Employer's policy fails to demonstrate intentional misconduct

In North Carolina, an exception to the exclusive remedy provision of workers' compensation arises when an employer intentionally engages in misconduct knowing it is substantially certain to cause serious injury or death to a worker.

Case name: Jackson v. ES&J Enterprises, Inc., No. COA11-225 (N.C. Ct. App. 02/07/12, unpublished).

Ruling: In an unpublished opinion, the North Carolina Court of Appeals dismissed a worker's estate's wrongful death action because workers' compensation held the exclusive remedy to the claims.

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What it means: In North Carolina, an exception to the exclusive remedy provision of workers' compensation arises when an employer intentionally engages in misconduct knowing it is substantially certain to cause serious injury or death to a worker.

Summary: A pipe layer was helping lay 42-inch pipe in a trench. He climbed into the bottom of the trench to check the depth and grade. He determined that with one more pass of the trackhoe, the trench would be sufficiently deep. He motioned for the trackhoe operator to make one more pass. Pursuant to the employer's policy, he was supposed to go inside the 42-inch pipe. However, the bucket of the trackhoe pinned the layer against the pipe. Later, he died as a result of his injuries. His estate sued. The North Carolina Court of Appeals dismissed the suit, holding that workers' compensation held the exclusive remedy for the claims.

The estate asserted that the employer intentionally engaged in misconduct knowing that it was substantially certain to cause serious injury or death to the layer when it required workers to remain in the trench and go inside pipe as the bucket of the excavator was lowered into the trench. The court disagreed, stating that the estate did not present evidence that the employer was "manifestly indifferent to the health and safety" of its workers. An Occupational Safety and Health Administration inspector said that if the layer had been inside the pipe consistent with the employer's policy, he would have been protected and would not have been hurt.

Although the estate presented evidence that rebutted the employer's contention that its practice was an industry standard, it did not address the employer's knowledge that serious death or injury was substantially certain. The court said that the case should be dismissed even if the employer's policy was an OSHA violation.

Read more at the WorkersComp Forum homepage.

March 29, 2012

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