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August 20 2007

Twice injured workers in double trouble

Eastport fisherman reinjured while under care of workers' comp one of many with few options

PETER WALSH
The Telegram

Ralph Payne's story is typical of many who run into double trouble while under the care of the Workplace Health Safety and Compensation Commission (WHSCC).

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 injury.

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" rehabilitation program.

Payne's injury was now serious enough that WHSCC moved him onto long-term benefits of $600 every two weeks.

"My 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."

Payne, 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 Payne representation.

"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 e-mail.

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 pain.

[email protected]

http://www.thetelegram.com/index.cfm?sid=55565&sc=79

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