Most people do not WANT a claim to be "work-related" however, an attorney representing the owner of a chimpanzee that mauled and blinded a Connecticut woman in February claims the attack is a work-related incident and said her family's case should be handled like a workers compensation claim, according to The Associated Press. The reason for this is that the chimp owner wants to take advantage of the workers compensation "bar," this is part of the statute prohibits (bars) an employee from directly suing an employer.
If the case is viewed as a workers comp claim, compensation would be severely limited and shield the chimp's owner from personal liability. If this argument prevails, (I predict it won't.) the workers compensation benefits would be the exclusive remedy for the injury. The chimp attacked the victim, a friend and employee of its owner, ripping off the woman's hands, nose, lips and eyelids. The victim remains in stable condition at the Cleveland Clinic in Ohio. The victim's family filed a $50 million lawsuit against the chimp's owner, claiming she was negligent and reckless for not having the ability to control "a wild animal with violent propensities."
According to the chimp owner's attorney, the victim was working as an employee of his client's tow truck company at the time of the attack. He claims that the chimp was an important part of the business, stating his image was on the wrecker, he appeared at the garage daily and he was present for numerous promotional events. The residence where the attack took place is a business office of the company, according to the attorney, who states that the workplace should be subject to the provisions of the Connecticut workers' comp statutes. Under Connecticut workers' comp regulations, the victim would have her medical bills paid for by the employer's insurance and would obtain partial wage replacement, but would be denied any money for pain and suffering that comprises a large portion of jury awards in civil cases.
Author: Rebecca Shafer, J.D. consults for mid-market and national accounts focusing on project management, risk management assessments, data review, benchmarking, and development of Workers' Compensation and Injury Management Programs. Projects focus on development of training and education programs, document design, evaluation and integration of insurance claims administration and TPA services. Contact her at: RShaferB@ReduceYourWorkersComp.com Budding writer? We are accepting articles. Contact us at: Info@WorkersCompKit.com.
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workman’s comp issues. ©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
An offshore drilling worker's tort claim against a drilling company was barred by exclusive remedy provisions of the Longshore Act — applying the "Borrowed Servant" rule. An employee referred to as "Jackson" was hired as a mechanic by Producers Assistance Corporation (PAC), a company supplying workers to businesses, including Total E&P USA, Inc. ("Total"), engaged in offshore drilling.
Jackson was immediately assigned to the company Total E&P USA, Inc., and spent seven months on rotating 14-day hitches. While on the platform, Total provided Jackson with sleeping and bathing facilities in permanent quarters, three meals a day, and a Total uniform bearing his name. Jackson brought bring some of his own tools and some specialized tools were provided. Jackson was the only mechanic onboard. He received assignments through Total's computer system, which automatically created a list of preventative maintenance tasks he was to perform. No Total employee oversaw Jackson's work. Rather, Jackson was directed to use his judgment and experience to determine if the computer printout was accurate and, if accurate, which tasks should be completed during a given shift.
Jackson reported his hours to PAC and was paid by PAC. He sustained injuries while working alongside Total's employees. A cable securing a large pump snapped under stress and struck Jackson in the legs. Jackson sought and received workers compensation benefits under the Longshore Act from PAC and then filed suit in federal district court against Total alleging negligence. The district court granted Total's motion for summary judgment, finding that Jackson was a borrowed employee whose tort claim was barred by the exclusive remedy provisions of the Longshore Act. Jackson appealed.
In Jackson v. Total E&P USA, Inc., 2009 U.S. App. LEXIS 18119 (5th Cir., August 13, 2009), the Fifth Circuit Court of Appeals agreed with the district court and affirmed. Citing Brown v. Union Oil Co. of Cal., 984 F.2d 674, 676 (5th Cir. 1993), the Fifth Circuit indicated that there were nine factors to be considered: (1) who had control over the employee and the work he was performing, beyond mere suggestion of details or cooperation; (2) whose work was being performed; (3) was there an agreement, understanding, or meeting of the minds between the original and the borrowing employer; (4) did the employee acquiesce in the new work situation; 5) did the original employer terminate his relationship with the employee? (6) who furnished tools and place for performance; (7) was the new employment over a considerable length of time? (8) who had the right to discharge the employee; and (9) who had the obligation to pay the employee.
The court stressed not one of these factors was decisive. The central question in borrowed servant cases was whether someone had the power to control and direct another person in the performance of his work, and that under the facts, factors (1), (2), (4), (6), and (7) all supported the district court's finding. The court indicated that here PAC was operating essentially as a placement agency, that it had no control over the work environment and that all work was directed by and for the benefit of Total.
The court indicated that while PAC did not relinquish all control over Jackson, that was not a deciding factor. The court stated while Jackson was on the platform, PAC's control over him was minimal. Considering all the factors present in the case, Jackson was a borrowed employee and his tort action against his borrowing employer was barred by exclusivity. See generally Larson's Workers' Compensation Law, § 67.01, 67.05, 67.06, 100.01, 111.01, 111.04.
