A worker whose left arm was amputated after an accident may proceed with his lawsuit for “intentional wrong” against his employer.

Brian Sims worked for St. Louis-based Express Scripts as an electromechanical technician in a mail-order pharmacy facility in Florence, NJ. On August 24, 2015, while servicing a machine used to prepare mail-order prescriptions for delivery, his left arm was severely crushed and burned by the machine when a coworker activated it, and his arm was ultimately amputated below the elbow.

Mr. Sims filed a workers’ comp claim and has received more than $1 million in workers’ comp benefits since the accident. He also filed a claim against Express Scripts alleging that the company had engaged in an “intentional wrong” excluded from protection by the Workers’ Compensation Act.

The machine was equipped with multiple safety procedures, including a lock-out, tag-out feature. Mr. Sims argued that Express Scripts maintained an unwritten policy of avoiding LOTO on that machine because it would require a 45-minute shut-down, which negatively affected productivity, and presented evidence that at least one other technician had expressed concern to the company about the lack of LOTO usage.

In 2014 the company removed a safety guard on the machine with the intention of replacing it with a modified guard, but it had not been installed and instead a piece of tape was being used to bypass the safety feature in order to operate the machine. Photos provided to the U.S. Occupational Safety and Health Administration of the machine for its investigation showed the modified guard in place.

Express Scripts called for summary judgment, saying they did not know the safety guard had not been replaced. They did admit they requested the guard be replaced with a modified guard.

The U.S. District Court for the District of New Jersey in Camden denied employer Express Scripts Inc.’s motion for summary judgment after holding that a jury could reasonably find that the company intentionally allowed the bypass of security features on a machine.

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