Insurance mandatory for employees
A worker who fell from a roof will have his hospital bill paid by his employer because there was no health insurance in place for him when the accident occurred.
The employer, Margaret McLaughlin, was found guilty last week of failing to effect and continue a standard health insurance contract for the employee between 14 September and 18 December, 2004.
She had pleaded not guilty, telling the court she had not failed because she was checking to get insurance, but no where was open in the days following Hurricane Ivan, which caused so much destruction in Grand Cayman 11-12 September, 2004.
Magistrate Margaret Ramsay-Hale heard the evidence. In finding McLaughlin guilty, she pointed out that the offence is one of strict liability.
That means it does not consider a defendant’s intention or state of mind; if there is no insurance for the employee, the employer is guilty.
Employers have to understand that health insurance is compulsory, the magistrate emphasised.
The circumstances after Hurricane Ivan could go to mitigate the sentence, she said. Another important factor would be whether the employer had paid the medical bills.
Defence Attorney Clyde Allen spoke with his client and later advised the court that she would undertake to pay the hospital bill, which was $7,670.
The magistrate said this case was a good example of why health insurance is mandatory. The injured person is not embarrassed by a debt he cannot pay and the Health Services Authority is not at risk of having to absorb the expense of his treatment.
Mr. Allen reminded the court of circumstances that led to the offence. McLaughlin had told the court that the young man was a friend of her stepdaughter’s. The house he lived in had been damaged in the hurricane, so the defendant took him in.
There was concern about his right to stay in Cayman, so she took out an emergency temporary work permit for him, as was allowed at the time. He had been working only about three days when the accident occurred, on 23 September, 2004.
The permit was granted on 4 October, 2004, but the magistrate said that did not matter. Whether the worker was lawfully or unlawfully employed, he was employed.
If McLaughlin could not find insurance coverage on short notice, as she claimed, she should not have hired him. Having hired him, why did she put him on the roof when she had other workers, the magistrate wondered.
‘I recognise those were difficult days and we were all pressed to do extraordinary things that we would not have done but for the hurricane,’ she said. ‘But the law is strict.’
There was no denying that the island needed every able-bodied person to work for the rebuilding of the infrastructure, homes and schools to restore normalcy as quickly as possible, the magistrate said. That McLaughlin had put the young man to work was understandable if not laudable.
What was not understandable was her refusal to indemnify him afterwards.
The Health Insurance Law provides for a fine of up to $5,000 in Summary Court. The magistrate said a fine of $500 would be sufficient in this case to show the court’s displeasure.
The law also entitles an uninsured worker to recover from the employer any loss or damages that result from the employer’s failure to provide insurance coverage.
The magistrate said she was taking into account the fact that McLaughlin was assuming responsibility for the hospital bill, thereby saving the worker from having to go through another court process to recover the money.
The case for the Prosecution was conducted by Crown Counsel Trevor Ward.