Tom Robinson, J.D. is the primary upkeep writer for Larson's Workers' Compensation Law (LexisNexis) and Larson's Workers' Compensation, Desk Edition (LexisNexis). He is a contributing writer for California Compensation Cases (LexisNexis) and Benefits Review Board – Longshore Reporter(LexisNexis), and is a contributing author to New York Workers' Compensation Handbook(LexisNexis). Robinson is an authority in the area of workers' compensation and we are happy to have him as a Guest Contributor to Workers' Comp Kit Blog. Tom can be reached at: compwriter@gmail.com. http://law.lexisnexis.com/practiceareas/Workers-Compensation
FREE tools to try: WC Calculator: www.reduceyourworkerscomp.com/calculator.php TD Calculator:www.ReduceYourWorkersComp.com/transitional-duty-cost-calculator.php Follow Us On Twitter: www.twitter.com/WorkersCompKit Do not use this information without independent verification. All state laws vary.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
A driver sued his employer in tort, alleging that because the employer negligently destroyed and failed to preserve key parts of a truck the driver was operating at the time of a work-related vehicular accident, the driver was prejudiced in his tort suit against third parties who manufactured the truck and its components. In relevant part, the driver alleged that after the accident the employer failed to preserve the seat belts, the brakes, "black boxes," and other items of the truck he had been driving.
The driver also alleged that at the time of the actions taken by the employer, the driver was severely injured and unable to speak due to the accident. The employer contended that the driver's claims against it were barred by the exclusive remedy provisions of the Pennsylvania Workers' Compensation Act (Act) [77 Pa. Stat. Ann. ß 481(a)] and the trial court agreed, dismissing the case against the employee.
In Minto v. J.B. Hunt Transp., Inc., 2009 PA Super 73, 2009 Pa. Super. LEXIS 88 (April 17, 2009), the appellate court reversed the trial court, observing that in as much as the former employee had not sought damages from the employer for physical injuries arising out of and in the course of his employment, but rather had alleged economic damage as a result of the actions of the employer in destroying evidence that could have considerably damaged his product liability case against third parties, the tort claim against the employer was not barred by exclusivity. See generally: Larson's Workers Compensation Law § 100.03
Author: Tom Robinson, J.D. is the primary upkeep writer for Larson's Workers' Compensation Law (LexisNexis) and Larson's Workers' Compensation, Desk Edition (LexisNexis). He is a contributing writer for California Compensation Cases (LexisNexis) and Benefits Review Board – Longshore Reporter(LexisNexis), and is a contributing author to New York Workers' Compensation Handbook(LexisNexis). Attorney Robinson is an authority in the area of workers' compensation and we are happy to have him as a Guest Contributor to Workers' Comp Kit Blog. Tom can be reached at: compwriter@gmail.com. http://law.lexisnexis.com/practiceareas/Workers-Compensation Click on these links to try it for yourself. WC Calculator www.ReduceYourWorkersComp.com/calculator.php TD Calculator www.ReduceYourWorkersComp.com/transitional-duty-cost-calculator.php WC 101 www.ReduceYourWorkersComp.com/workers_comp.php Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs. ©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
Tom Robinson, J.D., a legal expert from Lexis Nexis, reported on a case in which the exclusivity defense did not prevent the employee from filing a negligence action against the employer. Two workers were employed as film inspectors on the overnight shift. One of them, Streng, was suspended for three days without pay because the other worker, Duffy, repeated to various others Streng's excuse for returning late from a meal break: Streng had fallen asleep in his car.
Streng allegedly told Duffy he was going to "get" him. Streng asked for and received a transfer, but several weeks later, the two again encountered one another in a courtyard outside the office and Streng allegedly renewed his threat, saying, "I know where you live." Faced with conflicting stories about the altercation, a supervisor sent both workers home for the day. Streng was held by security personnel until Duffy left the premises. Nonetheless, Streng arrived at Duffy's house first and assaulted him.
Duffy filed a tort claim against the employer and others, contending it was liable for the physical injuries and other damages he had sustained. The employer contended that the tort action was barred by the exclusive remedy provisions of the state's workers' compensation law. In Duffy v. Technicolor Entertainment Servs., Inc., 2009 Cal. App. Unpub. LEXIS 837 (January 29, 2009), a California appellate court, in an unpublished decision, refused to throw out the tort case on exclusivity grounds, found unconvincing the employer's argument that Duffy's injuries grew out of a workplace dispute, and determined instead that there were issues of fact as to the employer's negligent retention of Streng.
According to the court, reasonable people could infer from Streng's prior conduct that he might be a real, present, and apparent threat of harm to Duffy and others. The negligence claims were appropriately left for the jury. The court, therefore, let stand a $1 million verdict in the case. See Larson's Workers' Compensation Law, Ch. 103, § 103.07 for more information or go to LexisNexis Workers' Compensation Law Center. This entry was written for Workers' Comp Kit Blog, and we appreciate the helpful insight this brings to our readers.
Tom Robinson, J.D. is the primary upkeep writer for Larson's Workers' Compensation Law (LexisNexis) and Larson's Workers' Compensation, Desk Edition(LexisNexis). He is a contributing writer for California Compensation Cases(LexisNexis) and Benefits Review Board – Longshore Reporter (LexisNexis), and is a contributing author to New York Workers' Compensation Handbook(LexisNexis). Attorney Robinson is an authority in the area of workers' compensation and we are happy to have him as a Guest Contributor to Workers' Comp Kit Blog. Tom can be reached at: compwriter@gmail.com. Try the WC Cost Calculator to show the REAL COST of work comp. Look at WC 101 for the basics about workers comp. Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs. ©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
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