What about the rights of an injured worker’s spouse and family members after a work-related injury or illness? Guest Michael Duff, law professor, former blue-collar worker, and expert on Workers’ Comp walks us through the California “Kuciemba Case,” a case where an employer may have violated COVID-19 pandemic regulations, infecting several workers. Victim Peter Kuciemba was infected and later his wife contracted the illness and ended up on a ventilator. Is he entitled to Workers’ Compensation? Beyond that, what about his wife?
This is a tough issue that comes down to what’s called the “exclusive remedy,” meaning Workers’ Compensation protections are understood to be responsible for workplace injuries, replacing civil tort liability. But if a spouse isn’t part of the employment contract, does “The Grand Bargain” apply?
Remember the sickened meat packers during the pandemic. The legal system said family members of workers who infected them, as a result of contracting the illness at work, cannot sue the workplace. Workers’ Comp trumps the civil case, even in case of employer negligence. Now, let’s go deeper. What about a non-family member, such as a romantic interest, or a friend?
This episode goes down a rabbit hole. But if you’re an attorney representing workers in workplace injuries, you’ve got to be thinking this way. How far does exclusive remedy go?
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Intro: Workers’ Comp Matters, the podcast dedicated to the laws, the landmark cases and the people that make up the diverse world of workers’ compensation. Here are your hosts, Jud and Alan Pierce.
Judson L. Pierce:
Alan S. Pierce: Welcome again to another edition of Workers’ Comp Matters here on the LegalTalk Network. I’m attorney Alan Pierce of Salem, Massachusetts. And we’re going to tackle a topic today that has long been of interest to me and that is, what about the rights of an injured worker’s spouse or children or other family members after a work-related accident? And to join us in that discussion, I’d like to introduce you to Professor Michael Duff from St. Louis University School of Law. Michael is a nationally known commentator and expert in matters involving not only workers’ comp, but he teaches courses in torts labor law, workers’ comp occupational safety and health, along with other employee benefits or ERISA type of actions. He had been a trial attorney with the National Labor Relations Board. He was in private practice. He was in a union grievance steward, organizer, blue collar worker before entering and graduating from Harvard Law School. And he has caught my attention with a blog that he posted about a case that came out of, I believe, California involving the spouse of a worker who contracted or is alleged to have contracted COVID-19 in the workplace.
So first of all, I’d like to welcome Professor Duff to our podcast. Let’s begin by having you describe what the essential facts were in, I guess, what we’ll call the Kuciemba case and what does it mean for the state of the law right now in its particular jurisdiction?
Michael Duff: Thanks, Alan. Pleasure being here. The facts are pretty straight forward. You had a worker who was exposed to other workers who in turn, we think had been infected by COVID-19. And one of the real significant facts is that the employer violated a San Francisco city and county order with respect to how work was to be done during the COVID. And so the facts were that the employer brought some workers inside of San Francisco County who we think were exposed to COVID-19 and then essentially allowed other workers that were permanently assigned to San Francisco to become exposed to those workers and Peter Kuciemba was one of the employers employees who was exposed.
In turn, Peter goes home and exposes his wife to COVID-19, we think. And I say we think because in order to really know what happened, you’d have to have litigation in the case. And a lot about what this case was about is whether any cause of action at all was stated on the facts, even assuming the employer was negligent. So that’s basically it. And a guy gets sick at work, maybe he’s eligible for workers’ comp and maybe he’s not. That presents its own difficulties. But then in any event, he comes home and exposes his wife. His wife gets very ill. In fact, she was on life support at one point. And so that’s what the case was about. And ultimately, as you know, the California Court concluded that the employer Victory Woodworks was not liable.
Alan S. Pierce: Okay, so just to kind of bring this into focus this case went up to the appellate courts not on a proven case that the COVID was contracted at work or that the husband gave it to the wife, but it’s whether she even had the ability to bring a lawsuit and meet that burden of proof and the court said no which gets us into an interesting question that I would have. We know as a workers’ comp attorney and a workers’ comp professor that the underpinnings of workers’ comp is what’s known as the exclusive remedy called the exclusive remedy doctrine which means that if an injured worker or if a worker gets hurt at work his or her only remedy for that injury is against the employer. So when they get hired they enter into this sort of non-written understanding that workers’ comp supplants civil liability. But that’s between the employee and the employer. So the interesting question here is the spouse is not party to that exclusive remedy. And if it can be shown that the employer negligently caused the spouse to become sick essentially what the court said in Kuciemba is, even somebody who’s not part of the employment contract also is barred from suing the employer or put another way, the employer has immunity from more than just the injured worker. Is that a fair point?
