Bill Filed in Okla. to Protect ‘Exclusive Remedy’ of Workers’ Comp Court

January 20, 2006

Noting that a recent Oklahoma State Supreme Court ruling could effectively eliminate the state’s “exclusive remedy” of workers’ compensation court, Oklahoma State Rep. Ben Sherrer filed legislation to prevent that from happening, the Oklahoma House of Representatives reported.

House Bill 2156 would amend the recently passed workers’ compensation law to allow employees to take civil action against an employer outside of workers’ compensation court only if the employer committed an intentional act that led to the injury.

“It’s vital that we protect the exclusive remedy available through the state’s Workers’ Compensation system,” stated Sherrer, D-Pryor Creek. “Any erosion in the system further compromises worker safety.”

Under current law, when an employee is injured at work during the course of employment, the employer is liable for the accident or death to the employee without regard to fault. In order to receive the workers’ compensation benefit, the injured employee must forego all other common law causes of action against the employer.

A long-recognized exception to this rule is when the employer has intentionally injured the employee. This standard differs from the standard of intent in tort law. In tort law, the Oklahoma court has noted that intent to cause an injury can be implied from any act or omission where a reasonable person would know or have reason to know that harm to another was “substantially certain to occur.”

In its June 2005 Parret v. Unicco Service Co. decision, the court replaced the traditional standard of intent within workers’ compensation laws to the “substantial certainty” test common in tort law when determining whether an employee could file civil litigation against their employer.

In this case, the employer, Unnico Service Co., requested several employees change the emergency lights at an Oklahoma tire plant. All of the workers turned down the assignment because the electrical currents running to the lights were still “hot.”

The employer continued to solicit help until one employee agreed to change the lights despite warnings from other employees. While changing the bulb, the employee was electrocuted and died a few days later in the hospital.

The family of the victim accepted the workers’ compensation benefit and then brought a civil action against the employer for the wrongful death of the worker under the intent exception. The employer argued that he had not purposefully killed the employee.

The court found that the employer may not have acted purposefully to kill the employee, but because the employer knew with “substantial certainty” that following the instruction would severely injure or kill the employee, the employer did intentionally injure the worker. Therefore, the family of the victim did have a common law action against the employer.

This decision means a heightened standard for additional liability. If the employer knows that a particular request is “substantially certain” to cause injury or death to the employee, the court will hold that the employer has intentionally harmed the employee.

“Oklahoma has recently taken significant steps that have resulted in lower workers’ compensation premiums, and I am concerned this recent decision could cause an increase in general liability insurance costs,” Sherrer said. “In my district, as well as across the state, there are many jobs in construction, manufacturing, and oil and gas production that have inherent substantial certainties that injuries could occur.

“Removing injuries in these fields from exclusive workers’ compensation coverage could ultimately be devastating for workers, business, and all aspects of our justice systems.”

Source: Oklahoma House of Representatives

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