By: Erica Shelley Nelson & Sarah Burke
In Michelbrink v. Wash. State Patrol, Division II of the Washington Court of Appeals allowed a state trooper to proceed to trial in his civil suit for damages stemming from a compression fracture and bulged disk in his back under the “deliberate intention” exception of the Industrial Insurance Act (IIA). In his complaint, the trooper claimed that his employer’s knowledge that an injury would occur was enough to qualify under the deliberate intention exception. The Court of Appeals found that while every element of the deliberate intention exception should be narrowly construed, an employer does not need actual knowledge of the specific injury that occurs to be found liable.
Michael Michelbrink was employed as a state trooper with the Washington State Patrol (WSP). Michelbrink elected to carry a Taser, which required the completion of a training course where troopers were to be shot in the back with the Taser and shocked for one to five seconds. The Taser training manual listed the possibility of “cuts, bruises and abrasions caused by falling, strain-related injuries from strong muscle contractions such as muscle or tendon tears, or stress fractures.” Michelbrink participated in the training, and over the following several months, Michelbrink had to undergo treatment for a compression fracture and a bulged disk stemming from the Taser.
Michelbrink filed a lawsuit against the WSP for his injuries caused by the Taser and alleged that the Taser shot fell within the deliberate intention exception of the IIA’s general prohibition on civil suits for workplace injuries.
In general, Washington employers are immune from employee lawsuits for injuries in the course of their employment under the IIA. However, an employee may avoid this immunity and file a lawsuit for additional damages in excess of his or her worker’s compensation benefits if the employer deliberately intended to cause certain injury to the employee.
While no statute defines the term “deliberate intention,” the Washington Supreme Court has defined it to mean that:
“(1) `The employer had actual knowledge that an injury was certain to occur’ and (2) the employer `willfully disregarded that knowledge.’ … Disregard of a risk of injury is not sufficient to meet the first Birklid prong; certainty of actual harm must be known and ignored.”
The Court found that every element of the deliberate intention exception should be narrowly construed. Applying this narrow standard, the Court reasoned that the known and expected injuries of being stabbed and shocked by barbed probes was an “injury” regardless of whether or not the expected injury is relatively minor. The Court went on to further hold that an employer need not have knowledge of the specific injuries that occur, only that an injury will occur. In rejecting the employer’s argument of specific knowledge, the Court used the following analogy:
“If an employer physically assaulted an employee by slapping the employee across the face, it disregarded actual knowledge that injury was certain to occur because slaps are certain to cause redness of the cheek and minor pain. If the slap instead broke the employee’s neck, WSP’s argument would lead to the conclusion that the employer would bear no responsibility for that broken neck”
While the WSP argued that a finding of liability would undermine trooper training and put troopers at risk, the Court declined to adopt this policy argument after finding no statutory or legislative support for it.
In summary, the Court of Appeals allowed Michelbrink to pursue his civil suit for damages against the WSP under the deliberate intention exception of the IIA for his Taser injuries because an employer does not need specific knowledge of a potential injury to have actual knowledge.
This is an important case because it is very difficult to meet the “deliberate intention” exception. Worker’s compensation in Washington was set up so that work-related injuries are exclusively handled and administered through the worker’s compensation system. As a result, worker’s compensation benefits through the IIA are in most cases the exclusive remedy for the injured worker. Therefore, even if the employer acted negligently or improperly, the employer will be immune from employee lawsuits. Only upon a showing the employer actually knew injury was certain to occur and willfully disregarded that knowledge, will the employer be potentially liable for civil damages. Injured workers have made many attempts to argue the deliberate intention exception before the courts with limited success over the years, which makes this case particularly unique.
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