Michael Duff: I think that’s fair and I think the way we could think about it, I mean some of your listeners may be surprised to learn that family members would have any kind of workers’ comp rights with respect to their loved one, their family member who had been injured at work. How are they involved in the first place? And the grand bargain, the original compensation bargain came to mean that not only was the employee limited to a workers’ comp remedy as opposed to a tort remedy, but the employee’s family, designated family members, typically spouse and children were also limited to a worker’s comp remedy. Now that sounds strange to a lot of people. Why would that be?
The idea is that to the extent the family member is experiencing damages or gaining damages by virtue of the injury that’s been adjudicated by the workers’ comp system to have occurred to the employee, that would be a second remedy. And so when we say exclusive remedy, we mean it. It’s the only remedy that derives from the worker’s injury. Right? When you had all those meat packing cases, for example, during the pandemic and you had the family members of workers that were made sick at meatpacking facilities; I’m slicing meat, I’m cutting meat and I’m at close quarters with other workers, right? I’m made sick and sadly I die, I expire. And the family member says, well I want to sue in tort for the death of my loved one. What the legal system said is you can’t do it, because what you’re doing is you’re suing for the death. You’re seeking damages for the death of the employee as an employee, and you can’t do that. And Kuciemba was a little bit different.
Alan S. Pierce: All right? And frequently, as I remember law school, you can take a set of facts like Kuciemba, and then you can change a fact here and there. And I want to try that with you. Why not maybe do a little role reversal?
Michael Duff: I don’t know if I will allow that. No, I’m kidding.
Alan S. Pierce: All right, so let’s say it wasn’t Mrs. Kuciemba who got sick and was on a ventilator, but let’s say it was Mrs. Kuciemba’s — let’s say they weren’t married. It was his girlfriend. Maybe they didn’t even live together. She wasn’t part of his family legally. She was another person unrelated to Mr. Kuciemba. And assuming it could be proven that the employer negligently caused Peter to get the virus and then innocently, he passed that along assuming you can prove all this to his girlfriend. She’s not a family member. Does that change the holding or is there a distinction there that would give her a cause of action that the spouse might not have?
Michael Duff: Well, on the facts, technically, the case was decided according to family members living in the same household. But what you’re hinting at is exactly what gives the courts pause. So it sounds like maybe there’s some kind of line you want to draw. Why? Because of the potential for liability and essentially what the court found was that, look, if we allow these kinds of suits, there’ll be no end to it. Even just if we’re in the household. We’ll have family members who are suing companies for COVID allegedly contracted in the workplace, and it will impose too heavy a burden on the legal system. Because as you’re pointing out, and as you’re alluding, what about somebody outside of the house? What about a non-family member? What about one block away, two blocks away, five blocks away? And that’s the slippery slope that the court was looking at.
Alan S. Pierce: So they’re basically making or extending or creating a public policy rationale based upon known or speculative exposures by an employer and drawing a line and perhaps stretching the language of the exclusive remedy doctrine because they find it elastic enough to do a good public policy reason.
Michael Duff: Well, there’s two things that they did. The first thing they did was they distinguished Kuciemba’s situation from the normal wrongful death situation, the meatpacking plant that we just talked about. They said, we’re not dealing here with somebody who issuing by virtue of what happened to the employee. We’re dealing with somebody who is suing by virtue of what happened to them. In other words, they actually suffered an injury that may have been factually related to the injury in the workplace but didn’t depend on the workers’ comp injury in the workplace in order to state a claim. It gets a little hazy.
So what they did was they said, look, workers’ compensation exclusivity does not bar this suit. This suit could go forward as a matter of tort law. But then they said another thing. They said, as a matter of public policy, you’re quite right, we’re not going to extend tort liability that far. Now mind you, this is a situation — this is not a situation in which Victory Woodworks was not negligent, right? For the purposes of the motion and where we were in the case, we assume that Victory was negligent. So assume a negligent employer that injures not the employee but the employee’s family member, even though that family member’s injury was at least factually related to the employee’s injury. They said, well, we’re going to assume workers’ comp exclusivity doesn’t apply, but we’re still not going to allow for the possibility of a tort remedy. And the reason we’re not going to do that is because of this slippery slope and how far this can go.
