October 15, 2009

Health Wonk Review; also, the crazed chimp case and workers comp

It's Health Wonk Review week, and the happenings are at Hank Stern's place this week. Please visit InsureBlog for the Lean, Mean, and Clean edition of Health Wonk Review.

Was chimp mauling work-related?
In other news this week, who can forget last February's horrific mauling by Travis the chimpanzee that left Charla Nash disfigured and blind? Charla's extensive injuries are still being treated at the Cleveland Clinic, which specializes in reconstructive surgery and is noted for being the hospital that performed the nation's first face transplant. Her sister keeps an online diary of her progress at Friends of Charlie Nash. Charla's family has filed a $50 million lawsuit against the primate's owner for " ...negligence and recklessness for owning "a wild animal with violent propensities, even though she lacked sufficient skill, strength and/or experience to subdue the chimpanzee when necessary."

Yesterday, we learned that the attorney for Sandra Herold, the chimp's owner, asserts that the injuries sustained were work-related and should be treated as a workers compensation claim:

"But Herold's attorney, Robert Golger, says in recent court papers that Nash was working as an employee of Herold's tow truck company, Desire Me Motors, at the time of the attack. He argues that Travis was an integral part of the business, saying his picture was on the wrecker, he appeared at the garage daily and he attended numerous promotional events.

The house where the attack occurred is a business office of the company, Golger said. Nash fed Travis, cleaned his play area and purchased his supplies as an employee, Golger contends."

If the link to work is successfully established, it is possible workers comp could be determined to be Charla's exclusive remedy. This may force the family's hand because, according to Connecticut law, a workers compensation claim must be filed within one year of the date of injury.

Workers comp is a no-fault system. While there have been questions raised about whether Herold was negligent in keeping such a dangerous wild animal, employer negligence would not pierce the exclusive remedy shield - just as negligence on the part of an employee would not disqualify an employee from benefits. In most states, an employer's conduct would have to rise to a standard of deliberate intent to injure an employee to pierce exclusivity.

Workers comp covers wage replacement and medical care, but it differs from civil remedies in that there is no compensation for pain and suffering. In the case of severe and egregious injuries, this can seem unfair, but it is part and parcel of the workers compensation pact - if injured on the job, the employee forgoes the right to sue the employer in exchange for a guarantee that the employer will provide medical care and wage replacement in accordance with a state's statutory benefits. We'll have to watch how this plays out in terms of establishing the work connection.

| 3 Comments

3 Comments

This is a very interesting case and shows a very creative defense. I would, however, suggest the author to check their facts. There are a very limited number of states that allow the exclusive remedy to be pierced under the deliberate intent theory. The most egregious is WV, a state frequently described as the nations's "Judicial Hell Hole".

CT does recognize dual capacity if, "if it possessed a second persona so completely independent from and unrelated to its status as employer that by established standards the law recognized that persona as a separate legal entity, had not been recognized as an exception to the exclusivity provision of the Act." - Larsen.
This arguement should be made in that this case that the owner of an animal should have a high standard of care for whomever comes on the property.

In order for this to be pursued through WC, one would also need to show the injured party, Charla, as an employee. I fail to see that connection made here.

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This page contains a single entry by Julie Ferguson published on October 15, 2009 7:53 AM.

The Swine Flu, the ADA and Lawyers on the Prowl was the previous entry in this blog.

Not Exactly a Rush to Judgment is the next entry in this blog.

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