Workers Comp Corner: Injured over there; paying over here?
Employers be warned, this might sound strange.
An employer can be responsible for paying wages to an employee who was injured on the job somewhere else.
Consider this: Rosie gets hurt on the job. She receives treatment and after a while, her condition improves. While receiving physical therapy Rosie gets call from a friend who tells her that her dream job is available at another company. She applies for, is offered and accepts employment for the new company. While working at the latest job, Rosie has physical therapy appointments and loses time from work. Does Rosie get paid for the time missed from work? If she does, who pays her?
The answers to those questions may be surprising.
Vermont law states that, “an employer shall not withhold wages from an employee for an employee’s absence from work for treatment of a work injury, or to attend a medical examination related to a work injury.” 21 V.S.A. § 640(c). So, Rosie is entitled to be paid for the time missed from work to attend a medical appointment for a worker’s compensation injury. Her employer cannot withhold her wages.
The next question becomes who is responsible for paying Rosie. Is payment of the wages the responsibility of the original employer, the current employer, or the workers’ compensation carrier?
The Department of Labor ruled on March 17 of this year that a workers’ compensation insurance carrier has no obligation to pay wages to an employee when that employee misses work to attend a medical appointment for treatment of a work injury. In Hathaway v. Griswold, the Department concluded that the term “employer” in this context does not include the insurance carrier as the statute confers on the carrier an obligation to pay “compensation,” or “benefits” and those terms are not synonymous with “wages.”
If the employer is responsible but the employee has changed employers, which one pays the wages that the statute mandates must be paid?
The department decision in Hathaway also answers this question by concluding that the current employer of a worker who has suffered a work injury not withhold the employee’s wages while attending a medical appointment for treatment of a work related injury. The commissioner concluded that this is true whether the worker was injured at the current place of work, or at an earlier workplace.
The language of the law was very important to The Department and the order found a distinction between the uses of the term “an employer” versus the term “the employer” concluding that the, “indefinite article ‘a’ connotes a more general reference.” The commissioner concluded the specific language was a choice by the Legislature of an intent to broaden the prohibition against wage withholding to encompass not only the employer where the injury occurred but any future employer.
If an employee tells the employer that they attended a medical appointment for a work-related injury, the current employer may not withhold wages. However, the employer should consider how to deal with these situations:
The employer may be entitled to ask for documentation to support the claim that the appointment was due to a work injury.
The employer might also try to request that the employee schedule the appointments outside of work hours.
However, of this there is no doubt: An employer can be responsible for paying wages to an employee who was injured on the job somewhere else.
John W. Valente is an attorney with Ryan Smith & Carbine in Rutland. He is the author of “Understanding Workers’ Compensation: Managing Workplace Injuries and Lowering Costs.”MORE IN Central Vermont
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