Alan S. Pierce: It’s funny and we’re going to take a break. In fact, now is a good time to take a break. I want to come up with an analogy to that line of reasoning that the court have used and I also want to get into other types of injuries to the family and you alluded to it, what I would call the derivative injuries, the loss of consortium and things like that as opposed to the direct injury. So we’re going to take a quick break. We’ll be back to continue our conversation with Professor Michael Duff. Be right back.
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Alan S. Pierce: Welcome back with our conversation with Mike Duff concerning the rights of family members in the event of a workplace injury. We were talking about the Kuciemba case and we were talking about a direct injury transmitted to a spouse from an injured spouse. In the Kuciemba case, I think we also sort of extended into the worker doesn’t get sick, but he passes on a sickness to his wife. And that for public policy reasons that couldn’t be allowed as a cause of action. What I want to talk about would be other types of claims that family members that I guess maybe you would consider derivative claims. In other words, they would spring from the injury of the injured worker. And I’m specifically thinking of loss of consortium claims, the claims of a spouse or even minor children who have lost a society comfort, companionship, intimate relations, et cetera, and were damaged as a result of the negligence of others. And I know this varies from jurisdiction to jurisdiction. Do you want to perhaps elaborate a little bit on these types of claims and whether they are allowed in different states, whether they are statutorily prohibited or prohibited by case law or allowed?
Michael Duff: Well, first of all, I would be very hesitant to plumb the history, the depths of history, too much or go too far back. But I think most people may know that something we now call a wrongful death act, which we’ve been alluding to, where you get to sue because of an injury suffered to your loved one. That is a relatively recent innovation of tort law. Now, we’re talking about the late 19th century is when those come online. There’s a whole history to that, just like there’s a history to consortium cases. A consortium case is where I sue because of the injury to my loved one, because I’m no longer able to enjoy my society as defined differently in different states with that person anymore.
Now, all of these cases are a function of a legal duty existing to someone somewhere. One of the things that’s interesting about Kuciemba is that if the California Supreme Court or any state supreme court says an employer, a company, has no duty to that third party period, then any kind of action is presumably unavailable. So the whole concept of duty goes away. Now, Alan, I think one thing that people may understand California for many years was actually a pretty liberal state with respect to the expansiveness of legal duty, the idea that we have legal duty when we can foresee harm to others and we don’t protect them from that harm. California was quite broad in how it looked at those kinds of cases. And there’s a whole balancing test, as you can imagine, that courts go through. Because remember, courts don’t want to impose infinite liability on society. And so that’s the juggling act that you’re always dealing with here.
One thing I really want to say is that when the courts are considering the imposing burdens and the infinite liability to parties, one of my chief complaints is that often the burden on the family member isn’t discussed, is not discussed, or is rarely discussed. And for people who represent injured workers and their families. They understand the dire situation that some of these folks are in. And when you say there’s no duty, there’s no remedy, there’s no liability, there is a person somewhere who doesn’t have access to any kind of money in many situations. So that’s what I think the upshot is.
Alan S. Pierce: Yeah, I think there was an old axiom, maybe it’s not so old that we learned in law school that for every wrong there must be a remedy. And that, we have found, is not always the case. Mike, when you were describing the rationale the Kuciemba court utilized in not allowing the cause of action, that being it would open the floodgates of, I don’t think so, your words, but it would expand quite exponentially the liability of the employer and as a matter of public policy, they didn’t want to go that route. It reminded me of maybe 40 or 50 years ago, when that was the same rationale used both in workers’ comp and in tort law for denying a cause of action for mental injuries, especially as a result of mental stimulus, the so called mental-mental cases, or even mental injuries after a physical stimulus, post-traumatic stress disorder and things like that.
And the rationale, as I remember it the court used was that it was too speculative to allow medical claims for psychiatric or psychological injuries because they are so subjective, they’re not easy to objectively quantify, and a variety of reasons they wouldn’t allow them and the courts came around to changing their mind and allowing those. Do you see some parallels with the evolution of mental health and mental disability claims along with these types of claims involving family members?
