June 15, 2012

Annals of Compensability: Biting the Hand that Shouldn't Be Feeding You

Wallace Weatherholt, AKA Captain Wally, was leading a family on an air-boat tour of the Everglades. To liven things up, the 63 year old captain apparently dangled some food over the side of the boat. An alligator obligingly leapt out of the water to consume the (illegal) snack and took off Wally's hand in the process. To the gator, the hand was part of the snack - and who could argue with that? Unfortunately for the gator, authorities killed it to retrieve the hand, although doctors were unable to reattach it.

We will not try to determine which creature acted with greater stupidity, although it's clear that the gator did only what gators have done for millions of years, while Wally did what thinking humans are not supposed to do. (Feeding gators is illegal - a misdemeanor - for somewhat obvious reasons.)

Wilful Intent?
The issue here is compensability: Captain Wally was clearly injured "in the course and scope of employment" - but is this a compensable injury? Did Captain Wally cross the line to "wilful intent" and thus disqualify himself from workers comp benefits (which, by the way, will be substantial, given the severity of the injury and the permanent loss of a hand)?

This might sound like "wilful intent" but it may well prove compensable. The issues for review include:
- Did Captain Wally's employer have a written policy against feeding alligators?
- Was the enforcement documented? Were their punitive consequences for the act?
- Has Captain Wally's unsafe practice been observed in the past and if so, what was done about it?

If Captain Wally's employer turned a blind eye to this practice, which, parenthetically, was good for business, the employer and the insurer will own the injury. Unless the prohibition is an explicit condition of employment, in all likelihood the employer will be on the hook for the loss. As for Captain Wally, he, too, will be on a hook of a different sort: he will have a permanent reminder of his ill-advised and illegal feeding of a primitive creature who was minding his own business until an attractive snack caught his impassive eye. I do feel for Captain Wally, but hands down, my greater sympathies are with the gator.



At least next time Captain Wally does that he will hopefully use a hook instead of a hand!

I don't know that FL has a safety vilation as a defense against WC liablity.

The injury was not wilful in my opinion. It may be an assumption of risk (albeit a stupid one)but that is not a defense in WC since WC is no fault.

I have heard of claims where by a saw operator lost fingertips in PA more than once where a scheduled award is made. The injured worker had debts to a bookie. That is wilful intent.

This captain (unless not cover by WC i.e. sole proprietor) will get the WC benefits.


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About this Entry

This page contains a single entry by Jon Coppelman published on June 15, 2012 10:00 AM.

Risk, creeping catastrophics, fraud, obesity, pachydermodactyly, and more was the previous entry in this blog.

New York Comp: Fully Documented Downward Spiral is the next entry in this blog.

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