Workers compensation exclusivity has come under an increasing wave of attack in U.S. courts, as plaintiffs seek additional compensation for workplace injuries in an environment of decreasing benefits.

“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.”

As part of the Grand Bargain with American workers, employers agree to provide compensation to workers injured on the job. In exchange, employers are immune from lawsuits because workers comp is the exclusive remedy available to injured workers.

“Although the employee is guaranteed recovery, as a general matter it’s set by statute, so it’s less than sometimes you would get if you were to litigate,” said Steven Siros, an attorney with Chicago-based law firm Jenner & Block L.L.P.

“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 plaintiffs are using in 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.

Each state has developed different standards through legislation and legal precedent about 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.

“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 Mr. Siros. “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.

“A lot of these lawsuits, nobody ever expects them to go to trial. But insurers want to minimize the risk of getting in front of a jury, so they settle cases,” Mr. Russell said. “It is a very real and substantial risk to employers right now without any change to the law.”

Mr. Siros agreed, saying while many cases challenging exclusivity to date have been unsuccessful, that trend could shift.

“The more sympathetic the plaintiff is and the more egregious the facts are surrounding the particular incident, depending on the facts, you might see courts that are inclined to let them try to recover,” Mr. Siros said.

 

 

Source: http://www.businessinsurance.com/article/20170321/NEWS08/912312497/Plaintiffs-challenge-exclusive-remedy-with-intentional-tort-claims

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