Mother of worker considers lawsuit

Debi Koehler-Fergen knows money won't bring her son back.

"It's more about the justice for Travis," she said, referring to her 26-year-old son, who died with another worker in a sewer pit at The Orleans.

She hasn't decided whether she will sue the hotel or its corporate parent, Boyd Gaming Corp., but if she does, she will face an uphill battle.

The reason: workers' compensation.

"The bottom line is you can't sue your employer" for a work-related death, said Gerald Welt, a Las Vegas workers' comp lawyer who has represented injured workers for three decades.

That legal protection for employers was created when workers' comp was born about a century ago in the midst of the industrial revolution. As a trade-off, injured employees were guaranteed compensation without having to prove employer negligence. Even employees who cause their own accidents receive benefits without a fight.

The compromise was designed to speed benefits to injured workers while limiting the number of lengthy, costly legal battles.

"It's a trade-off, and most of the time it works," Welt said.

Workers' comp laws vary by state, but they all adhere to that basic principle. Nevada's laws are among the toughest, Welt said.

He told the story of a Detroit lawyer coming to Nevada for a workers' comp case. "He said, 'Employers in the state of Nevada have the right to kill their employees,'" Welt said, adding that the Detroit lawyer was exaggerating.

The law does provide a few exceptions to the prohibition on lawsuits in workplace deaths, including a death because of gross negligence or an intentional act to harm, said Dan Schwartz, a workers' comp defense lawyer since 1993.

A plaintiff would have to prove one of those conditions to a judge before the lawsuit could proceed, and the burden of proof would be high, he said.

"It's a difficult row to hoe," Schwartz said.

In The Orleans incident, Travis Koehler and co-worker Richard Luzier, 48, died because they were untrained, unprepared and unequipped to work in and around the sewer pit and its hazardous gases, according to an investigation by Nevada's Occupational Safety and Health Administration.

OSHA found the hotel violated nine safety regulations and fined the company $185,000, the third-largest fine in state history.

Under workers' comp, employers must pay up to $5,000 in burial costs for an employee who dies on the job.

Koehler-Fergen said the company paid a substantial chunk of her son's funeral costs. But neither she nor Koehler's fiancee, Krystle Johnson, are entitled to receive any more benefits under workers' comp.

Spouses, such as Leslie Luzier, receive two-thirds of the workers' pay for a lifetime. If they remarry, they receive a two-year lump sum, and the payments stop.

David Snow, a co-worker who survived the incident, and Koehler-Fergen declined to say whether they would sue, but they agreed that no amount of litigation would make the situation right.

"In the end, it's not about money. It's about justice," Snow said.