Travis The Chimpanzee Attack, Worker's Comp? I Don't Think So!!!!

November 18, 2009 /24-7PressRelease/ -- Chimp Owner Asserts Workers' Comp Governs Injury Claim in Attack

Article provided by Cousins, Desrosiers, and Morizio, PC
Visit us at www.cdm-lawfirm.com

Bizarre national headlines burst out of Stamford, Connecticut, earlier this year when a pet chimpanzee savagely attacked its owner's friend, leaving her with horrific, permanent injuries.

Travis the chimp lived with Sandra Herold as a family pet. Herold called her friend, Charla Nash, to help her after Travis escaped from the house. When Nash arrived, Travis brutally attacked her. Nash almost died from her injuries, losing her hands, sight and much of her face, among other severe injuries. Travis was eventually shot and killed when he assaulted a police officer called to the scene.

Plaintiff's Lawsuit

In March, Michael Nash, the victim's twin brother and temporary conservator of her estate, filed a lawsuit in the Superior Court of Connecticut against Herold alleging strict liability, negligence and recklessness. In the complaint, Michael Nash describes his sister's physical injuries, astronomical medical expenses, pain and suffering, psychological trauma, loss of the ability to participate in life, and lost wages and benefits from her inability to return to work. The plaintiff asks for money damages, punitive damages, attorneys' fees and other proper relief on his sister's behalf, stating that he believes the judgment should reach at least $50 million.

A Surprising Defense

In response, Herold asserts that the injuries are employment related and governed by workers' compensation law. Workers' compensation is the exclusive legal remedy for most work injuries, almost always barring personal claims against the employer, unless the victim can prove the injury was intentional. Workers' compensation awards are typically much smaller than standard personal injury damages because an injured worker receives medical coverage and wage replacement, but not money for ordinary pain and suffering. However, mental injury may also be recoverable if it flows from a physical injury.

In support of her assertion that the attack was work related, Herold points to the chimp's promotional role as a mascot in her towing business, her home's dual status as an office and Nash's work tasks in caring for Travis. If it is determined that Nash was an employee of Herold and Nash's injuries arose out of and in the course of her employment with Herold, then Herold may be immune from liability in a civil lawsuit.

Right to Control Test

In Connecticut, the crucial legal question in determining whether workers' compensation is the exclusive remedy for an injury is whether there was an employment relationship between the parties, or whether the injured person was an independent contractor or had some other legal status. Connecticut applies the right to control test to answer this question, looking at whether the alleged employer had the power to control the work or, on the other hand, whether the worker could use independent professional discretion. The more the employer controlled how the work was done, the more likely it was a true employment arrangement.

The right to control is determined by the presence or absence of several factors, often referred to as indicia of employment. Some of the important factors include:
-Whether the employer carried workers' compensation insurance
-Who supplied the tools and the workplace
-Whether the work tasks were a regular part of the business
-Whether there was a contract between the parties
-Whether the worker was paid in a lump sum or with regular paychecks
-Whether the worker was paid by the hour or by the task
-Whether the employer could fire the worker
-Whether there were set work hours
-Whether the employer directed the minutia of the work
-Whether the employer issued an IRS Form W-2 (for employees) or a Form 1099 (for independent contractors)
-How the worker reported income for taxation purposes
-Whether liability insurance was provided by the employer or by the worker
-Whether typical employment benefits such as health insurance were provided
-Whether the employer required a uniform
-Whether the employer withheld social security or other government taxes

Workers' compensation attorneys and personal injury lawyers will watch with interest the outcome of the Connecticut chimp attack case. It will provide further direction in answering the complex legal question of when an employment relationship exists.

Article provided by Cousins, Desrosiers, and Morizio, PC
Visit us at www.cdm-lawfirm.com

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