Frozen fish shat­ters dream

Worker can­not be com­pen­sated for near-fatal in­juries

The Compass - - FRONT PAGE - BYMELISSA JENK­INS

An 18-year old male from Marys­vale wakes up at 4:30 a.m. on July 13, 2011 to find an un­fa­mil­iar ceil­ing above him.

He anx­iously sits up, won­der­ing where he is. He looks around the room for his fam­ily. He’s over­come with a sense of con­fu­sion. Fear sets in.

“This is not my room,” he says to him­self.

A nurse tells him he is in the hos­pi­tal and had a life-al­ter­ing or­deal.

It’s been seven days since Gat­lyn Eng­land was nearly killed while work­ing in the hold of a fac­tory freezer trawler docked in Bay Roberts.

He was struck on his un­pro­tected head by a fall­ing, frozen fish.

Though he never lost con­scious­ness, this is the first mem­ory Gat­lyn has fol­low­ing the July 5 mishap, which made pro­vin­cial head­lines be­cause of the un­usual cir­cum­stances of the in­ci­dent.

He re­calls be­ing over­come with emo­tion, and ask­ing for his mother. It’s the start of a very dif­fi­cult and frus­trat­ing pe­riod for this strap­ping, ven­ture­some young man.

Gat­lyn has avoided me­dia in­ter­views since the in­ci­dent, and was even re­luc­tant to talk with his le­gal rep­re­sen­ta­tive in the be­gin­ning.

But a se­ri­ous set­back in his at­tempts to re­ceive ad­e­quate com­pen­sa­tion for his in­juries in re­cent weeks prompted him to speak out ear­lier this month.

Dur­ing an in­ter­view at his fam­ily home in Marys­vale on Mon­day, Oct. 14 ( Thanks­giv­ing Day), Gat­lyn opened up about the in­ci­dent. With his best friend, Dy­lan Simms, and his sis­ter, Vicky Eng­land, at his side, Gat­lyn re­called his near-death ex­pe­ri­ence, and his fight for com­pen­sa­tion. Dy­lan was also on the ves­sel that fate­ful day.

Gat­lyn was not wear­ing a hard hat, and said he was never is­sued one, or told he had to wear one.

“I was never told I had to wear a hard­hat and boots,” Gat­lyn said. “There was only one guy work­ing that day with a hard hat on.”

Se­ri­ous in­juries

Gat­lyn was work­ing at Moorfrost — a sub­sidiary of Har­bour In­ter­na­tional Ltd. — as a steve­dore for two months. He hoped to save up enough money to at­tend trade school in the scaf­fold­ing pro­gram, some­thing he had wanted to do since he was in ju­nior high.

His dreams came to an end July 5 when he was work­ing in the hold of the MV Aqviq — a ves­sel owned by 55104 New­found­land and Labrador Inc. and mem­ber of the Ocean Choice In­ter­na­tional fleet.

Whi le of f load­ing pal­lets of frozen yel­low­tail, work­ers were con­cerned the fish were not se­cure as they were be­ing lifted by crane out of the hold, Gat­lyn told The Com­pass Oct. 14, 2013.

One of the last things Gat­lyn re­mem­bers is re­quest­ing shrinkwrap to se­cure the pal­lets.

“(The su­per­vi­sor) said it was tak­ing too long to wrap the pal­lets,” Gat­lyn re­calls. “So we asked to get a vat to load the fish.”

There was no clean vat avail­able, they were told.

It was soon af­ter an un­se­cured fish weigh­ing some 18 kilo­grams ( 40 pounds) plum­meted eight me­tres (26 feet), hit­ting Gat­lyn on the head.

Dy­lan was nearby and heard the screams from fel­low work­ers. When he reached Gat­lyn, who had been placed on a pal­let and was still con­scious, Dy­lan said “there was blood ev­ery­where.”

There was a sense of panic in the hold, com­pounded by the fact that no­body had a phone.

“I had to run off the boat to the deck to get one …” said Dy­lan.

Vicky ar­rived at the scene not long aft er th e ac­ci­dent, and re­mem­bers be­ing dis­cour­aged from ap­proach­ing the dock be­cause she was not wear­ing pro­tec­tive safety equip­ment.

But she pushed her way through, and re­mem­bers see­ing a pal­let be­ing lifted from the ship’s hold. There was no guide rope at­tached, and it was swing­ing back and forth.

She said Gat­lyn was ly­ing on the pal­let.

“It was ter­ri­fy­ing. I was afraid he was go­ing to fall into the ocean,” Vicky said.

Dy­lan and Gat­lyn con­firmed most of their friends who worked at Moorfrost quit the same day.

For Gat­lyn, his in­juries were dev­as­tat­ing.

