Challenging the Way We Think About “Exclusive Remedy”.

Episode Notes

Transcript

Announcer:

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 Pierce:

Hello and welcome to another edition of Workers’ Comp Matters. My name is Jud Pierce coming to you from Salem, Massachusetts. Today I have my colleague, partner, father, all of the above on as our co-host guest. We’re going to be talking about the exclusive remedy rule and how this concept arose in the field of workers’ compensation and what recent case has really spoken about it in a very interesting way. Alan Pierce is with me. Say hello, Alan.

Alan Pierce:

Hey, Jud. How are you? Nice to see you. As Jud indicated, we’re going to talk about a case that just came down about a month ago. We’re recording this at the end of June of 2026 and in May of 26 at the Court of Appeals for the State of Washington, an interesting case came down. The name of the case is Tela, T-E-E-L-A Bauer, B-A-U-E-R, guardian of a minor child as well as on behalf of her and her husband, Thomas, versus the Boeing Company. As you may know, Boeing aircraft engine manufacturing plant in the state of Washington is one of their leading employers. And in that particular case, we’ll get into the facts in a moment, but the question was whether a child born to the couple with substantial birth defects could maintain a cause of action for negligence against the Boeing company. So there are a bunch of issues in that decision and it sort of caught my attention because as Judge had indicated, we’re going to talk a little bit about the exclusive remedy rule, which I think most of our listeners should be aware of it.

We’ve done shows on it. It is really the foundation of any workers’ compensation system, that is that in exchange for giving up a right to sue for injuries sustained by a worker injured as the result of negligence of the employer or co-employees, the workers’ comp remedy becomes the exclusive or only remedy for that injured worker and in many cases for that worker’s family. And in exchange for that, giving up those civil remedies for tort or to bring a personal injury action, workers’ comp provides without fault, a system of predictable benefits of limited amount. You don’t get pain and suffering, you don’t get other types of damages, but you are limited in workers’ comp to a percentage of your wage, your medical expenses are paid. And in some cases there are impairment ratings or vocational rehab benefits, but that’s about it. So when workers’ comp was first established in this country, the turn of the century of the 20th century, and as it evolved from the European countries that had established workers’ comp systems right at the foundation of providing this universal coverage was for the employer to be relieved of other financial obligations as a result of work injury by simply having in place a workers’ comp program.

Well, the world as it existed 100 to 125 or more years ago is different than it is today. And today when a worker gets injured, we as attorneys for that worker are always looking for, I guess, what you would call exceptions to the exclusive remedy rule. There are situations where notwithstanding the injuries suffered by the worker, the employer could still be exposed to other types of claims arising out of that injury. And just to give you an example, somebody gets hurt at work, there are obligations under the Americans with Disability Act to accommodate those restrictions and failure to accommodate reasonable restrictions could result in an exposure to the employer. There could be some type of discrimination actions, but over the years, a variety of other cases have been brought. And just to maybe summarize, there is a landmark case in Massachusetts. That’s not the case we’re talking about today, but just to give you an overview of the limits of exclusive remedy, there was a case that is now 46 years old.

It’s Foley versus the Polaroid Corporation. This is a case that came down from the Massachusetts Supreme Judicial Court in 1980. The citation is 413 Northeast 2nd 711, but in that case, without going into all of the facts, Foley or suffered a mental or psychiatric disability as a result of being what turned out to be falsely accused of a crime. And as a result, he was terminated or suspended from his employment without pay. It was a rather egregious allegation. There were some other facts about the employer’s conduct because it was a co-employee who asserted that he had assaulted her and the case went to trial on the criminal aspect and I guess the criminal case pretty much fell apart and there were some allegations that there was a great deal of exculpatory evidence that allegedly Polaroid kind of kept in house. And long story short, he had a significant mental breakdown that he alleged was as a result of these circumstances.

So a lawsuit was filed but included in the lawsuit aside from a claim for mental distress, which by the way, the Supreme Judicial Court in Foley said was within the workers’ comp statute. So the case went up to the Supreme Judicial Court on a motion to dismiss. Foley and his spouse sued not only for Foley’s mental health injury, but he filed also for claims involving defamation for false imprisonment for violation of his civil rights and a variety of other causes of action that were not necessarily related to his alleged mental injuries but were loss of consortium of his spouse a variety of actions that some of which were not covered under workers’ comp. So long story short, the Supreme Judicial Court in Foley said that his emotional distress claim against Polaroid, his employer was barred because as an employee, his remedy was only workers’ comp.

However, the other allegations, if he could prove them, were viable to go forward and be litigated. And we don’t know the outcome. Presumably the case settled, but basically the SJC said non-injury-based torts or civil wrongs such as defamation, slander, liable, false imprisonment, damage to reputation, violation of civil rights, et cetera, those were not directly injury caused actions. They were non-injury caused and therefore he could bring that claim. So the SJC does a fairly significant analysis of what is covered by the exclusive remedy rule and isn’t covered. So that is sort of the predicate for the case we’re going to discuss.

Judson Pierce:

So what legal issue was the court actually deciding in Washington and what questions remain unresolved?

