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Truong v. Wong9/18/2002
d defendant is not off the hook until the employee actually receives the payment due him. This is fair to the employee and prevents the employer from escaping its obligations, without resulting in a double recovery to the employee, which the Legislature has not seen fit to authorize. Cf. LaClair v. Silberline Mfg. Co., 379 Mass. at 30 (limiting recovery against corporate officer who failed to insure to the amount the employee would have recovered had he been covered under G. L. c. 152 "given the absence of a statute establishing the measure of damages").
Finally, we reject the president's contention that the employee was required to pursue a claim against the Workers' Compensation Trust Fund, see G. L. c. 152, 65, rather than against the corporate official. This argument was not presented in the Superior Court; it appears for the first time in the defendants' reply brief. It is therefore waived. See Vassallo v. Baxter Healthcare Corp., 428 Mass. 1, 11 (1998). In any case, we have serious concerns about requiring an employee to file an administrative action whose success would deplete the Workers' Compensation Trust Fund and which would add to the employee's litigation burden.
The judgment against the corporation is affirmed. The judgment for the president is reversed. The claim against the president is remanded to the Superior Court for action consistent with this opinion.
So ordered.
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