Washington: Trooper May Proceed in Tort Against Employer for Taser Injury

Acknowledging that in light of a decision by the Washington Supreme Court, it had erred in holding that the deliberate intention exception to workers’ compensation exclusivity was to be “liberally interpreted,” a state appellate court held that even under a narrow interpretation of the exception a state trooper had raised factual issues as to whether his employer, the state police, had actual knowledge that an injury was certain to occur when the trooper was shot by a Taser during a training exercise. Noting that under the Supreme Court’s ruling, an injury had to be “symptomatic,” the lower court indicated the Supreme Court had not said that an employee’s injuries must reach a particular level of severity before constituting an “injury” under the workers’ compensation laws. Here, the trooper’s skin had been pierced by the Taser’s probes. The court observed that the Taser manufacturer warned of injuries that typically occurred when the Taser was used. Injury was certain, said the appellate court.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.

See Michelbrink v. Washington St. Patrol, 2015 Wash. App. LEXIS 2912 (Nov. 24, 2015) [2015 Wash. App. LEXIS 2912 (Nov. 24, 2015)]

See generally Larson’s Workers’ Compensation Law, § 103.04 [103.04]

For a more detailed discussion of the case, see http://www.workcompwriter.com/washington-appellate-court-again-says-tasered-trooper-tort-action-not-barred-by-exclusive-remedy-defense/

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

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