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Piderit v. Siegal & Sons Investments5/30/2002
nt actions against workers on account of their injuries, but only protects them from retaliation for having 'exercised a right afforded by this chapter.'"
The judge reached the right result in dismissing the action, although we rest our affirmance on a narrower ground than she. The argument raised by the plaintiff against the judge's reasoning turns on the incentive it provides for preemptive discharges of injured employees, before they have had a chance to make claims for workers' compensation. Such a discharge might not avoid the particular claim, as the injury would normally remain compensable regardless of the discharge (this case is an illustration); but the injury may be thought by the employer to leave the employee vulnerable to future injuries, if it leaves a chronic weakness (as in a back or a knee, for example) and hence heightened exposure to future workers' compensation claims. The practical effect of á75B(2) as construed by the judge would thus be (so the plaintiff argues) to make injured workers more vulnerable to discharge of the preemptive variety, contrary to the manifest intent of the Legislature.
Many States have statutes comparable to á75B(2), and their judicial decisions have often adopted variations of the plaintiff's argument. Some have done so by ruling that an injured employee has exercised a right afforded by the statute if he has filled out the notice-of-injury form and been paid benefits as a result, even though he has not filed a claim with the workers' compensation board. See, e.g., Overnight Transp. Co. v. Gaddis, 793 S.W.2d 129, 130-132 (Ky. App. 1990); Texas Steel Co. v. Douglas, 533 S.W.2d 111, 114-117 (Tex. App. 1976). Other decisions have treated the act of filling out the notice-of-injury form as constituting the requisite exercise of a right, and still others, going further, have treated the employee's act of merely telling the employer that he has been injured as "exercis a right afforded by [the State's á75B(2) counterpart]." See., e.g., Worsham Steel Co. v. Arias, 831 S.W.2d 81, 83-85 (Tex. App. 1992).
Still other decisions recognize a cause of action for retaliatory discharge although the discharge preceded any action that could be characterized as an exercise of a right under the statute; but in such cases there is generally independent evidence that the employer's motive for the discharge was to prevent claims from being filed under the statute. See, e.g., Wolcowicz v. Intercraft Indus. Corp., 133 Ill. App. 3d 157, 160 (1985) (two days after suffering second injury in six months, the plaintiff was discharged and given one year's severance pay for signing waiver of all claims against the defendant); Wright v Fiber Indus., Inc., 60 N.C. App. 486, 487, 488-491 (1983) (while in the hospital, the plaintiff was visited by employees who told him falsely that the company had filed a workers' compensation claim for him that had been denied and then, after his discharge, told him that he had no rights except under the employer's private insurance policy, and, finally, tried unsuccessfully to get the plaintiff to sign a document acknowledging that he had fully recovered from his injury before he had resumed work); Abels v. Renfro Corp., 335 N.C. 209, 216 (1993) (evidence permitted inference that the employer, having earlier escaped a workers' compensation claim by continuing the plaintiff at full pay for performing light duties, concluded upon the plaintiff's second injury and upon learning that her doctor was recommending that she take a one-month leave of absence, that the best course was to discharge the plaintiff to forestall an anticipated filing of a claim). Indeed, the only Massachusetts case that has been called to our attention appears to be of
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