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Truong v. Wong9/18/2002
Suffolk.
April 3, 2001
Practice, Civil, New trial, Directed verdict. Damages, Tort, Loss of earning capacity. Evidence, Earning capacity. Corporation, Officers and agents. Negligence, Employer, Failure to obtain workers' compensation coverage. Workers' Compensation Act, Uninsured employer, Failure to obtain insurance, Recovery from third person.
On May 29, 1997, the plaintiff-employee, Chi Truong, suffered an injury in the course of his work at the defendants' tofu manufacturing plant. There is no dispute that the defendant-employer, Yah Kee, Inc. (corporation), did not carry workers' compensation insurance and was not self-insured. In the absence of the requisite insurance, the employee filed a complaint in Superior Court for personal injury damages against the corporation as well as against the president and treasurer of the corporation, defendant Cheng Yah Wong (president). The parties cross-appeal from judgments on issues related to liability and damages.
Governing legal principles.
Every employer in the Commonwealth, with certain limited exceptions, is required to carry workers' compensation insurance, unless self-insured or a member of a self-insurance group if so qualified. See generally Locke, Workmen's Compensation 1, at 3 (Koziol Supp. 2000). If an employer fails to provide such coverage, an injured employee may sue the employer in a civil action for the full scope of tort damages. G. L. c. 152, 66, 67. In such an action, the employer may not assert certain critical common-law defenses. Ibid. See LaClair v. Silberline Mfg. Co., 379 Mass. 21, 26 (1979). An employee may also bring an action in tort against a corporate officer who negligently fails to obtain workers' compensation coverage. See id. at 29. In such a case the measure of damages is the "amount which would have been obtained under G. L. c. 152 had work[ers'] compensation coverage been provided." Id. at 30.
The trial evidence.
The jury could have found the following facts.
The employee began work for the corporation in 1980 when he came to the United States at the age of forty-seven. For seventeen years he worked eleven hours a day, six days a week, originally at a plant on Tyler Street in Boston and more recently in Waltham, making tofu and doing manual tasks associated with that endeavor. He does not speak English.
On the morning of May 29, 1997, the employee slipped and fell on a wet floor at work and injured his right wrist in an attempt to break his fall. (The employee is right-handed.) That afternoon the employee went to see a Chinese doctor who was a "healer with bones." That doctor referred the employee to the New England Medical Center. The employee went to the emergency room the next day, and from there he was referred to the hand clinic. On June 5, the chief hand surgeon at that hospital performed corrective surgery on the employee's fractured wrist. The surgeon aligned the bony fragments in the plaintiff's arm, inserting two pins in the bone between the plaintiff's wrist and his fingers and two other pins in one of the major bones in his forearm. The surgeon then connected the pins with two carbon rods. At the time of his injury the employee was sixty-four years old.
Two months later, on August 1, the doctor removed the pins and applied a removable splint. The employee then began physical therapy. By September, the employee's strength improved but was still far from normal. There was improvement after September, but the employee did not regain his original level of functioning. One year after the surgery, the surgeon estimated that the employee had regained seventy-five percent of his strength and ei
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