Statutory Defense of Wilful Misconduct
Approximately one-third of the states include the defense of "wilful misconduct" in their respective workers' compensation statutes. Under this defense, employers' will claim that the employee is ineligible to receive, or is only entitled to a reduced amount of, workers' compensation benefits because his deliberate action in, for example, violating a safety rule or committing an aggravated assault, is what caused his injury.
The defense of "wilful misconduct" has not been successful in many situations due to the element of "willfulness." Rather than deliberate misbehavior by the employee, it is often determined that the employee merely exhibited a lapse in judgment in pursuing the course of action that resulted In his injury. Successfully wielding the defense requires the employer to prove the "willfulness" of the employee's action by showing that the employee deliberately engaged in the conduct and understood the consequences that would result from doing so.
Most often, "wilful misconduct" as a winning defense is found under circumstances where the employee violated a safety regulation. The employer must prove that the regulation was reasonable and instituted to prevent serious injury to the employee. Unless the employee demonstrates a reasonable excuse for his violative conduct, the defense will usually carry the day.
Copyright 2007 LexisNexis, a division of Reed Elsevier Inc.
