December 8, 2009

"Exclusive Remedy" for Losing Your Face?

Usually employers try to prove that someone is not an employee, in order to avoid the workers comp liability. (Think "independent contractor.") Today we examine a truly horrific case where the employer is desperate to establish compensability under workers comp, so that a grieviously injured employee can only collect comp benefits. By using the "exclusive remedy" provision of comp, the employer wants to avoid liability for pain and suffering. Some pain, some suffering!

Sandra Herold runs a towing company out of her house in Stamford, Connecticut. The company had a mascot - a 200 pound chimpanzee named Travis, who lived with Herold. I do mean lived with her: according to reports, they shared wine at candle lit dinners and shared a bed as well (no further comment possible).

Charla Nash occasionally worked for Herold, in an unspecified capacity. In February 2009, Herold called Nash and asked her to come by, as she was having trouble controlling Travis. As soon as Nash arrived, Travis attacked her, ripping off her face (literally). She lost her eyes, nose and mouth in the horrendous attack. (While images of her ravaged face are available on the internet, I do not recommend viewing them.) Police eventually were able to shoot the chimp.

Nash somehow survived the attack and is suing Herold for $50 million; a second suit against the state of Connecticut seeks an even larger amount, alleging negligence in allowing Herold to keep the animal in her home. (It is worth noting that no criminal charges have been brought against Herold.)

Exclusive Remedy?
Herold's first line of defense is establishing workers comp as the "exclusive remedy." She claims that Nash is an employee and thus is prohibited from suing her "employer." While it may be premature to judge this particular strategy, it seems highly unlikely that Herold will prevail. Even if she can show that Nash was on the payroll, it is clear that Nash was not working on the day of the attack; Herold had called her and asked her to come over to help with Travis. And even if it can be proven that Nash occasionally helped out with Travis, it is unlikely that her job description included the duties of an animal trainer (for which she is not qualified).

In the unlikely scenario that this case is limited to workers comp, the claim will run in the multiple millions: comp will have to pay for Nash's humongous medical bills - including a face transplant - and support her astronomical living expenses. This is a permanent total injury, so the indemnity portion may also be substantial. (If I were Herold's comp carrier, I would aggressively deny this claim as not being work related.)

Herold is banking on a judicial process that finds having your face ripped off by a 200 pound beast is simply part of the job, part of the "assumption of risk" we all accept simply by showing up for work. (If that were the case, how many of us would be willing to report to work?) Herold's house-of-cards defense will collapse with the most humble of gestures: Nash revealing her destroyed face to a jury.

Exclusive remedy is an important concept, one well worth preserving, but in this situation, it has no place. Herold must be held accountable for the actions of her late companion, Travis - anything less would be a travesty.

| 3 Comments

3 Comments

Why not accept it as workers comp as the WC insurer has most likely far deeper pockets than the employer, and the liability policy of the employer assuming one is in place may have limits.

Interesting twist to a most unusual highly-publicized incident and injury. Never considered WC as possible remedy because I had not heard the injured to be employed by this employer. Certainly, WC has deeper pockets which would pay for the incredible medical expenses and maintenance. Such payment would not be healthy for WC system and spreading cost to other employers. Certainly, the tort feasor's attorney is looking for a hail mary pass defense. AMAZING!!

This was an amazing story of this person but I beleive that someone is at fault here. The legal system will determine who that might be once everything is said and done.

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About this Entry

This page contains a single entry by Jon Coppelman published on December 8, 2009 12:38 PM.

Fear of Talking: The Narcoleptic Dispatcher was the previous entry in this blog.

Racketeering and Comp: When the Denial of an Injury is an Injury is the next entry in this blog.

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