September 24, 2007

Compensable Suicide in MA

Gilbert Dube was a mechanic with a chronic back problem. He was working for National Fiber Technology LLC in Lawrence, MA, when he re-injured his back on November 7, 2001. He tried to return to work on a light-duty basis a couple of weeks later, but his employer informed him that there was no light duty available. (Red flag number one.) On December 4, he was terminated. (Red flag number 2.) On December 18, less than six weeks after the injury, Dube committed suicide. His widow filed for workers comp death and burial benefits. She prevailed at the industrial accident board. The carrier appealed, but three justices of the appeals court (McCarthy, Horan and Fabricant) found in her favor as well.

The insurer tried to argue that the termination - not the injury itself - was the cause of the suicide. Because bona fide personnel actions are usually not grounds for filing a claim, they sought a reversal. The justices concluded that the injury and termination were inextricably connected. And further, the statute prohibits claims that link a personnel action to a disability - - death is not a disability. The justices go all the way back to Chief Justice Rugg, writing in 1915, just four years after the workers comp law was passed in Massachusetts:

The single inquiry is whether in truth it did arise of out of and in the course of employment. If death ensues, it is immaterial whether that was the reasonable and likely consequence or not; the only question is whether in fact death "results from the injury.

Unanswered Questions
The Insider is left to puzzle over some issues that were glossed over in the ruling. First, why did National Fiber Technology not have any light duty? They make wigs and costumes, primarily those involving fake fur. (If you're casting a Sasquatch or a gorilla in your next play, give these folks a call. Here is a link to some samples of their work.) At least some of the work - lifting and arranging fake hair! - would be very light duty indeed.

Then there is the mystery of the quick termination. Dube was injured on November 7 and terminated barely 4 weeks later, on December 4. What was the hurry? The quick trigger on termination surely raises the specter of discrimination based upon a work-related disability. Even if the employer could not accommodate Dube (they didn't appear to try), they could have kept him on the roster, pending a more complete recovery. That would not have cost them anything and it would have provided Dube with some motivation during his recovery.

In this particular situation, everyone loses. The unfortunate Mr. Dube, first loses his job and then, confronted with the possible end of his career as a mechanic, takes his own life. His employer terminates in haste and repents at leisure. The carrier pays for the burial and provides ongoing support to the widow. In most instances, suicide is a private matter that falls outside the scope of employment. In this sad situation, suicide and employment are joined forever.

This case has important implications for MA employers. The court is saying that any suicide stemming from a work-related injury defaults to compensability under comp. The fact that a personnel action was involved is not a viable defense. The burden of proof falls to the employer and the carrier to show that the suicide was not work related. With this ruling in hand, that will be a very difficult standard to meet.

| 2 Comments

2 Comments

It is very unfortunate that professional counseling is routinely disallowed by most carriers. Had counseling been made available, the suicide may never have happened. Carriers need to start understanding that the lose of a man's career and physical health is equally as emotionally damaging.

Does Workers Compensation now become the exclusive remedy?
Can a civil suit be following? Question is more complex than it may seem.
Forget the burial benefits issue.
Does this now establish a link for civil action? Could criminal action be possible?
It will be interesting to watch the case develop.
The error here is that the company let it go this far...if would have been cheap money to pay the expense and not let it go this far! You may win the battle but lose the war and here they lost both

Subscribe

Submit your email to be notified when this site is updated

Need help with your workers' comp program?

Monthly Archives

About this Entry

This page contains a single entry by Jon Coppelman published on September 24, 2007 2:51 PM.

Health Wonk Review - go see Joe was the previous entry in this blog.

NY Reforms: Chaos Postponed? is the next entry in this blog.

Find recent content on the main index or look in the archives to find all content.

OpenID accepted here Learn more about OpenID