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Willful Misconduct & Workers' Compensation Act

In Arizona, the Workers' Compensation Act is designed to protect all employers from any lawsuit stemming from any and all on-the-job accidental injuries sustained by their employees. These, of course, are injuries that occur while their employees are involved in the normal course and scope of their employment. Therefore, the rule of thumb is that you cannot sue your employer if you are injured on the job and your ability to recover money from your employer related to the injury is typically limited to a worker's compensation claim.

Sometimes, however, you may be able to choose whether to file a workers compensation claim or a personal injury claim. One of those situations is "willful misconduct." Willful misconduct is defined as "an act done knowingly and purposely with the direct object of injuring another." (We are talking about your employer's misconduct here.) If your employer does something like purposefully shooting you at work, that is misconduct. In this situation you may be able to sue your employer in tort.

Courts in Arizona have rejected most attempts to establish willful misconduct by an employer. See Serna v. Statewide Contractors, Inc., 6 Ariz. App. 12, 429 P.2d 504 (1967). There are two requirements which must be proven in order to allow you to sue your employer. First, what the employer did must have been done knowingly and purposely. Id. Second, there must be clear and convincing proof that the employer intended the injury. Id. It is difficult to prove these two things.

Just to give you an example of how limited the exception is, you probably cannot sue your employer if a co-worker molests you, but you probably could sue the employer if the employer molests you. If the employer accidentally fails to provide you with protective equipment, it's unlikely that you could sue them mostly because the Court is very reluctant to find that the employer acted knowingly with bad intentions.

Despite the narrow nature of the courts' interpretation of willful misconduct, exceptions do exist. If you have any questions about this subject or any other Arizona workers' compensation issues, please contact Fendon Law Firm for a free consultation.

Categories: Workers' Compensation