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When is a worker's pay not a 'wage'?

When the worker is paid in cash, argues the insurance company covering a workers' compensation claim on a Tarpon Springs project.

By ROBIN STEIN
Published May 2, 2006

He survived the three-story fall, the four surgeries and the two evictions. He withstood eight weeks of silence from his employer, the inaction of its insurance carrier and the flood of nearly $160,000 in medical bills.

But the saga of Alfonso Escobar is far from settled.

When Escobar took that fateful step into an unguarded elevator shaft in February, the 47-year-old drywall hanger tumbled into the legal thicket of workers' compensation.

An insurance company for Cantel Homes, the general contractor on the Tarpon Springs townhome project where Escobar fell, has agreed to cover his medical expenses but is refusing to pay Escobar any lost wages.

The subcontractor that hired Escobar promised to pay him $100 in cash per day, according to pleadings in his case. Cantel contends that the $100 cash does not qualify as "wages" under Florida's workers' compensation rules.

"Wages," according to the statute, "includes only the wages earned and reported for federal income tax purposes."

Under this definition, Escobar's wage would be zero, said Peter H. Dubbeld, the attorney representing Cantel and its workers' compensation insurance carrier, St. Paul Travelers.

Without proof that Escobar was working as something other than a "cash employee as we suspect," he is not eligible for compensation for lost wages, Dubbeld wrote in a letter.

"I've never seen this argument before," said Escobar's attorney, John P. Brooks, who has specialized in workers' compensation law for two decades.

"Because the people are not taking taxes, they don't owe him any compensation?" Brooks said. "They want to penalize him for how this company pays their employee?"

Brooks said the argument was egregious, especially since, in the end, Escobar was paid nothing that day.

Nor has he received any money from the insurance company, which has forced him to rely on donations.

And even those will be scrutinized.

In a letter, St. Paul Travelers has asked for a report of "wages, gratuities, money" Escobar has received.

The sum will be deducted from the amount of lost wages paid, when and if he receives any.

The refusal to pay lost wages is one way Cantel, which is based in Tarpon Springs, is working to minimize responsibility for Escobar's claim.

On Friday, Cantel president Douglas W. Matthews made his first public comments since the Feb. 3 incident.

In a deposition, Matthews pointed the finger at Security Drywall II, the subcontractor that hired Escobar. Several times, he contended that Security made conflicting claims and false representations.

Matthews said Security Drywall II had been working on the Sunset Bay townhome project for about a year, and Gary McQuiston, who owns the New Port Richey company, submitted a certificate of proof of insurance, including workers' compensation.

Florida law requires employers to carry workers' compensation insurance - no-fault coverage that pays medical expenses and a portion of lost wages for injured workers, and in turn, shields employers from personal injury lawsuits. Companies caught operating without a policy can be charged with a felony.

On construction sites with multiple companies, the buck stops with the general contractor because that's who is legally responsible for any damages incurred by uninsured subcontractors.

Matthews said he first learned about problems about three weeks after Escobar's fall, when investigators raised red flags.

In March, state officials in the Division of Workers' Compensation confirmed that Security Drywall II lacked insurance coverage. Soon after, criminal investigators opened a separate inquiry, which is still pending.

Security Drywall did not return a call from the Times Monday.

Beyond the insurance issues, Matthews detailed other allegations about Security.

Neither McQuiston nor his employees could explain what happened to the metal guards placed across the opening of the elevator shaft, as required by federal safety laws, Matthews said.

Matthews also said he thought that Security employee Lydia Crespo lied about Escobar.

On one hand, Crespo said she had told Escobar not to enter the home where he fell and claimed she to be unaware he was inside, Matthews said.

But Crespo also told him she accompanied Escobar as he walked through the house surveying the work that needed to be done.

"Lydia was there and explained to me that a worker fell," Matthews said. "She said she had brought a gentlemen in to a get a bid . . . and she was showing him around."

During his own two-hour deposition on Friday, Escobar answered questions on everything from his job in Alamo, Texas, in 1976 to his spider bite in 2000 to the immigration status of the family who has cared for him since he was released from the hospital.

And, no, Escobar said, he was not drunk or hung over, nor did he bring alcohol to the job site, as Crespo claimed.

"Not me," Escobar said through a translator. "In the morning all I have is coffee and a honey bun."

Through all the questioning, Escobar, a legal U.S. resident, has remained stubbornly chipper and focused on making money to send to his family in Tamaulipas, Mexico. On the way out of the conference room Friday, he even told Matthews, "I just want to go back to work."

"Maybe you will have a job for me?"

[Last modified May 2, 2006, 02:56:12]