This article is for all those Oklahoma employers out there who are subject to Oklahoma workers’ compensation laws for on the job injuries. Those of you who are not can skip to the next article. Oh wait, almost all employers are subject to workers’ compensation laws, so my suggestion, read on…

Typically, under the mandatory workers’ compensation system, an employer becomes immune to civil suit for its employee’s injuries. Translation, when one of your workers are hurt on the job, they get workers’ compensation benefits only and can’t sue you for their injuries in a regular court. This is often referred to as the “exclusivity of the workers’ compensation remedy,” or “workers’ compensation immunity.” Typically this immunity is insurmountable, and a worker is forced into the workers’ compensation system.

In a typical on the job injury there are but two questions: (1) was the worker injured? and (2) were they on the job at the time of the injury? However, unbeknownst to many employers, under certain circumstances there has always been a third question looming, the answer to which potentially destroys an employers’ workers’ compensation immunity. That third question asks: were you, the employer, substantially certain that the employee was in danger of being injured when they engaged in the act in question? If the answer to this question is “yes,” you may find yourself paying workers’ compensation payments and damages in a civil court of law.

It has always been the law in Oklahoma that in certain circumstances an employee injured on the job may be able to seek relief in civil court in addition to workers’ compensation court. However, for many years it was unclear just what set of facts would enable an employee to seek both workers’ compensation benefits and civil court remedies. However, in 2005 the Oklahoma Supreme Court clarified the exception to workers’ compensation immunity. This exception stems from a case wherein the plaintiff, Mr. Parret, was killed while replacing emergency lights in his employer’s facility. When he was killed, Mr. Parret was working on the emergency light system while it was still “hot” or energized. As it turns out, the evidence in the case showed Mr. Parret’s employer may have required him to work on the system while it was energized. Since even my eight year old knows to not work on a piece of equipment that has electricity running through it, it seemed likely to the Court that Mr. Parret’s employer was substantially certain that its employee could be injured if he worked on the system while it was hot.

The question posed to the Supreme Court in the Parret case was essentially: whether in order to circumvent the workers’ compensation exclusivity provisions the employer must have “intended” its employee be injured, or whether it was enough if the employer was “substantially certain” its employee would be injured. You guessed it, the Supreme Court of Oklahoma opted for the lower standard, holding that an employer who was “substantially certain” its employee would be injured if he performed the act in question may be liable for damages in a regular civil court if that employee is injured on the job. What is the big deal you ask? Two words: Punitive damages. That’s right folks, if you get tagged in a lawsuit like this, you are looking at potentially paying big bucks.

How does an employee prove you were substantially certain he would be injured? The Court requires that the employee put on evidence to show that you the employer actually and subjectively had knowledge the injury was substantially certain to occur. What does this mean? The employee must prove that (1) you intended for them to perform the act they were engaged in at the time of the injury, i.e. you intended for the employee to work on the electrical system while it was energized, and (2) you were “substantially certain” injury would result from them performing the act. The employee can prove this second prong by inferring the knowledge of the employer by the surrounding circumstances. Example: In the Parret case, the evidence showed, prior to Mr. Parret’s injury, many workers had been electrocuted when they worked on the lighting system while it was hot. [From those facts, they inferred that the employer knew that Mr. Parret was substantially certain to be electrocuted if he worked on the lighting system when it was hot.]

Understand that Courts are aware, in most jobs, there is some danger associated with many tasks a worker is expected to perform. This exception is not designed to allow those injured workers’ access to the civil system. Rather this exception is designed to keep employers from requiring their workers to take on unnecessary risks time and time again. You may be wondering why we are just writing this article now if this test has been around since 2005. Recent court trends indicate that civil courts are allowing plaintiffs to pursue this exception, in Oklahoma and in other states, at least through discovery. What does this mean to you? Bottom line as always, money. Remember, while you may ultimately be successful in defeating a lawsuit brought under this exception, it can still cost you a lot of time and money in legal fees. Your efforts are best spent in avoiding a Parret lawsuit altogether.

Practical tips:

• Be aware that this exception exists;
• Make sure you always put safety first;
• Be aware, if you get taken to court by a worker alleging the Parret exception your entire operation including past accidents will be scrutinized;
• If the Parret exception applies, an employee can generally seek workers’ compensation remedies and civil remedies both.
• If a third party is responsible for injuring your employee, you may have a workers’ compensation lien against any recovery the employee gets from that third party. This situation may occur when an employer contracts with an outside entity to perform work on its premises and one of those workers injures your employee. Similarly this situation may occur when your employee sues you and another entity, say a manufacturer, for products liability alleging they were injured both because of your actions and the faulty product in question. However, you have to assert that lien to protect your rights, so talk to a lawyer if you think you may have these rights;
• Don’t expose workers to unnecessary risks. This seems obvious. However, in the Parret case, it was the employer’s failure to use OSHA mandated Lock Out/Tag Out procedures that caused the employee’s injury;
• If you know of a dangerous situation that is unnecessary, don’t ignore it.

By McLaine DeWitt Herndon, mherndon@dsda.com