On June 18, 2019, in Wells v. Oklahoma Roofing & Sheet Metal, the Supreme Court of Oklahoma ruled that injuries that are substantially certain to occur are considered intentional torts by an employer and are not subject to the exclusive remedy protection of Oklahoma’s Workers’ Compensation Act. The court analyzed 85 Okl. St. Ann §12 (repealed in 2011) and stated that the analysis applies equally to subsequent iterations found in 85A Okl. St. Ann. §5(B)(2) and 209(B). Section 5(B)(2) provides that the exclusive remedy does not apply if the injury was caused by an intentional tort committed by the employer. The statute further states:
"… An intentional tort shall exist only when the employee is injured as a result of willful, deliberate, specific intent of the employer to cause such injury. Allegations or proof that the employer had knowledge that the injury was substantially certain to result from the employer’s conduct shall not constitute an intentional tort ..."
The court determined that the legislature never intended to include intentional torts within the coverage of the Workers’ Compensation Act and found that “specific intent” and “substantial certainty” are both nomenclatures of an intentional tort. Thus, the court concluded that an employer’s act or failure to act is intentional if the employer acts with willful, deliberate, specific intent to injure, or when the employer is substantially certain that an injury will result.
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