Woman severely injured in chimp attack may be forced to accept workers comp instead of pursuing civil lawsuit

News of workers comp oddities and “what-were-they-thinking” stories often involves what one blogging attorney calls “sexy,” as in dramatic:

“The high drama of catching a worker on video water skiing when they claim to need a cane to walk. Using night vision photography to catch a worker moving tools out of his truck.
“Every so often the 10 o’clock news will show a worker being led to jail in handcuffs.”

That’s from Julius Young’s “Workers Comp Zone” post back in August 2007.  He goes on to describe problems within the industry itself, which we’ll return to in a later post, but today let’s look at a strange recent event, one in which the injured party is not seeking workers comp benefits.

Instead, a woman who may be determined to have been the injured party’s employer is seeking to have the injury classified as work related.

Typically, in the types of stories that Young calls sexy, we hear tales of workers who exaggerate the extent of their injuries, or get hurt away from work then hide the injuries until they’re back on the job. That’s not the case, here.

According to the AP and USA Today, Sandra Herold operated a tow-truck company in Connecticut called Desire Me Motors. She also owned a 200-pound chimpanzee named Travis that served as a sort of mascot for the company.

In February, Herold was having trouble getting Travis back inside her home, which also houses a company office. Herold asked Charla Nash (described as both a friend and an employees) to help “help lure him back into her house in Stamford.”

The news accounts don’t explain exactly what happened next, but whatever it was Nash was severely injured. USA Today says Nash was “mauled and blinded.” The AP says Travis went “beserk” and that the “animal ripped off Nash’s hands, nose, lips and eyelids,” and that Nash “remains in stable condition at the Cleveland Clinic.”

Subsequently, says the AP, “Nash’s family filed a $50 million lawsuit against Herold, saying she was negligent and reckless for lacking the ability to control ‘a wild animal with violent propensities.’ ”

Here’s where it gets really interesting. Herold’s attorney, says USA Today, “is arguing that the attack should be treated like a worker’s compensation claim, which would severely limit monetary damages.”

The attorney, Robert Golger, according to AP, “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.”

Perhaps worse for Nash, not only did Herold’s home have a company office but also “Nash fed Travis, cleaned his play area and purchased his supplies as an employee, Golger contends.”

At stake, of course, is who pays for Nash’s injuries. As USA Today says, “If the court should agree, the owner would be insulated from personal liability in the case,” meaning the $50 million suit against Herold would go away, and Nash would have her injuries administered under workers’ comp provisions. Says the AP: “Under workers’ compensation, Nash would have her medical bills paid for by the employer’s insurance and would receive partial wage replacement, but would not get any money for pain and suffering that makes up a large part of jury awards in civil cases. Workers typically receive 65 to 75 percent of their wages.”

The AP also quotes John Mastropietro, chairman of the Connecticut Workers Compensation Commission, as explaining, “It’s a steady smaller income that would be enormously dwarfed by a successful civil suit.”

“Matt Newman, attorney for Nash’s family, said he disagrees with the argument but declined further comment.”

However, at least one observing attorney is pretty upset. Michael Phelan, writing at InjuryBoard.com (“Are Enemies of 7th Amendment Outraged About This Frivolous Defense?”), sees larger implications.

“Let’s see if the insurance industry-sponsored lobbyists who call themselves tort reformers hold any press conferences or buy any advertisements to criticize the frivolous defense being put forth in the case where the pet chimpanzee ripped the face off of a woman,” writes Phelan in an October 15 post. “I’m not going to hold my breath waiting because this frivolous legal maneuver benefits the defendant chimpanzee owner’s insurance company. Consequently, I don’t expect any outrage from the so-called tort reformers. They only seem to become outraged when trials guaranteed by the Seventh Amendment to the Constitution benefit individual citizens.”

Phelan summarizes thusly: “Here’s the good news. We don’t need tort reform or any other sweeping government intervention into the legal system in order to address this or any other case. The system will likely sort this case out. For the most part, we have excellent trial judges and responsible jurors in this country. I predict that this workers’ compensation plea will not succeed.”