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Co-worker dad who saw son die on jobsite can sue for distress

Posted On: Feb. 17, 2016 12:00 AM CST

The emotional distress claim filed by the father of a worker who died on the job isn't barred by the exclusive remedy provision of Wyoming's Worker's Compensation Act, the state Supreme Court has ruled.

Charley Collins and his son Brett Collins both worked on a job site for COP Wyoming L.L.C., a construction company based in Sheridan, Wyoming, court records show. Roger Ross was also employed by the company as the job superintendent and supervisor in charge of safety at the job site.

Mr. Ross was operating a large track hoe to excavate inside a trench box in August 2012, according to court records. He instructed Brett to work inside the box while he operated the track hoe, leading Brett to be struck in the head with the bucket of the machine. Charley attempted to administer first aid, but he wasn't able to save his son's life.

As a result of his death, Brett's estate received workers comp benefits, records show. In addition, Charley sued COP Wyoming and Mr. Ross, alleging that they negligently inflicted emotional distress upon him.

COP Wyoming and Mr. Ross filed a motion to dismiss, saying the suit was barred by the exclusive remedy provision of Wyoming's Worker's Compensation Act, according to records.

The District Court of Sheridan County agreed and granted their motion to dismiss.

Charley appealed to the Wyoming Supreme Court, records show. He argued that, because he was at the scene of the accident, “he falls into the class of familial plaintiffs who can recover for negligent infliction of emotional distress.”

The state Supreme Court reversed the district court's decision on Feb. 10, ruling that Charley's claim for emotional injury is independent of the covered death of his son.

“Charley's claim for emotional distress is a claim for a mental injury that is not caused by a compensable physical injury to him,” the ruling states. “Therefore it is not compensable under Wyoming worker's compensation, and neither COP Wyoming nor Mr. Ross is entitled to workers compensation immunity on that basis.”