A worker who suffered a drug overdose on the job is suing his former employer, alleging his co-workers committed gross negligence by failing to call 911 and instead placing him in a cold shower. Bangor Daily News reports the 30-year-old man is now confined to a wheelchair and unable to care for himself.
The case is unique in the fact that in most Maine work injury cases seeking coverage of medical bills and lost wages from an employer, workers’ compensation is the exclusive remedy, as explained in the general provisions of 39-A M.R.S.A. §104. The law says an employer is exempt from civil action for either negligence or intentional conduct resulting in an employee’s injury or death, and also that a fellow employee is exempt from a Maine injury lawsuit arising out of the course of employment.
As a no-fault system, the employee is not required to prove negligence and the employer loses the right to assert most common-law defenses that would ordinarily address an injury lawsuit. The worker does need to show he or she was acting in the course and scope of employment. Although employees can (and should, if available) assert third-party liability claims against non-employer defendants whose negligence caused or contributed to their injuries, it’s very rare for an employee to succeed in a negligence lawsuit against an employer for injuries sustained in the course and scope of employment. This doesn’t apply to independent contractor workers, only those who meet the definition of “employee.”
Employer Negligence Alleged in Maine Work Overdose
In this case, it is not disputed the worker was an employee. Court records show he was denied workers’ compensation because his injury was caused by a drug overdose. The injury lawsuit has been delayed a full year because the employer’s two insurers (one for workers’ compensation and another for general liability) have refused to represent the salmon farm in this legal action or pay for the cost of the defense.
Plaintiff’s complaint alleges he was working a 12-hour overnight shift cleaning facilities and equipment when he overdosed on either heroin or cocaine he was given by a co-worker. The company has an express policy barring employees from using alcohol or drugs on-the-job or being under the influence of either while working. Plaintiff was putting on his rubber boots when he fell, striking his head on the floor. His co-workers discovered him unconscious, but rather than call 911, the co-workers placed him in a cold shower and called a supervisor, who did not answer. More than four hours passed before a manager reported to the site after being informed of a “problem.” The manager then called 911. When emergency medical services crews arrived, plaintiff was reportedly non-responsive with irregular breathing. It required five doses of Narcan, opioid overdose antidote, to revive him while he was transported to a hospital in Bangor.
Worker spent nearly two months hospitalized, followed by another six months in a rehabilitation facility. The state’s Medicaid program has paid more than $600,000 for his care, and his costs are expected to be ongoing for life. Plaintiff attorneys say it should be the responsibility of the employer, not Maine taxpayers, to foot those bills. The company argues workers’ compensation is the proper avenue of recovery for the worker, but the workers’ compensation insurer has denied the claim. The workers’ compensation insurer argues a general liability lawsuit against the employer is the only potential remedy available. Obviously, they can’t both be right, but it remains to be seen how the court will decide. Both insurers have filed motions to dismiss the complaint and for a declaratory judgment on the issue of whether this case should proceed via workers’ compensation or general liability.
Attorneys for the worker note that employers have a legal duty to ensure workplaces are reasonably safe for their workers. They further assert this was not a reasonably safe workplace and expert witnesses say if plaintiff’s co-workers had made sure he had promptly been treated after collapsing, he likely would have needed only a single dose of Narcan and probably wouldn’t have had any lasting injury. Plaintiff’s attorney says that while plaintiff worker does not make excuse for taking drugs on-the-job, it was not the drugs that caused his injury but rather the delay in receiving treatment. Further, there is reportedly evidence that many employees routinely used, sold and distributed drugs on site while working, and that this fact was known or should have been known to the employer, which failed to enforce its own anti-drug policies.
The company has responded plaintiff’s injuries were partly or wholly the result of his own conduct and comparatively negligent; that when he took drugs, he assumed the risk of overdose.
This same company was successfully sued by a 24-year-old worker who needed two fingers amputated while working on the ocean-based farm. The morning of his shift, he had smoked marijuana and this was a couple months prior to Maine voters’ decision to legalize the drug for recreational use. He later settled for an undisclosed amount.
If you are the victim of a Bangor work accident, contact Peter Thompson & Associates at 1-800-804-2004 for a confidential consultation to discuss your rights.
Maine man who overdosed at work sues salmon farm for allegedly not rendering aid, Aug. 28, 2018, By Judy Harrison, Bangor Daily News
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