Worker lost leg: Can he sue his employer for damages?
April 25, 2011 by Fred HosierPosted in: Forklift safety, Injuries, Special Report, What do you think?, Workers' comp, amputation, new court decision
Q: When is workers’ compensation, the so-called “exclusive remedy” for employee injuries, not an exclusive remedy? A: When the injured employee can prove the company knew an injury was likely to occur.
That’s what employee Bruce Houdek had to prove in his case against his employer, ThyssenKrupp.
Houdek had just returned to work on light duty because of a previous injury. His mobility was limited because of the injury.
He was assigned to work on a scissors lift, tagging inventory in a warehouse.
At the same time, another employee was assigned to operate a forklift in the same aisle where Houdek was working.
A supervisor had told the forklift operator to travel at the forklift’s maximum speed when retrieving materials from the warehouse aisles.
The forklift operator entered the aisle where Houdek was working. Not being able to see Houdek, the operator drove the forklift at maximum speed and crushed Houdek against the racks. Houdek’s leg was amputated as a result.
Just before the crash, the forklift driver had warned his supervisor about the dangers of operating the forklift in a warehouse aisle when another employee was working in the same area.
Houdek sued the company for his injury. The company sought to get the lawsuit thrown out, arguing that workers’ comp should be the exclusive remedy in this case.
Is this an exception to workers’ comp coverage?
To be able to sue ThyssenKrupp for damages outside of the workers’ comp system, Houdek had to prove that the company:
- knew of the existence of a dangerous process, procedure or condition within its operation
- knew that if the employee is subjected to that danger that harm would be “a substantial certainty,” and
- required the employee to perform the dangerous task.
The court ruled that ThyssenKrupp gave specific directions to its employees that led to Houdek’s injury.
The judges ruled that the company placed Houdek in harm’s way with no chance to avoid the oncoming forklift.
“Perhaps a twenty-year-old with the speed, agility, and strength of a Force Recon Marine, Army Ranger, Navy Seal or Olympic gymnast could have effected an escape from the oncoming [forklift],” the court wrote in its decision. “Houdek, however, as a middle-aged man whose mobility was limited by his prior physical injury and by being directed by Krupp to work a scissors lift, could not.”
The court said Houdek’s lawsuit against ThyssenKrupp could go forward. It’s likely now that the company will either face an expensive trial or will have to settle out of court.
What do you think of the court’s ruling? Let us know in the Comments Box below.
(Houdek v. ThyussenKrupp Materials, Court of Appeals of Ohio, 8th Dist., No. 95399, 4/7/11)
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Tags: exclusive remedy, forklift, injury likely to occur, light duty, scissors lift, ThyssenKrupp, Workers' comp
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April 25th, 2011 at 11:04 am
This court ruling was spot-on.
April 25th, 2011 at 2:12 pm
When management orders employees to conduct work in knowingly unsafe manners (or at least manners they should know are unsafe) they deserve to pay the consequenses. It is too bad Houdek had to lose a leg before ThyussenKrupp learned to listen to its employees and heed simple safety procedures. The court was correct in allowing this case to proceed.
April 26th, 2011 at 8:02 am
An employee got hurt on the job and the company must pay to make them whole or compensate them for his loss. That’s what insurance is for.
April 26th, 2011 at 8:39 am
The court was correct. I broke my leg because management told the supervisor not to use ice melt on a ramp. I got 8 weeks off, a steel plate and 5 screws in my ankle and a lifetime of pain and discomfort for this incompetence. The $16,000 for the disability award i received is a joke. Seems like the only way to get a fair shake is if you are illegal and get hurt. Then the you get a multimillion dollar award and deported back to Mexico to live like a king the rest of your life. ONLY IN AMERICA!!!!!!!!!!!!!!!!
April 26th, 2011 at 9:22 am
I am just curious as to the statement the court made “mobility was limited by his prior physical injury”. Maybe Houdek was well aware that he shouldn’t have been performing the task in the first place, given his previous injury. As for the forklift operator, if the supervisor told her/him to operate in an unsafe manner, and they knew better, they should have refused and offered to do something else until the job could be made safe. After all, that’s why we train isn’t it, to recognize and act on hazardous situations?
April 26th, 2011 at 9:45 am
The Court is correct in it’s decision. When someone is put in harms way just to meet a deadline someone usually ends up hurt.
