Decision  Cynthia Merlini v. Consulate General of Canada

Date:	08/07/2012
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 035748-09
Location:	Boston
Referenced Sources:	Cynthia Merlini v. Consulate General of Canada

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

LEVINE, J. The Workers’ Compensation Trust Fund (Trust Fund) appeals from a decision awarding § 34 total incapacity benefits to the employee, a United States citizen and Massachusetts resident employed by the Canadian Consulate in Boston. The Trust Fund argues that the judge’s decision is contrary to G. L. c. 152, § 65.¹ Because the judge 1) failed to adequately address the requirements of this statute; 2) erred by denying the Trust Fund the opportunity to present rebuttal testimony regarding the employee’s rights under Canadian law; and 3) failed to take judicial notice of such law, the record below was not sufficiently developed for appellate review. See Praetz v. Factory Mut’l Eng’g & Research, 7 Mass. Workers’ Comp. Rep. 45, 46-47 (1993); Richardson v. Chapin Center Genesis Health, 23 Mass. Workers’ Comp. Rep. 233, 235-236 (2009). In addition, the judge erred in not joining the Canadian Consulate as a party. We vacate the decision and recommit the case to the administrative judge for further proceedings and findings consistent with this decision.²

¹ General Laws c. 152, § 65 , provides, in relevant 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 the following compensation: . . . (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 . . . .

² The parties have not raised, and the judge did not address, the issue of whether the board has subject matter jurisdiction over the employee’s claim. The judge did state he found no merit in the Trust Fund’s “defense that the Employee claim has no standing.” (Dec. 6.) While standing is an element of subject matter jurisdiction, DaSilva v. Palladino Landscaping, 24 Mass. Workers’ Comp. Rep. 211, 214 (2010), rev’d on other grounds, 10-P-1842 (June 20, 2011)(memorandum and order pursuant to Rule 1:28). We do not understand the Trust Fund to have argued that the board has no subject matter jurisdiction to hear the employee’s claim. Of course, the question of subject matter jurisdiction cannot be waived by the parties and may be considered sua sponte, even after adjudication and on appeal. Id. We have not found any law or treaty between the United States and Canada indicating this board would not have subject matter jurisdiction over the employee’s claim. However, the proceedings upon recommittal may shed light on this dispositive issue.