The court ruling in Brubacher Excavating Inc. v. Workers’ Compensation Appeal Board found that the alleged discrimination was not directly related to his original work injury, according to the Legal Intelligencer.
James Bridges worked for Brubacher as a master mechanic, injuring his back on Sept. 17, 1992, while he was lifting a cylinder head from an engine. Bridges gave his employer Brubacher notice of the injury the following day.
From then until November 1993 Bridges received $455 per week in total disability benefits. He then began working for Diesel Services Inc. as a service writer/adviser, earning $400/week. Thereafter he continued to receive partial disability benefits of $245/week. However, Diesel’s workers’ compensation insurance carrier refused to cover Bridges, and he was terminated after just two weeks.
Bridges’ total disability benefits were reinstated on Nov. 22, 1993, and he has remained on total disability since that time, according to the report.
In 1995, Bridges filed a suit against Diesel under the ADA, requesting $50,000 in compensatory and punitive damages. Brubacher and its workers’ comp insurance carrier asserted a right to subrogation against any recovery Bridges might get.
However, a workers’ compensation judge said they were not entitled to subrogation because the injury alleged in the civil action was unrelated to the work injury. The Workers’ Compensation Appeal Board affirmed that judgment and Brubacher appealed.
The Bridges court found that the state supreme court has addressed a similar issue in a 1980 decision, Dale Manufacturing Co. v. WCAB. In that situation, a worker sued a doctor who left a cotton pad inside her during surgery for her work-related injury. The employer tried to enforce its subrogation rights on the recovery she received, arguing that the doctor’s negligence aggravated the work injury. However, the court said the employer had not offered enough evidence.
The court said in order for an employer to successfully assert its subrogation right must show:
- it is compelled to make payments by reason of the negligence of a third party
- the recovery was for the same compensable injury for which it was liable under the act
In Bridges, the court found that the plaintiff in Bridges sustained two separate injuries, the first to his back, and the second an act of employment discrimination from Diesel.
– Nevin Adams firstname.lastname@example.org