Thursday, September 29, 2016

Recent Decisions may Caution Supervisors

There has been significant discussion in American workers' compensation about "exclusive remedy." That employer protection from civil liability is important to the "grand bargain" that has been workers' compensation for the last century in much of America, for the last 81 years here in Florida. 

There are some jurisdictions that consider this "exclusive remedy" to be critical to workers' compensation. However, the Florida Court has concluded that it (and benefits, and process and more) is subordinate to attorneys fees, noting "a reasonable attorney's fee has always been the linchpin to the constitutionality of the workers' compensation law." Not "a" linchpin, but "the linchpin." See Castellanos v. Next Door Company, 192 So.3d 431, 435 (Fla. 2016). 

There are those who have said this is incongruous and curious. Some argue that in a system of mutual renunciation of rights there must be give and take from both employees and employers. They argue that in such a system there must be various "linchpins." Others argue that by definition "linchpin" means "the most important part of a complex situation or system," according to Webster. Thus, they argue that Castellanos establishes there is simply nothing about workers' compensation that is more important than attorney fees. 

Of course, the Court is correct. Decades ago, in Brown v. Allen (1953), Justice Jackson observed of the Supreme Court that "we are not final because we are infallible, but we are infallible only because we are final." A paraphrase of this has been a favorite of Supreme Court scholars since: "the Court is not last because it is always right, but it is always right because it is last." As far as state workers' compensation issues go, it is likely that the state supreme court is the end of the line. And as such, it is "final" and therefore "infallible," or always right. 

Returning to exclusive remedy, it was the subject of significant attention in Florida over the last two years. In 2014, a Circuit Judge in Miami wrote a curious order in Padgett v. State of Florida. The case had several names as the parties changed over time.

It was a very interesting ruling written by the trial judge. After a proceeding against the state of Florida, and the entry of an order concluding "exclusive remedy" was unconstitutional within the confines of a particular case (referred to as "unconstitutional as applied," discussed in A Potential Progeny of Castellanos). Though Padgett did not address "the most important part" of workers' compensation, it addressed a very important part, "exclusive remedy." In Padgett, the injured worker sought to avoid the confines of Florida workers' compensation and instead sue her employer in tort, and all that such a suit would entail. 

Florida's workers' compensation statute provides the "exclusiveness of liability" in Fla. Stat. 440.11. It says that the "liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability." This exclusivity includes "to any third-party tortfeasor and to the employee, the legal representative thereof," including the employee's family. 

And, this "exclusive remedy" protects more than just the employer. The statute also says that "the same immunities from liability enjoyed by an employer shall extend as well to each employee of the employer" in many circumstances. And, specifically "the same immunity provisions enjoyed by an employer shall also apply to any sole proprietor, partner, corporate officer or director, supervisor, or other person who in the course and scope of his or her duties acts in a managerial or policy making capacity." This "immunity" for supervisors and coworkers has been an integral part of workers' compensation for years. 

So, the Florida "exclusive remedy" has a long history and purportedly broad application. It has been in the news and a matter of discussion because of the recent challenges, like Padgett, in which some seek to escape the confines of this system and pursue tort damages. As I have mentioned before, it is also interesting and curious that other workers have simultaneously striven to forego tort entitlement and join their respective workers' compensation system, complete with these limitations and constrictions. See Tennessee and New Mexico Provisions Deemed Unconstitutional

And so, recent decisions regarding supervisors are interesting. In Oregon, a Mr. Goings sought to sue two employers and two coworkers. Goings v. CalPortlandCo., 280 Or App 395 (August 31, 2016). The trial court concluded that workers' compensation was the Plaintiff's "sole remedy" and dismissed the lawsuit. The plaintiff alleged that he was injured at work, and this "visibly impaired plaintiff’s mobility and his use of his left arm." Despite this visible impairment, plaintiff alleged that the coworkers/supervisors nonetheless "ordered plaintiff to conduct additional work that involved heavy manual labor and lifting" and this "work was certain to injure him severely under the circumstances." The plaintiff alleged that the coworker/supervisors "intended that result," i.e. "severe" injury.

