Decision  Durvin Zangao v. M. B. Seafood, Inc.

Date:	02/14/2002
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 37522-99
Location:	Boston

• Employee: Durvin Zangao
• Employer: M. B. Seafood, Inc.
• Insurer: Workers’ Compensation Trust Fund

MCCARTHY, J. The appeal of an administrative judge’s decision by the Workers’ Compensation Trust Fund ("Trust Fund") presents a novel question on the interplay between certain provisions of c. 152 and the federal Longshore and Harbor Workers’ Compensation Act ("LHWCA" or "Longshore Act"). The judge awarded the claimant, who was injured while assisting the docking of a fishing boat during his employment, benefits under c. 152. The Trust Fund argues that the decision is contrary to law because the judge erred in three respects: 1) by finding that the employer was not engaged in interstate commerce; 2) by finding that the claimant was an employee under § 1(4), and not subject to the § 1(4)(f) exemption based on the provision of compensation or liability under the LHWCA;¹ and 3) by failing to apply clause (i) of § 65(2)(e), barring payment of compensation by the Trust Fund when the claimant is entitled to compensation in any other jurisdiction. We agree with the Trust Fund’s first and second assertions of error and reverse the decision as a result.²

¹ G.L. c. 152, § 1(4), defines "Employee" in relevant part as:

[E]very person in the service of another under any contract of hire, express or implied, oral or written, excepting . . . (f) persons employed by an employer engaged in interstate or foreign commerce but only so far as the laws of the United States provide for compensation or liability for their injury or death . . . .

² Given our disposition, we need not reach the question of whether § 65(2)(e)(i) applies in the circumstances of this case.