Previously, we told you Publix Super Markets faced $182,000 in OSHA fines following the amputation of an employee’s hand. Now, the worker is suing the supermarket chain. What are her chances of having her lawsuit go forward?
Appiffane West is suing Publix even though she’s getting workers’ comp and $100,000 for her amputated hand. Since workers’ comp is known as the exclusive remedy for injured workers, it can be difficult just to get a court to allow your lawsuit to be heard, let alone win it.
West was cleaning a running conveyer belt at a Jacksonville, FL, Publix when her hand got caught and was cut off. She now wears a prosthetic hand.
Her attorney, Steve Pajcic, told a local TV station, “We think in this case that the Publix practices were so egregious and dangerous that Ms. West can bring a civil suit for gross negligence and for the accident being almost a virtual certainty to happen.”
Pajcic cites two alleged errors by Publix: The conveyor was missing a guard and the store’s management supposedly told employees to clean the conveyer systems while they were running.
OSHA issued 16 citations to Publix: 1 willful, 2 repeat, 6 serious and 7 other-than-serious.
The willful violation, the most serious of the 16, was for failing to use procedures for control of potentially hazardous energy when employees service or clean equipment (lockout/tagout).
Publix initially said it disagreed with OSHA’s findings and planned to appeal them. Now, the fines have been settled, but details of the settlement aren’t available.
Publix was placed in OSHA’s Severe Violator Enforcement Program as a result of the amputation. The program mandates follow-up inspections to ensure compliance and focuses on employers that endanger workers by committing willful, repeat or failure-to-abate violations.
‘Virtually certain to produce injury?’
The first hurdle West is likely to face in her lawsuit is a motion by Publix to have it thrown out because her exclusive remedy is workers’ compensation. It’s a common move by companies in these types of situations because of the strict way in which state workers’ comp rules are written.
To give a sense of how high this hurdle is, let’s take a look at another recent case in the same state involving the same supermarket chain.
Keith Jackson Sr. was killed when a co-worker backed over him with a tractor at a Publix distribution center in Deerfield Beach, FL. Jackson’s widow sought to sue Publix outside of workers’ compensation.
In May, a state appeals court ruled she couldn’t do that. Why? Because the employer’s conduct was not virtually certain to produce injury or death.
The court noted Florida’s workers’ comp law provides “a strict liability system of compensation for injured workers.” Workers receive payment from insurance policies for their injuries and lost wages. In exchange, they can’t sue their employers in court.
To overcome the workers’ comp exclusive remedy, three elements must be proved:
- The employer engaged in conduct that the employer knew, based on similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee
- The employee was not aware of the risk because the danger was not apparent, and
- The employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.
In the Jackson case, the test stopped with the first question. There was no evidence that previous similar incidents had occurred.
Jackson’s widow also argued that a broken back-up alarm on the tractor made it virtually certain that an injury would occur. The court disagreed. It said an injury would be more likely. However, more likely isn’t good enough under the Florida workers’ comp law.
It turns out the backup alarm had been broken for some time. That just proved an injury didn’t occur every time the tractor was used without the alarm. Therefore, injury was not a virtual certainty.
You can see the similarity in West’s case. If she and other workers had been cleaning the conveyer while it was still running without getting injured before her amputation, Publix could make the argument that injury was not a virtual certainty. More likely isn’t the same as virtually certain.
Do you think employees should be able to sue employers outside of workers comp in cases similar to West’s? Let us know what you think in the comments below.
(Chalunda Boston v. Publix Super Markets, Inc., 4th Dist. Crt. of Appeal of FL, No. 4D-11-1521, 5/1/13)
For more information on workers’ compensation, see Safety News Alert’s Recommended Safety Links page.