Alan Pierce:

Okay. In the state of Washington, the case of the Bauers had to do with an allegation that Thomas Bauer worked for Boeing and as a result of his work, he was exposed to a great deal of organic solvents and heavy metals. The exposure was through inhalation, ingestion and dermal contact, which means I guess he breathed the solvents or the particulates that were in the air. He may have swallowed some that were in the air and also they could enter a system through his skin. It was recognized that these solvents and other compounds to which he was exposed, heavy metals, et cetera, there was a great deal of medical evidence that there is a link between those exposures and birth defects that might occur from a parent that was exposed that conceived a child. And that’s exactly what happened in this case. A lawsuit was filed by the Bowers on behalf of their subsequently born child Milo, who was born with substantial defects.

He contracted those defects in utero. He was a fetus when his father presumably passed on these solvents, whatever, through procreation. So there were a couple of questions raised because when the suit was filed, Boeing and the other defendants filed a motion to dismiss for failure to state a cause of action. So the case that we’re going to discuss, which just came down, has never been tried. The allegations haven’t been proven. The issue confronted by the appeals court in the state of Washington was whether they could even bring such an action. And they ultimately held that they could bring such an action for a couple of reasons which we’ll discuss. So the case now gets sent back to the trial court to be tried. And of course then the Bauers have to bear the burden of proof through medical evidence that there was such a link between the exposures to these solvents and heavy metals that caused the birth to fix.

All

Judson Pierce:

Right. Why don’t we take our first break and then when we come back, we’ll get into a little bit more of what the court said about this action and how it would challenge or redefine the principle of exclusive remedy doctrine under workers’ compensation law. Workers’ comp matters will be right back and we’re back with Alan Pierce to discuss the case that came down just a month ago in May of 2026, Bauer versus Boeing out of the state of Washington. Alan, you were saying before the break that the exclusive remedy doctrine has been sort of a mainstay, a pillar of workers’ compensation law for many, many years. How does this case challenge or redefine that principle?

Alan Pierce:

Well, in this case, the defendants had two arguments. They brought a motion to dismiss and two questions were certified to the Superior Court in the motion to dismiss and that ultimately was appealed to the appeals court. The first was whether Boeing or any defendant or any, in this case, employer has a duty to a not yet conceived offspring of one of its employees. This is known as the preconception duty. So the first question that they had to answer is did the then fetus have the type of, I suppose, legal standing that a potential defendant or harm doer would have a duty of care to that unborn child. And the court first spent some time analyzing, was there such a duty? And there was a body of case law suggesting that there was. So they did find that a fetus and then subsequently the child that might have been born, or I suppose in another situation, a child that may have miscarried and not been born, whether a defendant would have a duty to that individual as it existed and the court using precedent did indicate that there was a duty.

And then they also looked at whether or not Boeing or a defendant in this case might have breached that duty and they analyzed the conduct of Boeing in terms of the safety protocols, lack thereof, et cetera, and found that it was an arguable issue that if you could prove the medical connection between the exposures and the birth defects, that that would have been a breach of that duty. So the court allowed the Bowers to maintain this lawsuit on the grounds of the preconception duty owed by Boeing to not only its employees, but its employees’ unborn children.

The second question, and that also had to do with foreseeability, was this foreseeable. I mean, there were a variety of issues having to do simply with the duty of care owed to an unborn child. Then the next question is, well, would the exclusive remedy doctrine bar a suit? The exclusive remedy doctrine says that an injured worker, if he or she is injured at work, its only remedy is worker’s comp. That also applies to family members in most jurisdictions. A spouse or a child, a dependent child of an injured worker as a result of that worker’s injury are also precluded from bringing a lawsuit for their harm as a result of their husband or father’s injury. But

Judson Pierce:

That’s what I don’t understand, Alan, because the child or the spouse, they’re not employees of the company. So just the genesis of that, I don’t understand that as a reason for being barred –

Alan Pierce:

Well, in some states, those claims and those are called loss of consortium claims, parental consortium, spousal consortium. And consortium could mean in terms of a married couple, it could mean the impact in their marital relationships, but it also is extended to the care, comfort, support of the injured worker. A spouse suffers damages as a result of significant injuries to the injured spouse. Their homemaking duties have to increase. Sometimes they have to care for the injured worker. Their enjoyment of life is impacted. The child is deprived of their parents, injured parents,

Society, and companionship. So some jurisdictions allow family members who are not employees to bring these suits and that was allowed in Massachusetts. There was a famous case in the early 80s called the Ferita case where a spouse of Ferreira who was injured at work brought a claim for loss of consortium and she recovered. This prejudicial court said the exclusive remedy is not extended to family members. It only bars a civil suit by the employee. As a result of the Ferreira case, legislatively, the workers’ comp statute in Massachusetts and in most states or many states has been amended saying that the exclusive remedy also applies or is extended to family members who suffer a harm as a result of that injured worker’s injuries. So loss of consortium claims are barred in Massachusetts so long as the injured worker was injured at work.

Judson Pierce:

So what’s interesting here is that the child suffered their own injuries.

