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In Saab, et al. v. CVS Pharmacy (SJC No. 10193), the SJC will determine if a lower court judge properly held that the
exclusivity provision of the Workers' Compensation Act prevented the Superior Court from accepting subject matter
jurisdiction.
Tamara L. Ricciardone, the author of "Workers' Compensation in Massachusetts," said a ruling against CVS would be
"incredibly significant."
"If the court decides in favor of the parents, it would mean that any family member who is not financially dependent on
the employee can step in and sue," said Ricciardone, who is not involved in the suit.
"This case will turn on the court's interpretation of who is 'an employee' under the statute, and whether financial
dependence is the distinguishing characteristic that prevents an employee's family member from suing an employer outside
of the Workers' Compensation statute."
While the law is not as clear with respect to financially independent parents, Ricciardone, a lawyer at Smith & Duggan
in Lincoln, said an injured employee would certainly be barred from filing suit.
"The only way an employee can waive their right to benefits is if they to do it at the time they are hired," she said.
"If they don't waive their right immediately, they can't later turn around and say, 'I don't want them. I'm going to sue
you.'"
But where the murder happened during the teen's shift, William J. Dailey Jr. of Sloane & Walsh in Boston, who represents
defendant CVS, wrote that the Workers' Compensation statute precludes the family from bringing a wrongful-death action
against the employer.
"[The teen's] parents urge an interpretation of ... the overall exclusivity of remedy scheme underlying [the statute]
that would permit any financially independent parent, spouse or child to bring a tort action against the decedent's
employer," he said. "[E]ven though the employee had not elected to retain his common law rights and after the employer
had paid its Workers' Compensation insurance."
The parents' lawyer, Richard P. Campbell of Boston's Campbell, Campbell, Edwards & Conroy, countered that CVS' argument
is without appellate authority.
"[The parents] are unique in that they have lost their son, through no fault of their own, due to the negligence of the
corporate defendant," he wrote. "That defendant now asks the Court to use the worker's compensation law, which never
applied to them, to strip them of their right to recover for their lost consortium - a right created specifically in the
wrongful death statute and guaranteed by the Massachusetts Constitution."
The case is scheduled for oral arguments on Sept. 3.
Fatal stabbing
A student at Boston Latin Academy, Giambrone worked part time at a CVS Pharmacy in Boston's Longwood medical area.
On the evening of Feb. 16, 2004, Daniel Rogers entered the store and began stealing packages of toothpaste.
When Giambrone and a store manager confronted Rogers outside the store, he pulled out a knife and stabbed both men.
Rogers cut Giambrone in the neck, severing his carotid artery. Despite efforts to revive him, the teen bled out on the
street and died.
Rogers was subsequently found guilty of first-degree murder in 2007 and sentenced to life in prison.
Although the parties disputed whether the payment qualified as a workers' compensation benefit, CVS paid Giambrone's
funeral bill.
In February 2007, the family filed a wrongful-death suit in Suffolk Superior Court.
In response, CVS successfully moved to dismiss on grounds that the Workers' Compensation exclusivity clause requires all
claims to be brought before the Board of Industrial Accidents.
Wrong court?
"An analysis of the carefully crafted statutory scheme, from its prohibitions against wrongful death actions against
employers ... to its provision of certain benefits for employees dying without dependents, makes clear that the
legislature intended claims such as those of [the plaintiff's] parents to be brought before the Board of Industrial
Accidents, not the Superior Court," he said.
Dailey added that the rule extended to parents regardless of financial dependence on the employee.
"Contrary to the contentions of the parents, the application of the Workers' Compensation Act's exclusivity provision
is not determined by whether a particular claimant was entitled to or received benefits, but rather, by the compensable
nature of the injury," he wrote. "Once it is concluded that the injury or death occurred in the course of employment and
that the injured employee failed to retain his common law rights, as the Superior Court determined here, the exclusivity
provision is triggered."
While the Legislature has had opportunities to narrow the scope of the exclusivity clause, Dailey said that it has not
chosen to do so.
"This Court has stated that the exclusivity provision 'has been the cornerstone of the Massachusetts Workers' Compensation
act' and that it is 'very broad,'" he said.
Notions of fairness
"The result achieved by CVS uses the remedial Worker's Compensation statute not to confer rights (as intended) but
instead to take them away and it does so to individuals who never did or could qualify for any of its benefits," he wrote.
"Since neither Ms. Saab nor Mr. Giambrone was financially dependent on [their son] they were not eligible to receive
Worker's Compensation benefits when [he] died violently at work."
Although Campbell conceded that CVS paid the teen's funeral expenses, he disputed the characterization that the payment
constituted Workers' Compensation benefits.
"[The parents] did not come 'within the ambit' of the Worker's Compensation statute - they and their rights were never
part of the Worker's Compensation bargain," he stated. "And a careless employer's use of the Worker's Compensation
statute to block a remedy for these non-financially dependent parents' civil statutory right to recover damages caused
by that employer rubs raw all notions of justice and fairness."
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The Supreme Judicial Court is slated to decide whether the parents of a murdered high school senior have the right to
file a wrongful-death lawsuit against the pharmacy where their son worked as a part-time clerk.