Marine worker cannot be compensated for near-fatal injuries
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.
© Photo by Melissa Jenkins
Gatlyn England (left) and friend Dylan Simms share a moment under the hood of a car in Marysvale last week.
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."
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.
While offloading 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 shrink-wrap 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 after the 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.
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 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.
"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.
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 five 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."