Alan Pierce:

Well, that’s… You’ve cut right to the chase. That is the essential difference in this case. There is no allegation that the employee, Mr. Bauer, was injured. Now he may have ingested or he may have been exposed to heavy metals and solvents. Might not have been good for him.

Announcer:

Right.

Alan Pierce:

Yeah. Yeah. They weren’t good for him. They probably were in his system. I suppose technically that could be quote an injury, but it didn’t manifest in him an illness. He didn’t have any disability from it. He didn’t need any medical treatment from it. He just presumably breathed the solvents and was exposed to them by touch. So there was no, in essence, injury suffered by Mr. Bauer that would have entitled him to workers’ comp, but when his wife became impregnated and presumably the child was then born with birth defects, that was a separate and distinct injury to that unborn and later born child. That is the distinction that if this were a loss of consortium case, that if Bower were injured in his child and his wife suffered a harm from that injury, the exclusive remedy provision would have barred it. But because there was a separate and distinct injury to the child, the court held the child had the authority or the ability through, obviously as a minor, through his parents, to bring a lawsuit.

Judson Pierce:

Interesting. So taking these allegations that paternal exposure to chemicals affect reproductive health, what are the litigation challenges that you would foresee in future cases such as these? How important will the expert medical testimony be? How strong is the current scientific literature in this area? What would plaintiffs have to prove here to really make this type of case go forward?

Alan Pierce:

And that is a good question. As I stated at the outset, this case did not go up on appeal after a determination had been made that there was a connection between the exposures at work that were alleged and the birth defects that were found at birth. However, now that the right to bring that action and have a trial by jury, the plaintiffs would face the ordinary burden of proof of showing by a preponderance of the evidence that it is more likely than not A, that there was an exposure to these particular chemicals or heavy metals or solvents, two, that the exposure arose out of the workplace and not somewhere else. Three, that as a result of that exposure, there was a connection between the birth defects suffered by the child and that exposure and that to prove that you would have to bring epidemiological evidence as to the nature of the solvents or other products and expert testimony both from perhaps a chemical expert as well as a medical expert tying that together.

Judson Pierce:

Yeah. I know in Massachusetts we have the section known as double compensation where an employer could be liable to pay himself out of the employer’s pocket for injuries that occurred due to willful or quasi-criminal misconduct. How would any mens rea from the employer knowing that these solvents were up in the air and exposing their employees to this have an impact at all, if at all, in a civil case?

Alan Pierce:

Well, it probably wouldn’t have any impact in a civil case because any workers’ comp benefits would not be applicable to the civil case for… And secondly, the injured employee or the employee himself or herself are not bringing the claim for those injuries. But certainly you have to show that the employer was negligent. If the employer was guilty of such degree of serious and willful misconduct and the employee were injured,

For example, let’s just say that we don’t have a birth defect case. Let’s say we have somebody working with asbestos and he contracts asbestos related disease. You have to show that there was an exposure to asbestos and obviously that the disease was related to that exposure. If an employer knew about the asbestos, hid that knowledge from the employees and allowed them to work around asbestos without the requisite notice that they were working with asbestos or more importantly, protective gear and were guilty of serious and willful misconduct, then presumably the asbestos victim could bring a claim for intentional misconduct. But in this particular case, the allegation wasn’t that Boeing was grossly negligent here. It was just that working around these solvents did produce the risk and there was some discussion in the case about the scientific or medical literature.

Judson Pierce:

Or acceptance of the risk. Do some employees sort of give up their right or their child’s right when it comes to acceptance of the risk? When they enter a job like that and know it’s a dangerous job

Alan Pierce:

What you’re describing, and I know you know this, is the legal doctrine of assumption of the risk. That usually bars a plaintiff from recovering against the defendant under common law tort theories if he or she assumed the risk. Assumption of the risk is not a defense in workers’ comp.

Judson Pierce:

But under the civil –

Alan Pierce:

Because the… Yeah, the person goes to work, does their job and there are risks associated with the job and injuries as a result of those risks. So the common law defensive assumption of the risk generally wouldn’t apply. And of course, in this case, it wouldn’t apply to the fetus or the unborn child or the born child.

Judson Pierce:

How can he assume, right, or she? Yeah, exactly. Interesting. All right. We will take our second break of the program and we’ll be right back to discuss this very interesting case. And we’re back with Alan Pierce to discuss the Bauer v. Boeing case. So would employers, could they face increased liability insurance costs? For example, what are the broader implications of this case and policy implications?

Alan Pierce:

Good question because the Appeals Court in Washington did also address public policy concerns and in conducting that analysis, the court noted that the legislature shall pass necessary laws for the protection of persons working in mines, factories, or other dangerous employments or employments that could be harmful to health. Again, this is from an old case, fix pains and penalties for the enforcement of SANE. And this constitutional provision constitutes a fundamental right of Washington workers for health and safety protection. Public policy, the court went on to say, demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them and be treated as a cost of production against which liability insurance can be obtained. So the court did a public policy analysis that if a business company corporation is going to manufacture products or provide services and incurs a risk of injury to those workers who engage in that activity, that they should bear the financial responsibility.