Employees who receive workers’ compensation benefits may not sue their employers in tort. G.L. c. 152 Sec. 24. Employees may, however, file claims against third parties. G.L. c. 152 Sec. 15. If the employee recovers damages from the third party, the employer is entitled to a statutory lien on the recovery, unless the recovery is greater than the amount the insurer paid the employee. In that case, the employee may keep the “excess,” which is defined as “the amount by which the gross sum received in payment for the injury exceeds the compensation paid under this chapter.”
In DiCarlo v. Suffolk Construction Co., decided by the SJC on Friday, an employer who had paid out workers’ compensation benefits to an injured employee was seeking a portion of the “pain and suffering” damages the employee received from a subcontractor whom the employee had sued in tort. The damages arose from a settlement agreement. The employee agreed to accept less money from the third party than he had received in total from the employer in workers’ compensation benefits, but the agreement specifically allocated a percentage of the payout to pain and suffering. The employer argued that pain and suffering damages should be included in its lien. The employer took the position that the “gross sum received in payment for the injury” included pain and suffering.
However, the SJC allowed the settlement agreement to carve out pain and suffering damages for the benefit of the employee. The court held that the workers’ compensation statute does not allow an employer to be “reimbursed” for pain and suffering damages, because an employee cannot recover for pain and suffering under the workers’ compensation statute – only for wages. The court clarified that an insurer “cannot be reimbursed for something that it did not pay.” The decision can be read here.
Late last year the Oregon Court of Appeals upheld the reinstatement of a Portland Police Officer, rejecting the city’s attempt to negate an arbitrator’s order under the guise of “public policy.” The case Portland Police Ass’n v. City of Portland arose out of the 2010 shooting death of a man named Aaron Campbell by an Officer Frashour. While responding to a disturbance at Mr. Campbell’s house, Officer Frashour fatally wounded the man, mistakenly believing the decedent was reaching for a gun in his waistband.
Portland’s police chief fired the officer in response to the incident after determining Officer Frashour had violated the city’s physical and deadly force policies. The Portland Police Association grieved the termination and, after a 16 day hearing, an arbitrator found Officer Frashour’s actions to be reasonable and ordered his reinstatement to the force. Despite this exoneration, the city refused to reinstate the officer. At the union’s appeal to the Employment Relations Board, the City contended that the award was unenforceable under ORS 243.706(1), which reads, in relevant parts; “as a condition of enforceability, any arbitration award that orders the reinstatement of a public employee . . . shall comply with public policy requirements . . . including but not limited to policies respecting . . . unjustified and egregious use of physical or deadly force.” In short, it was Portland’s position that the arbitrator did not have the authority to reinstate an officer who had violated the city’s stated public policy goal of preventing the unnecessary use of force by police.
The Board rejected the city’s position, finding that, because the arbitrator determined Officer Frashour was not guilty of the conduct for which he was disciplined, the statute was inapplicable. The Court of Appeals agreed with the Board’s determination that the statute only applies when an arbitrator finds an officer violated the city’s use of force policy, but nonetheless elects to alter the employer’s disciplinary decision. Essentially, because the city agreed to resolve certain labor disputes through binding arbitration, it could not overturn the arbitrator’s findings of fact regarding just cause simply because it disagreed with the arbitrator. Ultimately, the Court of Appeals’ decision supports the sanctity of arbitrator’s findings and emphasizes to public employers that they cannot play judge, jury, and executioner when it comes to employee discipline.
The full text of the case can be read here: http://cases.justia.com/oregon/court-of-appeals/2015-a152657.pdf?ts=1451492107
In contract negotiations between the Town of Braintree and the Braintree Police Officers Association, MCOP Local 365, the Town proposed the new position of Community Service Officer (CSO). The Town proposed the CSO as a specialty position that could be filled without regard to seniority, an exception to the usual practice. The Town also proposed to “flex” the officers’ schedules, which meant that the officers would only receive overtime if they actually worked more than eight hours in a day – not if they were required to work an entirely different shift because of the needs of the job.
The contract language did not specify how the CSOs would be compensated. However, the Town agreed that the CSOs would work a flexible schedule “in the same fashion as currently worked by the Narcotics Unit.” This was sufficient to convince the union to agree to the proposal, because the narcotics detectives worked a flexible schedule, and were paid the night shift differential all the time. The night shift differential made up for the negative aspects of the position, and “sold” the proposal to the union.
Once the position was filled, however, the Town refused to pay the CSOs the night shift differential, taking the position that it was not required to do so because the pay rate was not stated in the contract. The union filed for arbitration. On January 20, 2016, the arbitrator issued his award, agreeing with the Union and ordering the Town to pay CSOs the nights shift differential. (The award can be viewed here.)
This is an important victory for the Massachusetts Coalition of Police and the Braintree Police Officers Association. The arbitrator acknowledged that, by agreeing to a specialty position which the Chief could fill without regard to seniority, the union was obviously making a concession, and it would not be reasonable to expect the union to do so without getting something in return. In this case, what the union expected to get in return was the night shift differential. The arbitrator, Timothy Buckalew, showed great respect for the challenges of police collective bargaining. It was a hard-fought and well deserved victory, and I congratulate the Braintree Police Officers Association!