Archive for the ‘Worker’s Comp. Insurance’ Category

I must confess that the title to this post is in very poor taste. You see, this is not about an employee who made an obscene gesture; rather, it is about an employee who injured his finger working for his employer, and ultimately had it amputated. The employer rewarded the nine-fingered employee with a pink slip. The employer would not allow the employee back when he was able to return to work a few months later.

The employee sued at the Massachusetts Commission Against Discrimination, and won $50,000 in emotional distress damages, plus substantial interest (I believe that the interest more than doubled the award). The employer, represented by competent counsel, may have paid that much or more in legal fees. Because of procedural and other reasons, the employee did not recover lost wages at the MCAD; he had earlier won $67,500 in lost wages in a related Superior Court case.

Total damages chargeable to the employer are estimated to be around $170,000, plus substantial legal fees. The case is reported as MCAD v. O.K. Baker Supply Co., Lawyers Weekly No. 22-016-12. If you have trouble finding the decision, let me know and I’ll e-mail it to you. The employer was also ordered to cease and desist discriminating from any future discrimination based on disability and to conduct a training session for all of its employees.

There are two important lessons from this case. One, is that an injured worker eligible for worker’s compensation will be considered disabled for purposes of the state anti-discrimination law. This means that you must accommodate such employee, and cannot discriminate against him.

The second point is that a leave of absence can be a reasonable accommodation. How long is reasonable? I don’t know. No one knows, until the MCAD, EEOC, judge or jury tells you if you were acting reasonably or not. That may not sound fair, but that is the law. There are certain parameters that you can consider, such as the impact on your business of not filling the position with someone else. Also, employees generally are not entitled to take unlimited leave for an indefinite period of time. At some point, they must give you a time frame for return.

But each case turns on its own facts and issues, and this is a very difficult area of the law. If you have an injured or otherwise disabled employee (leave could be reasonable for any disabled employee), even one that has exceeded 12 weeks of FMLA leave, do not fire them until you fully vet the issue with competent legal counsel. Call me at 617.338.7000 if you need help with this.

And for the record, an employee who flips you the bird can likely be terminated for the action. That is, unless it’s an involuntary reflex caused by a nerve disorder, an excuse I tried to use in high school to no avail.

By Adam P. Whitney

A recent case from the Massachusetts Supreme Judicial Court shows the importance of worker’s compensation insurance, not only for your own company, but for any person or entity who does work for you. As set forth in Wentworth v. Henry C. Becker Custom Building Ltd., ___ Mass. ___ (May 23, 2011), G.L. c. 152, §18 provides that your worker’s compensation carrier will have to cover the injuries for any worker employed by any subcontractor that is not covered by worker’s compensation insurance. This is what happened to the defendant in this case, Henry C. Becker Custom Building Ltd. (“Becker”). Becker hired a subcontractor on a construction site. An explosion on the site resulted in the tragic death of the plaintiff and the serious injuries to his son, both of whom worked for the subcontractor. The subcontractor had no insurance, so Becker’s insurer had to pay. Although not reported in the case, this likely resulted in at least a back charge and increased insurance costs to Becker. In fact, insurers routinely conduct audits and can back charge companies for utilizing workers who are not covered by worker’s compensation insurance, even where there has been no injury.

In this case, Becker faced a double-whammy. Although its insurer settled with the plaintiffs, the plaintiff still brought a separate suit against Becker under the common law, arguing that, since Becker was not their employer, they were entitled to sue Becker even though they settled with Becker’s insurer. The Supreme Judicial Court agreed, and sent the case back to the trial court for adjudication of those claims. Although the plaintiff’s employer would be immune from common law suits, Becker was not the employer, even though its insurer had to cover the plaintiffs. The Court reasoned that Becker would be subject to suit even if it hired a contractor who had worker’s compensation coverage. Thus, it should not get a benefit of hiring a contractor who did not have such coverage. Ruling otherwise could actually encourage hiring subcontractors without insurance, which is the opposite of what the Legislature intended. A link to the case is attached.

By Adam P. Whitney, 617.338.7000.