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Suits target safety violations to bypass comp

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Injured workers and their families increasingly are turning away from the “Grand Bargain” of the U.S. workers compensation system and heading to court, particularly targeting employer actions deemed willful violations of workplace safety rules.

While lawsuits over workplace injuries are not new, a perception that workers comp benefits are deteriorating has resulted in more legal challenges, experts say.

“If it’s not a concerted effort, it’s a collective effort by the plaintiffs bar,” said Phillip Russell, a Tampa, Florida-based attorney with law firm Ogletree, Deakins, Nash, Smoak & Stewart P.C.

“It has been a trend that became obvious over the past two years that more and more cases are being filed across the board trying to get around the exclusivity bar.”

Employers agree to provide compensation to workers injured on the job in exchange for immunity from lawsuits because workers comp is the exclusive remedy available to injured workers, a legal pact known as the Grand Bargain.

Willful Violations

“There have been a number of instances in various parts of the country where plaintiffs attorneys have attacked exclusive remedy because there has been this notion, whether it’s true or not, that the workers compensation benefits are no longer adequate to properly compensate injured workers,” said Albert Randall, an attorney with Baltimore-based law firm Franklin & Prokopik P.C. “Because of benefits being artificially low, at least according to plaintiffs attorneys, they’ve tried to use any opportunity they can to pierce the exclusivity aspect and to try to find new ways to sue in court.”

Intentional tort is an exception to workers comp exclusivity and is the primary tool used lawsuits against employers, experts say. In such cases, the plaintiffs must demonstrate the employer acted intentionally or deliberately, or was virtually certain that its actions would result in injury or death.

Last year, in Braase v. Battelle Energy Alliance L.L.C., the U.S. District Court for Idaho in Boise considered a case against Idaho Falls, Idahobased Battelle Energy Alliance L.L.C. that invoked the intentional tort exception. Plaintiff Steve Braase was a health physicist technician at the Battelle-operated Idaho National Laboratory when he said he was exposed to radioactive dust while repackaging fuel plates, court records show. Mr. Braase brought a lawsuit against Battelle, which the employer sought to have dismissed, citing exclusive remedy under Idaho’s workers compensation act.

Idaho’s statute provides an exception from the workers comp exclusivity rule “where the injury or death is proximately caused by the willful or unprovoked physical aggression of the employer, its officers, agents, servants or employees,” the ruling said. Mr. Braase alleged that the employer’s instructions to continue working with the fuel plates even after he expressed safety concerns was a willful act. The court found Mr. Braase had provided sufficient evidence to overcome the employer’s motion to dismiss the case.

Each state has developed different standards on what triggers an intentional tort. In some states, the standard is “substantial certainty” or “virtual certainty” that an employer knew that an employee was likely to be injured. A willful violation handed out by the U.S. Occupational Safety and Health Administration is often used as evidence of intent.

In Crippen v. Central Jersey Concrete Pipe Co., decided in 2003 by the New Jersey Supreme Court in Trenton, New Jersey, the court explored the idea of whether a previous OSHA citation against the company and the company’s failure to correct the cited hazards demonstrated an intentional tort in the death of one of its employees in a workplace accident. The court found the citations were one factor in the overall determination, but not a dispositive factor, Mr. Randall said.

“There have been a couple of instances where a violation of OSHA regulations has been deemed sufficient, although it usually is part of a larger context of circumstances and where you have an employer that’s acting with substantial certainty that an employee is going to be injured,” said Steven Siros, an attorney with Chicago-based law firm Jenner & Block L.L.P. “There’s usually some sort of exigent circumstance where courts have relied on OSHA willful violations in the past to conclude, in addition to other facts, that there was an intentional tort committed.” Willful violations are often justification for lawsuits in the first place.

“An OSHA citation is not admissible for liability, but it is, practically speaking, a substantial motivator for the plaintiff’s lawyers to file a personal injury case,” said Mr. Russell. “The theory is that if the government sees enough there for a willful violation, then a judge or jury may see enough to find virtual certainty, or whatever the standard is for getting around exclusivity in whatever state you are in.”

For employers, said Mr. Russell, this means they must be vigilant about workplace safety and health programs with an eye toward not just complying with OSHA standards but also protecting themselves from expanded liability in the form of personal injury lawsuits.