In general most states allow civil actions against an employer outside of the work comp system if the employer intentionally causes an injury.
There's a fine line between intentionally performing an act that may be injurious and intentionally causing the injury.
As reported in WorkCompCentral this morning, the Washington State Court of Appeals ruled that a state troop who participated in taser gun training, which required the trooper to himself be Tasered, may sue the employer outside of work comp for his injuries.
Michael S. Michelbrink Jr. underwent Taser training in March 1999. It was mandatory for troopers, as part of the State Patrol's training program, to be shot with the Taser, presumably to experience the effects of the device.
And while Michelbrink experienced the expected instant temporary pain, discomfort, trouble breathing and incapacitation, he also underwent involuntary muscle contractions from the powerful electric shock that caused serious injuries to his spine.
The Washington State Patrol accepted Michelbrink's fractured vertebrae and slipped disc as compensable injuries. Michelbrink missed almost a year of work before returning to duty, but his permanent partial impairment from his back injury has restricted him to a desk job.
But Michelbrink argues that he is entitled to more because the act of shooting him was intentional.
Like most states, the Washington Workers' Compensation Act immunizes employers from employee lawsuits for injuries in the course of their employment. But the immunity does not apply if an injury "results to a worker from the deliberate intention of his or her employer to produce such injury."
The Washington Supreme Court in the past has said it requires an employer to have actual knowledge that an injury was certain to occur because of its conduct and willfully disregard that knowledge.
The State Patrol sought summary judgment against Michelbrink's suit contending that while it was aware that Tasers posed a risk of injury to its officers, since it had not been certain that the Taser exposure was sure to cause the serious injuries that Michelbrink suffered, it was entitled to summary judgment.
For the less legally erudite, summary judgment in a civil suit is a procedural remedy where the court agrees that there is "no triable issue of fact." In other words, that no ultimate conclusion of fact is subject to disagreement.
And in this case, I can see a triable issue of fact: whether or not the State Patrol had any knowledge that Michelbrink COULD have the injuries he sustained as a result of Taser exposure.
That's how the trial court saw it, and last week the Court of Appeals agreed.
"The Act's exception to employer immunity contains no language making a civil action for excess damages contingent on the severity of the initial injury that an employer deliberately causes in disregard of its knowledge that its action will always produce this 'certain injury," the Court opined.
"Taken in the light most favorable to Michelbrink, as we must on summary judgment, the record shows that (1) WSP required Taser training for troopers opting to use Tasers on the job; (2) WSP knew at a minimum that the Taser barbs would wound and deliver an electric shock on contact with a trooper's back; and (3) despite this knowledge of certain injury, WSP shot troopers with Tasers during training, which it required of all troopers using Tasers in the course of performing their duties," the Court wrote.
Thus, Michelbrink had established a material issue about whether the State Patrol deliberately intended to injure him by providing evidence tending to show it had knowledge that the Taser barbs were certain to cause injury.
The practice of Tasering officers has been controversial. In 2011 the Mississippi Public Entity Workers' Compensation Trust warned against the practice.
But last January, the Montana Supreme Court ruled that a prison guard, who was a member of the prison's elite special response team, could not sue his employer in tort for his Taser-induced spinal injuries.
And the Wyoming Supreme Court last August ruled that a police officer who broke his hand during a Taser training exercise wasn't entitled to workers' compensation benefits for his respiratory problems after his injury.
The Michelbrink case has been remanded to the trial level for further proceedings - the case is not over yet by a long shot.
The case is Michelbrink v. State of Washington, No. 44035-1-II. The WorkCompCentral story contains links to the party's briefs and oral arguments.
There's a fine line between intentionally performing an act that may be injurious and intentionally causing the injury.
As reported in WorkCompCentral this morning, the Washington State Court of Appeals ruled that a state troop who participated in taser gun training, which required the trooper to himself be Tasered, may sue the employer outside of work comp for his injuries.
Michael S. Michelbrink Jr. underwent Taser training in March 1999. It was mandatory for troopers, as part of the State Patrol's training program, to be shot with the Taser, presumably to experience the effects of the device.
And while Michelbrink experienced the expected instant temporary pain, discomfort, trouble breathing and incapacitation, he also underwent involuntary muscle contractions from the powerful electric shock that caused serious injuries to his spine.
The Washington State Patrol accepted Michelbrink's fractured vertebrae and slipped disc as compensable injuries. Michelbrink missed almost a year of work before returning to duty, but his permanent partial impairment from his back injury has restricted him to a desk job.
But Michelbrink argues that he is entitled to more because the act of shooting him was intentional.
Like most states, the Washington Workers' Compensation Act immunizes employers from employee lawsuits for injuries in the course of their employment. But the immunity does not apply if an injury "results to a worker from the deliberate intention of his or her employer to produce such injury."
The Washington Supreme Court in the past has said it requires an employer to have actual knowledge that an injury was certain to occur because of its conduct and willfully disregard that knowledge.
The State Patrol sought summary judgment against Michelbrink's suit contending that while it was aware that Tasers posed a risk of injury to its officers, since it had not been certain that the Taser exposure was sure to cause the serious injuries that Michelbrink suffered, it was entitled to summary judgment.
For the less legally erudite, summary judgment in a civil suit is a procedural remedy where the court agrees that there is "no triable issue of fact." In other words, that no ultimate conclusion of fact is subject to disagreement.
And in this case, I can see a triable issue of fact: whether or not the State Patrol had any knowledge that Michelbrink COULD have the injuries he sustained as a result of Taser exposure.
That's how the trial court saw it, and last week the Court of Appeals agreed.
"The Act's exception to employer immunity contains no language making a civil action for excess damages contingent on the severity of the initial injury that an employer deliberately causes in disregard of its knowledge that its action will always produce this 'certain injury," the Court opined.
"Taken in the light most favorable to Michelbrink, as we must on summary judgment, the record shows that (1) WSP required Taser training for troopers opting to use Tasers on the job; (2) WSP knew at a minimum that the Taser barbs would wound and deliver an electric shock on contact with a trooper's back; and (3) despite this knowledge of certain injury, WSP shot troopers with Tasers during training, which it required of all troopers using Tasers in the course of performing their duties," the Court wrote.
Thus, Michelbrink had established a material issue about whether the State Patrol deliberately intended to injure him by providing evidence tending to show it had knowledge that the Taser barbs were certain to cause injury.
The practice of Tasering officers has been controversial. In 2011 the Mississippi Public Entity Workers' Compensation Trust warned against the practice.
But last January, the Montana Supreme Court ruled that a prison guard, who was a member of the prison's elite special response team, could not sue his employer in tort for his Taser-induced spinal injuries.
And the Wyoming Supreme Court last August ruled that a police officer who broke his hand during a Taser training exercise wasn't entitled to workers' compensation benefits for his respiratory problems after his injury.
The Michelbrink case has been remanded to the trial level for further proceedings - the case is not over yet by a long shot.
The case is Michelbrink v. State of Washington, No. 44035-1-II. The WorkCompCentral story contains links to the party's briefs and oral arguments.
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