Michael Duff: I do see parallels. It’s always easy to protest that liability for whatever wrong you’re talking about would be infinite. I would be shocked if defendants didn’t, at some point in the history of the evolution of a cause of action, make that type of argument. And you’ll notice that when tort law began to cover IIED (intentional infliction of emotional distress), NIED (negligent infliction of emotional distress), when those liabilities became real matches up pretty well to when mental-mental injuries were all of a sudden acceptable in workers’ compensation because from the point of view of the rational employer, they would rather pay a workers’ comp benefit in many cases than tort damages. So once tort covered and that argument was no longer accepted, the potential for expansion of tort liability was appreciated. And all this goes to remind everyone that these are policy choices. We decide whether we’re going to cover wrongfully caused injuries. It’s not written in the immutable heavens somewhere. It’s a policy decision that people make. And there are always implications to not remedying wrongs.
Alan S. Pierce: A very good answer to a complicated question. And we’re going to be right back with Professor Duff for some final comments on this very interesting issue. We’ll be right back.
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Alan S. Pierce: All right, we are back. We’re going to conclude our interview with Professor Michael Duff. You had mentioned know it’s public policy and the courts react to public policy to expand or contract rights. I think it’s a good point to indicate to our audience that this discussion may be related to just California in the case of Kuciemba or other jurisdictions may have other rules. So in any case where you have any question as to whether a spouse or a family member may be eligible to collect benefits after a workplace injury, you also want to see what your current case law is or your statute is. In going through some of the materials to prepare for this, I came across a line of cases and I’ve had some of these cases myself. And these would be the — some of them are dated, so it would usually be the wife washing the husband’s dirty clothes and in particular clothes that might have a lot of asbestos fibers. And that is the first time I ever became aware of an area of litigation as to whether or not a spouse who basically is exposed to asbestos dust in the workplace and 10 or 20 years later comes down with asbestos disease or cancer or passes away whether she may bring a lawsuit. So tell us your experience and your knowledge of the state of the law regarding that type of situation. Somewhat analogous to COVID-19 but also somewhat different.
Michael Duff: I think the first thing to say is that the Kuciemba very strongly reinforces the idea that workers’ compensation exclusivity does not bar these types of claims because they are related claims, although they’re derivative, there’s an independent remedy being sought for the claim to the family member, him or herself. So that’s the first point to make. The second point to make is that the weight of authority is slightly more than half the states that have considered those types of cases have concluded that there is tort liability available. Roughly just slightly less than half the states that have considered the question and I’ve have said there’s no liability on reasoning very similar to what the California Supreme Court said in Kuciemba. The idea is infinite liability. And so there is a split. I think something like 13 states have not yet considered the question. So I think it’s pretty evenly balanced in terms of the weight of authority.
And look, we’ll always be talking about the fundamental question that if you cut off damages with respect to wrongful conduct, the harm doesn’t go away. The cost related to the harm simply gets shifted somewhere else. And that’s the discussion I have with my students repeatedly.
Alan S. Pierce: And that’s a discussion, of course, that we always have both in the field of workers’ comp tort law or any other personal injury scenarios where there are limits on what you can claim and how much you can collect. One last comment, and I know it’s a broad comment for a short amount of time, is as we are emerging from COVID-19, at least in terms of the workers’ comp implications and we have seen how the workers’ compensation system has reacted to COVID. Anything jump out at you as far as what we can do or what the system can do better the next time we experience a pandemic, which unfortunately I have to predict is more of a probability than a possibility. What lessons have we learned and how can we anticipate problems?
Michael Duff: Well, the short answer is we have to move faster. We have a state’s rights federal judiciary. There’s no getting around that. So our existing structures would dictate that the states would be responsible for more than we might have thought before we experienced our first pandemic. So what that’s going to mean is that there’s going to have to be congressional action quickly. I would think that policymakers are thinking about triggers that would cause us to go into a different mode. But I think it would take on the federal side, it would take very rapid federal legislation since the court has reminded us that historically health law, if we can call this, is the prerogative of the states.
Alan S. Pierce: With that, I want to thank Professor Michael Duff for joining us and getting into this very interesting subtopic of an extension of workers’ comp or an extension of employer liability. And for those of you who are regular listeners of Workers Comp Matter, we hope you come back and join us on our next edition of this podcast and go out and make it a day that matters. Thank you and goodbye.