Eastport fisherman reinjured while under care of workers'
comp one of many with few options
PETER WALSH The
Ralph Payne's story is typical of many who run into double
trouble while under the care of the Workplace Health Safety and Compensation
Injured workers don't have the right to sue for
pain, suffering or lost wages while they collect benefits. Injured worker
advocates do not dispute this. However, they do criticize the WHSCC in cases
where a worker is injured while undergoing treatment for the first
Reinjured - also known as secondary injury - workers have few
options to win back potential lost wages, even if they get hurt while following
mandatory recovery programs linked to their benefits.
In June 2002,
Payne, a fisherman for 23 years, felt a searing pain in his shoulder as he
heaved a lobster pot from his boat. He received workers' compensation benefits
and underwent surgery to repair his rotator cuff. He still suffers from atrophy
in his tricep muscle. Two years later, while still receiving benefits, Payne
says he re-injured his shoulder while lifting a 20-pound weight. The lifting
was part of his therapy under what the WHSCC calls a "work hardening"
Payne's injury was now serious enough that
WHSCC moved him onto long-term benefits of $600 every two weeks.
job would have been a higher income than what I'm getting now. I loved my job.
And I did what I was told because I wanted to go back to work."
48, named the WHSCC as a defendant in a court hearing to attempt to recover
lost wages. However, the case didn't get off the ground. Supreme Court Justice
Wayne Dymond said Payne took too long to start his court case and a two-year
stature of limitations had expired.
Two weeks ago, Legal Aid denied
"Basically, it's mostly over." Payne said
Thursday from his home in Eastport.
Trish Dodd, an advocate for injured
workers, said Payne's case is common.
"Over the years, I've had
hundreds of people say to me, 'I went to this program and I got worse.' If it
weren't for the secondary injury ... (Payne) may have gone out for some other
type of work, but it's just taken away any chance that he had of moving forward
in his life."
Dodd wrote the WHSCC about Payne's case. Ann Martin, the
director of investigations, replied in an e-mail obtained by The Telegram.
Martin wrote that the commission can change a worker's benefits if there is a
secondary injury, but suing hospitals and clinics for lost wages is not allowed
under WHSCC regulations.
"That hospital and that clinic are immune from
civil suit with respect to the secondary injuries," Martin wrote in her
WHSCC spokeswoman Lana Collins questioned Dodd's claim that
there are hundreds of cases similar to Payne's. Collins said if there is a
secondary injury the commission could sue a hospital or clinic. However, any
money won in court could be claimed by the WHSCC.
In some cases, money
could pass to the worker after the commission recovered its cost. However,
Collins could not provide an example where it had.
Dodd and Payne were
not aware that the commission was able to sue over secondary injuries. They
think the injured worker should have that right.
"This is wrong and
it's cruel," said Payne, who still takes medication everyday for his chronic