Decision  Margaret Murphy v. William C. and Zu Cowperthwaite

Date:	06/02/2004
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 051145-01
Location:	Boston

• Employee: Margaret Murphy
• Employer: William C. and Zu Cowperthwaite
• Insurer: Workers' Compensation Trust Fund

COSTIGAN, J. The claimant, the Workers' Compensation Trust Fund and the uninsured employer,¹ all appeal from a decision finding that the claimant was an employee, within the meaning of G. L. c. 152, § 1(4), and awarding her a closed period of § 34 temporary total incapacity benefits for a slip and fall injury that occurred while she was working in a full time child care position for the Cowperthwaites. We summarily affirm the decision as to the claimant's appeal, which challenges the judge's extent of disability and earning capacity findings. The Trust Fund's and the employer's appeals are based on the assertion that the judge erred in finding that the claimant was indeed an "employee" within the meaning of G. L. c. 152, § 1(4). The Fund and the Cowperthwaites argue that 1) the claimant was not a domestic servant, and 2) even if she was a domestic servant, she was excluded from coverage under the act as one "whose employment [was] not in the usual course of the trade, business, profession or occupation of [her] employer . . . ." Id. We disagree with their interpretation of the relevant statutory provisions, and affirm the decision.

 

 

 

¹ General Laws c. 152, § 65(2), provides in pertinent part:

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. . . .

Section 65(8) further provides:

If the trust fund pays compensation to a claimant pursuant to clause (e) of subsection (2), it may seek recovery from the uninsured employer for an amount equal to the amount paid on behalf of the claimant under this chapter, plus any necessary and reasonable attorney fees. Any action by the trust fund to seek recovery from the uninsured employer shall be commenced within twenty years of the claimant's filing a claim for benefits under this chapter against the trust fund.

The uninsured employer was joined to the proceeding upon the Trust Fund's motion, pursuant to 452 Code Mass. Regs. § 1.20. (Dec. 2.)