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Workers' Compensation

Larson’s Spotlight on Recent Cases: After 2010 Oklahoma Statutory Amendment, “Substantially Certain” Doctrine No Longer May Be Utilized to Establish Intentional Tort Claim Against Employer

Larson's Spotlight on Intentional Tort, Increased Risk Doctrine, Job Termination, and Independent Contractor. Larson's surveys the latest case developments that you need to know about. Thomas A. Robinson, the staff writer for Larson's Workers' Compensation Law, has compiled the list below.

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US: After 2010 Oklahoma Statutory Amendment, "Substantially Certain" Doctrine No Longer May Be Utilized to Establish Intentional Tort Claim Against Employer

Intentional injury inflicted by the employer on an employee may be made the subject of a common-law action for damages on the theory that, in such an action, the employer will not be heard to say that the intentional act was an "accidental" injury and so under the exclusive provisions of the compensation act. The common-law liability of the employer in most jurisdictions cannot, however, be stretched to include accidental injuries caused by the gross, wanton, willful, reckless, culpable or malicious negligence, or other misconduct of the employer short of genuine intent to cause injury. Nor is it enough merely to allege such intent; there must be alleged facts constituting an actual and deliberate intent to bring about injury.  About a dozen jurisdictions have adopted a broader definition of "intentional." Borrowing a concept from the tort world, those states have determined that intent is broader than a desire to bring about physical results. It extends not only to those consequences that are desired, but also to those that the actor believes are substantially certain to follow from what he does.

Prior to a 2010 amendment to 85 Okla. Stat. § 302, Oklahoma was among the dozen states utilizing the "substantially certain" rule for intentional tort actions filed against employers. A federal court, construing that amendment, recently dismissed a civil action filed by the personal representative of a 20-year-old employee who was dispatched by his employer to perform work on the HVAC equipment on the roof of a customer during a blizzard and who died from injuries sustained when he fell through a skylight at the facility.  The court held that plaintiff's allegations that the employer directed the young worker to service the equipment in blizzard conditions, during a FEMA-declared state emergency, on a roof where the worker would not be able to see the location of skylights, where another employee of the facility had earlier fallen through a skylight on the same roof, and where the employer knew or should have known that the skylights would be concealed by snowdrifts and more fragile than usual, due to the weight of the snow were, nevertheless, insufficient to state a cause of action for intentional tort against the employer.

See Estes v. Airco Serv., Inc., 2012 U.S. Dist. LEXIS 72134 (N.D. Okla., May 24, 2012).

See generally Larson's Workers' Compensation Law, § 103.04.

MO: Divided Supreme Court Reverses Award of Benefits to Employee Injured Making Coffee in Office Kitchen

The Supreme Court of Missouri, in a split decision, construing the state's version of the "increased-risk" doctrine, on Tuesday (May 29) reversed an award of workers' compensation benefits to an employee who slipped off her sandal, fell, and injured her pelvis while making coffee in the employer's office kitchen.  That the injury occurred while the employee was "on the clock" during normal office hours and while she was following the office's custom of making another pot for others since she had taken the last cup did not bring the risk of injury within the compensable range, held the majority of the state high court.  Observing that there were no irregularities or hazards on the kitchen's floor, that the floor was not wet, and that there was no trash or debris on the floor at the time, the majority indicated that the employee's injuries had come from a hazard or risk unrelated to her employment to which she would have been equally exposed outside of and unrelated to her employment in her normal non-employment life.

See  Johme v. St. John's Mercy Healthcare, 2012 Mo. LEXIS 101 (May 29, 2012).

See generally Larson's Workers' Compensation Law, § 3.03.

VA: Injured Worker Terminated for Poor Performance Receives Additional Disability Benefits; Inability To Do Job Was Caused By Original Injury

A Virginia appellate court recently affirmed a decision by the state's Workers' Compensation Commission that held a worker's termination for poor work performance did not justify a forfeiture of temporary total disability benefits under Va. Code Ann. § 65.2-510(A); memory problems and day-long headaches that interfered with her work resulted from her original injury. The worker's "misconduct" was not voluntary, said the Commission and the appellate court agreed. For additional discussion, see 

See Pier 1 Imports v. Wright, 2012 Va. App. LEXIS 177 (May 29, 2012).

See generally Larson's Workers' Compensation Law, § 84.02.

LA: Injured "Bouncer" Could Be Employee, Not Independent Contractor

A Louisiana appellate court recently held that a "doorman" at a bar, who checked identifications and occasionally "removed" unruly patrons, could have been an employee of the bar and not an independent contractor.  Accordingly, it reversed summary judgment in favor of the bar and remanded the case for further consideration as to the issue of the employment relationship.  The bouncer sustained injuries when he "assisted" in the departure of a patron who had inappropriately walked upon a stage where a band was playing.  The appellate court acknowledged that there was some evidence of an independent contractor relationship-the bouncer had signed a contract indicating his status was that of independent contractor did not control.  The purported employer also provided the bouncer with an annual Form 1099 and did not withhold taxes or social security from the bouncer's pay.  On the other hand, the court noted that the employer paid the bouncer on an hourly basis, the bouncer worked regular hours, and there was evidence that the employer controlled the bouncer's activities.  Given the conflict in evidence it was error to grant summary judgment in favor of the bar.

See Theodore v. Krazy Korner, 2012 La. App. LEXIS 719 (May 23, 2012).

See generally Larson's Workers' Compensation Law, § 63.01.

Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.

Larson’s Workers’ Compensation Law

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