From the desk of Jeff Eberhard: Normally, the Workers’ Compensation Act is a worker’s exclusive remedy for injuries sustained while on the job. However, the Act provides an exception for circumstances where the employer deliberately causes injury to the worker. How broad is this exception? Read on to find out.
Claims Pointer: In this case involving an on-the-job injury, the worker sought to sue his employer under the intentional harm exception to the Workers’ Compensation Act’s exclusive remedy. The Oregon Court of Appeals determined the Plaintiff failed to allege ultimate facts on which a claim could be granted despite claiming that his supervisors had acted on behalf of and for the benefit of the employer, and that the employer knew injury was certain to result. The court explained that it wasn’t enough to show the employer condoned the actions after the fact, that the employer had reckless disregard or conscious indifference of the consequences of its actions, or even that it deliberately exposed the worker to the risk of injury. Instead, the employer had to intend the injury itself.
Bundy v. NuStar GP, LLC, 277 Or App 785 (2016).
Danny Bundy (“Bundy”) worked for NuStar GP, LLC (“NuStar”) loading fuel trucks as a terminal operator. The vapor recovery unit (“VRU”), a device that removes hazardous air pollutants, located at the terminal was inspected in April 2008 and found to have a worn vent valve, but NuStar did not immediately repair the valve. In October 2008, the VRU broke down, and a temporary fix was implemented, with plans to permanently fix the VRU a few days later.
During Bundy’s shift the night after the temporary fix (but before the permanent fix was made), he smelled fumes and noticed the VRU had shut down, so he contacted his supervisors to report the problem. One of the supervisors told Bundy to stop loading trucks, continue taking measurements, and keep the VRU running. When the second supervisor arrived about an hour later, he told Bundy to continue taking measurements throughout the night, and also to load an ethanol truck in the early morning for about 15 minutes, despite the malfunctioning VRU.
Because Bundy was required to monitor the VRU without proper safety equipment, he inhaled “dangerous and potentially deadly amounts of hydrocarbons.” He filed a workers’ compensation claim, which was accepted for non-disabling “exposure to gasoline vapors,” and he received benefits for the claim. He then requested acceptance of new or omitted conditions of irritant bronchitis and post-traumatic stress disorder (PTSD). These requests were denied, and the denials was affirmed by an administrative law judge and the Workers’ Compensation Board.
Bundy later filed suit in state court, alleging both negligence claims and an “intentional harm” claim as permitted by the Workers’ Compensation Act. The trial court dismissed his negligence claims with prejudice as barred by the workers’ compensation exclusive remedy bar. The trial court also dismissed Bundy’s intentional harm claim for failure to state a claim, concluding Bundy failed to allege specific facts of the employer’s deliberate intention to injure. However, Bundy was permitted to re-plead the allegation, and he asserted both that his supervisors were authorized to act on behalf of NuStar and that his supervisors and NuStar had knowledge that requiring employees to work without access to respirators and other equipment was certain to cause injury. NuStar again moved to dismiss, and the trial court again granted the motion, this time with prejudice. Bundy appealed, arguing he had stated a claim for deliberate intent to injure against NuStar based on both NuStar’s direct conduct and knowledge and on his supervisors’ conduct and knowledge as agents of NuStar.
Because the employer cannot both intentionally injure an employee and claim it to be a workplace accident covered exclusively under workers’ compensation law, Oregon’s Workers’ Compensation Act permits an employee to sue his employer if the employer deliberately injured the employee. The Oregon Supreme Court has interpreted this to require that the worker show the employer had specific intent to injure an employee, the employer acted on that intent, and the worker was actually injured as a result. Reckless disregard or conscious indifference of the consequences of the employer’s actions is not enough to meet this standard; neither is deliberately exposing the employee to risk of injury. Rather, the employer must intend to produce injury.
On appeal, Bundy argued he did allege facts that would allow a jury to conclude the employer’s direct intent to produce injury, but the Court of Appeals disagreed, noting that the circumstances leading to Bundy’s injury were not part of his normal work duties. Because Bundy’s allegations had significance only in the context of the malfunctioning VRU, his complaint included no allegations from which a fact finder could permissibly infer that NuStar intended to injure an employee.
The court then turned to Bundy’s argument that he adequately pleaded facts showing his supervisors’ conduct and knowledge could be imputed to NuStar. Under Oregon law, an employer’s subsequent condoning of tortious conduct of a coworker cannot form the basis of an intentional tort claim against the employer. Instead, Bundy had to show that the tort was committed by a person or persons wielding the whole executive power of the corporation and that the tortious acts were committed on behalf of the corporation. To successfully demonstrate his claim was wrongly dismissed, he would have had to allege ultimate facts from which a jury could reasonably infer that his supervisors personally held discretionary authority to determine and direct corporate policy independent of corporate approval or direction. The court concluded that Bundy had failed to allege any ultimate facts regarding the actual duties and discretionary authority of his supervisors, and it affirmed dismissal of the complaint.
View full opinion at: http://www.publications.ojd.state.or.us/docs/A152918.pdf
Case updates are intended to inform our clients and others about legal matters of current interest. They are not intended as legal advice. Readers should not act upon the information contained in this article without seeking professional counsel.