An Injured Worker Finds His Status Denies Him Workers Compensation Coverage

Celso Mena says on July 30th, he was standing on scaffolding six feet off the ground at the Hinsdale school construction site.

His hands were full, it was raining, he slipped.

I lose the balance. Hey I fall. When I fall, o my God I see my leg, feet this wiii…its gone. So your bone came right out of your foot? Yeh, its something very hard for me to say.

The 57 year old worker said he thought he had insurance to cover his treatment.

GNPB Construction of Hudson, a subcontractor, had required him to purchase a policy before he could work on the Hinsdale project.

Because I needed work, I take it. I pay for 300 dollar first, then (he) send me a bill and send 100 more. So now I have accident, you know, nobody co-covr me. That’s funny, you know, if I have accident for insurance they no cover me, that’s not nice. I, I can’t believe that.

The policy Mena bought was not a typical health insurance plan.

It was in fact a worker’s compensation policy, written to cover anyone who worked for Mena, but not Mena himself.

The irony is that Mena has never had anyone work for him.

Joseph Donahue of the New England Carpenter’s Union says companies like GNPB often require workers to have these minimal workers comp policies.

That way, he says, the company can avoid having to hire them as full time employees.

But Donahue says in this case, Mena’s insurance problem is not the issue.

Whether he has that policy or not is is doesn’t really matter in this case because he’s truly an employee of gnpb. He was told when to show up for work. He had a supervisor who told him what to do every day, every minute of the day. he used all the company tools, all the company materials and its bas-it’s really, really clear, he was basically an employee and he should be covered under gnpb’s policy.

The conditions Donahue describes are included in a state law that determines whether a worker should be classified as an employee, or an independent contractor.

GNPB officials have said they don’t hire every worker as a full time employee, because they frequently need only very specialized work performed for a short period of time.

Still, company officials declined several invitations to be recorded for this story.

School district officials say they’re aware of Celso Mena’s accident.

But Assistant Superintendant Dr. David Crisafulli says they haven’t talked to GNPB officials about Mena’s case.

He says the district relies on Hutter Construction Corporation, the general contractor, to handle issues cropping up with subcontractors, like GNPB.

…we certainly voiced our concern to hutter. And we did this publicly at a school committee meeting, the last meeting, and the question was asked about the subs, and being sure that people had appropriate coverage. It seems to me to and its sad that this particular worker was paying insurances and not protecting himself and that’s another sad scenario in itself.

New Hampshire’s Worker’s compensation rates for drywall hangers like Mena are high.

They run around 25 dollars per 100 dollars of income.

In contrast, Massachusetts’s rates are less than 10 dollars per hundred.

The reason for the difference is largely because the Bay State has a smaller percentage of workers labeled as independent.

New Hampshire’s Labor Department officials say they don’t know exactly how many construction workers in the state are mis-categorized.

And Deputy Commissioner David Wihby says it’s next to impossible for his inspectors to find out because workers don’t want to talk about it.

They don’t come and call us and say geez, this guy’s making me an independent and I don’t want to be, because in those cases we can go after it. We don’t hear about it until we get there and something happens and then we look into it and we find there’s always a story that you could go with either way.

A worker’s classification is usually hashed out in a Labor Department hearing…but after an accident.

Mena could get his hearing in a couple of months, if GNPB’s or Hutter’s insurers don’t come through sooner with coverage.

In the meantime, labor union officials say they want the state to make sure that at least publicly funded projects, like the one in Hinsdale, have workers who are all properly classified.

Labor’s Deputy Commissioner David Wihby says the state has enacted new laws to clear up any loopholes in labor statutes, which apply to both public and private projects.

So there were a number of them that were aimed at the construction industry and some of the problems that we’ve been seeing in the industry and that are going to take affect at different times but are trying basically to do the same type of thing and that is to have everybody playing on the same level fields.

One new law tightens up the definition of an independent contractor.

Another increases the penalties for not paying workers compensation premiums.

And still another requires contractors to share more information with the labor department, so officials can more easily determine who is working on a project, and how they’re classified.

Some of these new laws have already gone into effect.

But it’s still too early to tell what kind of effect they’ll have on the state’s construction industry.