He suf­fered per­ma­nent loss of hear­ing in his left ear, a blood clot on his brain, bleed­ing in his left ear, a frac­tured skull, se­vere mi­graines and back in­juries. He was in the hos­pi­tal for 21 days and lost 50 pounds.

No en­ti­tle­ment

Gat­lyn had to learn to sit, stand and walk again. He had lim­i­ta­tions af­ter he was dis­charged, in­clud­ing not be­ing al­lowed to drive be­cause his vi­sion was “rat­tling.” It was hard be­cause he is a car en­thu­si­ast.

Vicky said her brother was re­ceiv­ing $ 63 ev­ery two weeks from the Work­place Health, Safety and Com­pen­sa­tion Com­mis­sion ( WHSCC), but it was later in­creased to $100-plus.

The next set­back came when the Eng­land fam­ily was in­formed Har­bour In­ter­na­tional could not be held li­able for Gat­lyn’s in­juries, due to WHSCC reg­u­la­tions.

The New­found­land and Labrador em­ployer guide states, “The work­ers’ com­pen­sa­tion sys­tem in New­found­land and Labrador is a no-fault insurance sys­tem that pro­tects em­ploy­ers and work­ers. Em­ploy­ers reg­is­tered with the Work­place Health, Safety and Com­pen­sa­tion Com­mis­sion pay as­sess­ments that fund the sys­tem, and in re­turn they can­not be

“The in­jury was not his fault, but he is be­ing told he can’t get com­pen­sated be­cause nei­ther com­pany can be held re­spon­si­ble. It’s wrong and peo­ple need to know.” — Vicky Eng­land

sued for the costs of a work-re­lated in­jury, ill­ness or fa­tal­ity.”

Gat­lyn could not be com­pen­sated by his em­ployer, and WHSCC of­fered $2,500 in com­pen­sa­tion.

WHSCC did not re­spond to emails from The Com­pass.

Pur­su­ing com­pen­sa­tion

“It was not all about the money,” Vicky said. “Maybe if the com­pa­nies were held re­spon­si­ble, it might not hap­pen to some­one else.”

Gat­lyn and Vicky hired Mor­row and Mor­row law of­fices in Bay Roberts in 2011 to see what op­tions he had to pur­sue le­gal ac­tion.

The law of­fice be­gan a pro­ceed­ing against 55104, the reg­is­tered owner of the MV Aqviq.

Two years af­ter ini­tially hir­ing lawyer Bill Mor­row, he said the Supreme Court of Canada would not fol­low through on the law­suit be­cause new leg­is­la­tion “in­volv­ing ma­rine claims are still sub­ject to the pro­vin­cial work­ers com­pen­sa­tion and pro­hi­bi­tions against su­ing” a com­pany cov­ered by leg­is­la­tion.

“The law has re­cently changed and ex­tended the (WHSCC) pro­tec­tion against 55104, who we felt we had ev­ery right to pur­sue,” Mor­row told The Com­pass. “In this case the com­pany was reg­is­tered with WHSCC and they were for­warded the pro­tec­tion.”

St. John’s lawyer Eli Baker also spoke with The Com­pass. Al­though he did not know the specifics of this case, he did give some ex­pla­na­tion to why sim­i­lar cases can­not be pur­sued.

He ex­plained work­ers can­not go af­ter the em­ployer af­ter in­jury, but can opt out of WHSCC if they are in­volved in a mo­tor ve­hi­cle-re­lated in­jury while work­ing since there is another insurance pol­icy that can give com­pen­sa­tion.

Baker con­tin­ued, say­ing if there are grounds for le­gal ac­tion WHSCC can sue the em­ployer, though the in­jured party would not re­ceive any of it.

Cur­rent sit­u­a­tion

A few months ago Gat­lyn found more blood in his left ear.

“If I take a smack on the head, I could die,” Gat­lyn states. “I had to leave f ive jobs be­cause of my in­juries.”

He noted it has been frus­trat­ing mov­ing to dif­fer­ent jobs, how­ever, Gat­lyn has been ac­cepted into a steam­fit­ter/ pip­efit­ter pro­gram next April. Be­cause of his ear in­jury, he could no longer take scaf­fold­ing be­cause of the heights in­volved.

Vicky still can’t be­lieve he was de­nied com­pen­sa­tion for his in­juries.

“The in­jury was not his fault, but he is be­ing told he can’t get com­pen­sated be­cause nei­ther com­pany can be held re­spon­si­ble,” Vicky ex­plained. “It’s wrong and peo­ple need to know.”

Photo by Melissa Jenk­ins/Spe­cial to The Com­pass

Gat­lyn Eng­land (left) and friend Dy­lan Simms share a mo­ment un­der the hood of a car in Marys­vale last week.

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