The witness statement of a worker no longer on the island was part of the evidence Magistrate Grace Donalds heard before finding an employer guilty of failing to provide health insurance.
Elite Cayman Ltd. and its director Wendel Wendel were each fined $500 in Summary Court last week.
Trial started in August 2006, with Crown Counsel Trevor Ward calling evidence from the Health Insurance Commission.
Defence Attorney Keith Collins wanted to cross-examine the worker, but he was not in Cayman. The trial was adjourned until October.
In December, the magistrate allowed the worker’s witness statement to be read because he was still out of the jurisdiction.
The worker was an aluminium fabricator and installer employed from October 2002 till October 2004.
The evidence was that the employer was approached for employment when the company was dormant. It was agreed that the worker would generate work so that the company could grow. His wife was employed elsewhere.
He said Elite failed to provide health insurance for him despite his requests. As a result he had to obtain his own coverage at $55 per month from October 2003 to September 2004. He also had uninsured medical expenses prior to his taking out a policy. Those expenses totalled $224.78.
In his witness statement, the worker said that when he approached Mr. Wendel about insurance, he was told it hadn’t come through yet. Then Mr. Wendel told him to go on his wife’s policy and then said the legislation had no teeth and couldn’t do anything.
Mr. Wendel denied saying those things. He said he believed that the worker was on his wife’s policy.
The magistrate said she considered that the witness statement was not subject to cross-examination. She noted discrepancies between it and the evidence on oath.
She also referred to Mr. Wendel’s evidence that at the time the Health Insurance Commission inquired into the matter, it was post-Hurricane Ivan and he was overburdened with work. He said it was not made clear to him how serious the charge was.
The magistrate referred to evidence of Superintendent of Health Insurance Mervin Conolly and Inspector Wesley Gibson about the letters and phone calls to Mr. Wendell.
Had there been an agreement to have the worker on his wife’s policy at her place of employment, the defendant would have responded sooner and raised this point, the magistrate said.
She did not find that the worker had induced Mr. Wendell to believe he would be included in his wife’s policy. She found that he did seek coverage from Mr. Wendel, but was declined.
She also had the evidence of the manager of the insurance company with which the worker had his policy.
The magistrate initially ordered the defendant to pay compensation to the worker to cover the cost of his insurance premiums and uninsured medical expenses. The total was $939.78.
Mr. Ward advised that the penalty section of the Health Insurance Law provided only for a fine of up to $5,000. Regrettably, it seemed that if the worker wanted to be compensated he could bring action under another section of the law and ask for damages.
In a previous case in another court, the employer had offered to pay compensation and was part of her mitigation when sentence was passed (Caymanian Compass, 4 April).
The magistrate then imposed the fines against the company and Mr. Wendel as its sole director.
Evidence given early in the trial was that all of Mr. Wendel’s other employees were covered by health insurance.