 (2002).

³  General Laws, c. 152, § 65 , provides, in pertinent part:

(2) There is hereby established a trust fund in the state treasury, known as the Workers’ Compensation Trust Fund, the proceeds of which shall be used to pay or reimburse . . . (e) payment of benefits resulting from approved claims against employers subject to the personal jurisdiction of the commonwealth who are uninsured in violation of this chapter; provided, however, that (i) the claimant is not entitled to workers’ compensation benefits in any other jurisdiction. . . .