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Piderit v. Siegal & Sons Investments5/30/2002
Middlesex.
October 17, 2000
Workers' Compensation Act, Claim. Employment, Termination, Retaliation.
This appeal comes to us following the allowance of a motion for summary judgment brought by the defendant, doing business as Marty's Liquors, and the ensuing dismissal of the plaintiff's claim that he was discharged unlawfully. The discharge, he claimed, violated G. L. c. 152, á75B(2), which prohibits retaliation for exercising rights under the Workers' Compensation Act. Viewing the facts alleged in the summary judgment materials in the plaintiff's favor, as we must at this stage, we take the facts to be as next stated.
The plaintiff was one of two "store managers" at Marty's Liquors in Allston. On Tuesday evening, August 1, 1995, the plaintiff felt shooting pains in his left knee while lifting kegs of beer. He mentioned the episode to co-employees. Despite a swollen knee, he continued working the remaining days of the week. At a company picnic on Sunday, August 6, he stopped playing softball due to pain in the knee. The next day, with the grudging approval of Lewis Siegal, his supervisor (and part owner), he left work before his shift ended to see a doctor at the company's health coverage provider, Harvard Community Health. The doctor advised the plaintiff to stay out of work for several days and referred him to an orthopedic specialist who, on Wednesday, August 9, said he should remain out of work for ten days. Lewis Siegal, when so advised, was irritated and told the plaintiff to call "Marty" Siegal (Lewis's father and company president). Marty said ten days was a long time, that he would have to replace the plaintiff, and asked the plaintiff to get his Allston store keys back to the store. The plaintiff understood the import of the conversation to be that he was discharged, and the judge, for purposes of ruling on the motion for summary judgment, necessarily took that to be the fact.
The plaintiff filed a claim on August 29, just over three weeks later, for benefits under the company's short term disability benefits insurance policy. The store processed the application, but the claim was rejected by the insurer. On the application form the plaintiff indicated for the first time that he intended to file a claim for workers' compensation benefits. The plaintiff filled out a claim form for such benefits on October 21, claiming total disability. The form was not filed with the Department of Industrial Accidents until December 21, after his claim for short term disability benefits had been rejected by the disability insurer. The department ultimately awarded partial disability benefits from August 12 to December 4, the final day the plaintiff claimed to have been disabled.
The basis on which the judge ordered summary judgment for the defendant was this: At the time of the plaintiff's discharge, the judge ruled, the plaintiff as matter of law had not "exercised a right afforded by [chapter 152]," as required by á75B(2). The discharge was on August 9, but no claim for workers' compensation benefits was filed with the Department of Industrial Accidents until several months later; and while it is true that á10(1) of the chapter does not permit such a claim to be filed earlier than the thirtieth day after the onset of the disability, this discharge occurred on the second day of the disability, well before the defendant was required even to file a notice of injury with the insurer or the department. See c. 152, á6. The judge ruled that merely telling an employer that one has been injured is not an exercise of a right under the statute; and the judge with some plausibility ruled that, " s a matter of statutory interpretation, á75B(2) does not preve
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