A claim for workplace injury

A claim for workplace injury

Margarette MACAULAY

Monday, February 17, 2020

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Dear Mrs Macaulay,
My husband was injured at his place of employment nine days after he began working. He was out of work for a total of about seven weeks until he returned to work for a month, after which he got another week's sick leave. This was because he was experiencing some pains and other issues with the injury. He eventually resigned from the job after about three months.

A few weeks after he resigned he called the former workplace to remind them that he had a visit with the bone specialist so he needed some funds to pay the doctor. He was told that he was no longer employed with them so he was on his own. He went to see the specialist and was told that the company had called to tell them that he was no longer employed with them so they were no longer responsible for his medical costs. My husband used his health card and paid the balance out of pocket. He has another visit in a few weeks with the specialist and he will need to pay out of pocket again.

Please note that as much as he was sometimes met with long wait times or a multitude of questions to get funds to pay for the doctors' visits, most of his visits were paid for by the company while he was still employed there; otherwise he would use a health card (not the company's) and pay the balance.

The injury was on the job and after he resigned they stopped paying his medical costs. Could you please advise me of the best legal way to deal with this matter?

As so often happens with these letters, I do not have all the information that a lawyer would need to truly assist. I do not know what your husband's employment contract was. Apart from saying that he was injured on the job, you have not given any further facts wherein one can conclude whose fault or negligent act or breach caused your husband to be injured. It seems that the employer accepted that they were liable and ought to be responsible for his medical expenses, and that they did by and large, and extended the sick leave time which he needed, until your husband resigned.

You have not said why your husband resigned when he did. Clearly, if he was injured to the extent that he could no longer fulfil his duties, and a medical decision supported this conclusion, the company would have had to terminate him for medical reasons and on such terms as appropriate in his circumstances. His resignation must have come as a pleasant relief for the company then. I also suppose he resigned without any legal advice whatsoever!

I cannot tell you that if your husband files a claim against the company that he will definitely succeed. I can tell you that whatever I say here, with so few facts, still requires him to go and consult a lawyer who is experienced in labour/contract law and obtain advice about whether he should proceed with a claim or not, after he has given full instruction to the lawyer.

It is a fact that from the company's conduct in assuming responsibility for your husband's medical treatment for his injury, which he suffered while working, that they admitted, on the face of it, that they were liable. In addition, the fact is that they acted on this conclusion for a while. Since they had admitted by their actions that they were liable for his medical treatments based on the fact that it happened at work to their employee, the principle of estoppel can be urged to the court to obtain orders for the company to continue the payments for the medical treatments until his injury is healed, and for reimbursement to him of any medical expenses he had to pay out of his own pocket and interest thereon.

The principle of estoppel is a legal rule which prevents someone from saying that something they have previously stated as true, or that has been established as true, is in fact not true.

A claim for damages for the pain your husband suffered from the injury against his employer based on an employer's duty of care owed to its employees should also be considered.

This is all I can suggest to you and your husband. You must give all the facts to the lawyer you consult, because leaving out one fact may jeopardise the success of a perfectly good claim.

So please do the right thing and go and consult a lawyer properly and inform them of all the facts you both have at your disposal.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.

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