April 26th, 2011 at 9:47 am
I do agree with much of the decision, but iof you read the 3 requirements, the third one states that “required the employee to perform the dangerous task” so, by that one requirement not being filled, sorry to say, but the judge is wrong. Tagging inventory, in and of itself, is not a dangerous task. Maybe the surrounding environment could be deemed as dangerous, but the task itself is not. This is a very unfortunate situation, but the rules are the rules. The company should be held liable for some of this, especially the supervisor who instructed the forklift driver to drive at max speed. But on the other hand, if the forklift driver knew of an unsafe condition by his/her own actions, he/she should have said no to working that way. It is just easier to pass the buck on to someone else instead of facing REALITY and taking RESPONSIBILITY for your own actions. People need to man up and say that things are unsafe and they won’t perform work duties in those capacities.
April 26th, 2011 at 10:37 am
“…required the employee to perform the dangerous task.” was proven. The employee was required to work in the fast aisle with speeding forklifts; makes it a dangerous task. Tagging inventory in an aisle without speeding forklifts would have been an un-dangerous task. Fixing a hole at the end of a dead end street, not dangerous. Fixing a hole on an interstate, dangerous.
And yeah, where is the driver of the forklift in all this? Seems a good lawyer could go after him if he freely decided to drive fast without visiblitiy.
April 26th, 2011 at 10:50 am
We believe the Court is correct. When you fumble the ball, ThyssenKrupp, don’t fuss about the way it bounces.
April 26th, 2011 at 12:13 pm
Not too hard to figure out that Thyssen Krupp albeit unwittingly put the worker in an untenable situation. It is easy to take the weasel route away from responsibility by claiming the injured worker should have refused to undertake the task; but this belies the sorry fact that often, workers are intimidated into performing tasks because they are a sole income earner of a household. They cannot afford to refuse to work.
Rank Stupidity on the part of a company, and/or its forklift driver should be punished, because we all know that when you make it hurt in the purse; people sit up and take notice. I hope the worker cleans their clock in civil court.
April 26th, 2011 at 2:38 pm
If you read the 2nd point of the 3, it states that » knew that if the employee is subjected to that danger that harm would be “a substantial certainty,” So, the actual task of tagging the inventory can be argued that it is not a dangerous task. The environment around it, yeah probably dangerous, but the task itself is not. Sorry Alice, but it was described and proven in the 2nd point, but not the 3rd.
April 26th, 2011 at 4:27 pm
Reality Check, I sincerely hope you are not a safety professional, because you sorely miss the point. It is the environment around the task that most often makes it dangerous, not the task itself. It is the company’s responsibility to evaluate the entire scene for hazards and adequately determine controls to protect workers. By your criteria changing a light bulb would not be a dangerous task, regardless of the light bulb’s location, simply because changing the lightbulb itslef is not an inherently dangerous task. But if that lightbulb is in a toxic environment, it is a dangerous task. In that situation, the company is required to evaluate the hazards and provide adequate controls to protect the employee.
In this situation, the company is required, let me repeat that, THE COMPANY IS REQUIRED to evaluate the hazards and implement adequate controls. The company did exactly the opposite in ordering the forklift driver to speed. Keep something else in mind: The courts protect employees, who may fear for their jobs (especially in this time of high unemployment), when they obey unreasonable orders from their supervisors.
Whenever a company places an employee into a dangerous situation without evaluating the hazards and providing controls, there is a substantial certainty that the employee may be harmed. Point #2 is the easiest one for the company to lose.
April 28th, 2011 at 9:38 am
This will depend on the laws of the individual state. Our highest court has ruled that no matter if the employer knows of the danger and even shows gross negligence, Workers Comp is the exclusive remedy. Now, I would speculate that the dependents of the worker would not be bound by that law, so maybe there could be some lawsuits based on the impact of the injury on them. If gross negligence could be proven, maybe punitive damages could be imposed. MD is very pro-business and pro-insurance companies.
April 28th, 2011 at 10:43 am
Top Management is responsible to maintain safe work practices and they did not in this case. The court was right in its judgment. Love the light bulb analogy
May 17th, 2011 at 11:37 pm
Hello, I am a worker who was crushed by a towmotor. Roy Munson don’t know the details of why he was doing what the foreman told him to do. Yes, he knew better. He knew there is not lite duty at work, but you have to do what the boss wants or you don’t have a job anymore. Also, when you work in a union job, they’ll just find the next person down the line to do the job. It’s simple and everyone that has worked in a union company knows that you do what your told or thats it. I agree 100% with the court. Workers comp is not enough to live on. You only get 66 2/3 % of your pay. What about all the overtime he worked? Anyone of you folks that disagree, give up 1/3rd of your pay and then see what you think. Thanks.
May 18th, 2011 at 10:20 am
At least in MD, Workers Comp is not taxed, so when you get it you are getting the same amount as if you were working and having taxes taken out.