A number of years ago I was a member of PETA, until I learned that it did not stand for “People Eating Tasty Animals.” Earlier knowledge of that little tidbit would've saved me a ton of embarrassment, and also explain why my fundraising barbeque was such a bust.
I should never have gone with the veal.
Anywhoo, it was with great interest that I read of an effort by PETA in Maine to memorialize over 4,500 workers who were killed in a tragic accident earlier this month.
The workers were lobsters, who while being transported to their job of being delicious, were tragically killed when their transport vehicle rolled over on the highway. According to Fox News, the People for the Ethical Treatment of Animals (which it turns out is what “PETA” actually stands for – who knew?) has asked Maine officials for permission to build a gravesite to mark the location of the August truck crash. They hope to “memorialize the ‘countless sensitive crustaceans' who were killed.”
Even in the world of workers' compensation, a calamity of this magnitude is difficult to comprehend. The loss of so many innocent young workers is a tragedy indeed. Yet, we need to put emotion aside and look at the realities of the case. PETA may be looking for the state to fund this proposed memorial, and if these were compensable deaths, then a workers' compensation insurer or employer may be on the hook for this.
Some jaded workers compensation professionals will point out that the lobsters had not yet arrived at their job and were killed during what would be considered a normal commute. Therefore, their deaths might be declared non-compensable under the Going and Coming doctrine. Also, they clearly had not yet properly prepared to start their shift, lacking their bright red uniform and required tools, which in this case would be teeny forks, a lobster cracker and drawn butter.
Any attorney representing the lobsters will likely point out that their clients were in company provided transportation when the accident occurred, and therefore the commute itself would be within the course and scope of their job. This argument makes sense, since lobsters cannot drive, and hitchhiking is largely out of the question due to the lack of an opposable thumb.
There was really no mention of those lobsters who survived the crash but were injured as a result. PETA doesn't seem to want to memorialize them. The good news for those lobsters who were physically injured is that, in Maine, permanent impairment is determined using the American Medical Association's "Guides to the Evaluation of Permanent Impairment," 4th edition. That means any disability rating they receive will be more generous than in a state using the 6th Edition. Of course, I am not sure how you determine a disability level for a lobster, and settling their claim is probably problematic. Returning them to work is also a challenge, since their work is by definition, well, fatal.
And of course, we likely have those lobsters who were not injured, but were emotionally traumatized by this mass casualty event. Unfortunately, in Maine, mental injury resulting from work-related stress is not considered to arise out of and in the course of employment unless it is demonstrated by clear and convincing evidence that the work stress was extraordinary and unusual in comparison to pressures and tensions experienced by the average employee; and the work stress, and not some other source of stress, was the predominant cause of the mental injury.
The state requires that to meet that threshold, the amount of work stress must be measured by objective standards and actual events rather than any misperceptions by the employee.
I am not sure how we rate the perceptions of the surviving lobsters who saw their friends and associates die on a lonely highway. That point alone could mean their cases are in court for years, unless, of course, someone eats the plaintiff before the case can be heard.
There are those people who will think this entire exercise at evaluating lobster workplace injuries is beyond ridiculous. I would agree with that argument, but also point out that this entire discussion is no more ridiculous than the ludicrous notion of memorializing lobsters killed in a frickin' car accident.
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Robert Wilson is President & CEO of WorkersCompensation.com, and "From Bob's Cluttered Desk" comes his (often incoherent) thoughts, ramblings, observations and rants - often on workers' comp or employment issues, but occasionally not.
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