Conceding that Oregon recognizes workers compensation as the "exclusive remedy," the Plaintiff sought to sue in tort under an exception there, called the "deliberate intention" exception. He argued that his injury from the "heavy manual labor" after returning to work was intended by his coworkers/supervisors. And, Plaintiff argued that the employer should be liable therefore. The Oregon Court of Appeals disagreed with Mr. Goings, agreed with the trial court, and concluded that the allegations were not sufficient to state a tort claim against the employers. 

But, not so for the coworkers/supervisors. As to these, Plaintiff argued that his claims for "assault and battery" were not precluded by "sole remedy." The appellate court notes that "aggression" is not defined in the Oregon workers' compensation statute, and that there are few appellate decisions on the point. The Court concluded that a jury "could infer" that the coworkers/supervisors knew of the prior work injury and resulting impairment, that they ordered Plaintiff to "continue performing heavy manual labor," and that they knew "plaintiff would obey it because he feared losing his job." The Court concluded that this could be (not was) "a hostile action or attack against plaintiff." As such, the Court concluded that the trial court should entertain proof of these allegations, and that dismissal of Plaintiff's case against the coworkers/supervisors was inappropriate. 

Days later, in Missouri, a September 6, 2016 decision, McComb v. Norfus and Cheese, in the Western District Court of Appeals is likewise interesting. There, a widow sued her husband's supervisors regarding wrongful death after the employee's vehicle slid from an icy road and while making a delivery. Defendant Cheese allegedly did not check the weather that day, but instructed that the employee should drive "slowly and carefully." Though informed during the shift that the worker's windshield "was freezing" the supervisors instructed him to continue his work. Despite his slow and careful speed, the vehicle flipped "several times," resulting in death. 

McComb's wife sued for wrongful death, but the trial court dismissed the suit. She sought review at the appellate court, which noted the Missouri workers' compensation statute currently provides reasonably clear immunity for "any employee of an employer." But, it noted that the law was less clear in 2009 when the motor vehicle accident in this case occurred. The Court noted that this section had been "liberally construed" within the general spirit of the workers' compensation law, but that an amendment in 2005 led to more of a strict interpretation spirit. The Court had therefore previously concluded that employees retained a "common law right of action against co-employees who do not fall squarely within the definition of 'employer.'" 

The Missouri court provides a lengthy review of prior decisions, and the development of legal analyses regarding employer's duties to employees. Some portion of this analysis is centered on whether those duties are delegable, that is whether they can be made the responsibility of others. Primary among those duties, in the facts of this case, is the non-delageble duty of providing a safe workplace. The Court concluded that there were therefore factual questions that would be relevant on whether the widow could proceed with this wrongful death claim against the supervisors, and thus dismissal was not appropriate. The Missouri decision was reported also on WorkCompCentral

In each instance, the injured worker or survivor seeks to recover from coworkers/supervisors. In each case, those supervisors are alleged to have made decisions within their responsibilities for the employer. And in each instance, the appellate court reversed the trial court's dismissal of the case on legal grounds, allowing the cases to proceed further and perhaps to consideration by a jury. In each instance, the claims against the supervisors will return to trial courts for determination of various factual questions. The potential for supervisor liability may or may not result in either verdict or adjudication. 

But, the potential for liability exists in these instances nonetheless. Does workers' compensation have more than one linchpin, or is the Webster definition of primacy persuasive? Is "exclusive remedy" an important part of workers' compensation? Is it "a linchpin," or not? Does it protect the decisions of supervisors and coworkers, or do those employees need to be concerned with the potential for personal liability through their supervisory decisions? And, will employers stand behind the decisions of their supervisors, providing a defense and indemnification?

It is an interesting time in workers' compensation. Is there erosion of the "grand bargain?"

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