EXCLUSIVE REMEDY DOCTRINE ATTACKED ON SEVERAL FRONTS

The integrity of the exclusive remedy doctrine, the shield built into the workers compensation system to protect employers from being sued for excessive damages by injured workers, is facing new threats.

That shield is at risk from a growing tide of litigation in state courts in which workers allege they are discriminated against in the workplace after suffering a workplace injury.

Workers also are succeeding in bringing suits for damages in cases where state workers comp laws limit or bar benefits for certain claims, such as stress-related ailments.

Employers and workers comp insurers are in a constant battle with those and other efforts to circumvent the exclusive remedy doctrine.

"Periodically there are inroads on exclusive remedy. When significant, they have been closed by subsequent legislation or decisions of the court," said Eric Oxfeld, president of Washington-based UBA Inc., which analyzes workers comp and unemployment benefit issues.

For the past 86 years, liability protection for employers has been an essential part of the basic trade-off that states adopted to create the workers comp system in the United States.

Under the exclusive remedy doctrine, a worker's ability to recover for a job-related accident or illness in most states still is restricted to medical and wage-loss benefits available from an employer's statutory workers comp coverage. Employers agree to promptly pay for necessary medical treatment and limited wage-loss benefits on a no-fault basis.

In return, those benefits are designed to be a worker's exclusive remedy for occupational injuries and illnesses. Employers are supposed to be shielded from worker lawsuits based on common law theories of personal injury, which could result in high, jury-determined awards.

"Workers comp is not designed to make a person whole; it is designed to prevent hardship," noted Lex Larson of Durham, N.C., a legal expert who publishes a treatise and a newsletter on workers comp issues. Nevertheless, he added, "the exclusive remedy doctrine has always been under attack," by workers who continue to test the limits of the doctrine.

Historically, most state courts have found employers, co-workers and even company officers immune in most situations. That is true even in cases involving "aggravated negligence, breach of safety regulations or failure to correct a hazard after several injuries had occurred," according to Emily Spieler, a professor at West Virginia University College of Law in Morgantown, W.Va. She is a former chief executive officer of the state's exclusive fund.

An employer would almost have to take "a swing at an employee and break his jaw," before an exception for intentional torts could apply, Mr. Larson said.

As a legal doctrine, "exclusive remedy has been almost sacrosanct," agreed Nancy Schroeder, director of workers compensation for the National Assn. of Independent Insurers in Des Plaines, Ill. "Nearly all courts have been very supportive of exclusive remedy-until now."

Workers nationwide continue to file lawsuits seeking court permission to circumvent the doctrine and sue in state courts under tort rules that offer the potential for larger, jury-determined damages.

Depending on the state, workers have been successful in finding nearly a dozen exemptions to exclusive remedy. Those include suits filed by injured workers against:

Their employer's parent company, alleging independent acts of negligence.

An insurer, alleging negligent safety inspections.

Third parties, such as machine manufacturers, alleging product defects. Such third parties, in turn, then typically sue the employer.

Those challenges then spawn "a never-ending cycle" of activity that typically consists of workers obtaining broader recoveries through the courts followed by employers and insurers lobbying legislatures to restrict worker recoveries, said Anne Allen, state legislative counsel for the Risk & Insurance Management Society Inc. in New York.

Currently, new judicial attacks on the exclusive remedy doctrine are coming from state court rulings in discrimination cases.

State courts are beginning to allow injured workers claiming discriminatory treatment after a work-related injury to recover broader benefits under state anti-discrimination statutes, instead of being limited to workers comp benefits for their injury.

A recent computer search of court filings found about 130 cases pending in state courts that deal with employee discrimination claims and exclusive remedy, according to Ms. Spieler of West Virginia University.

Overall, "the outcome of such litigation is mixed, although I think the trend is toward allowing these claims to exist," she said.

The California Supreme Court is among the state courts wrestling with the issue.

"Two important California appellate court cases have created a conflict as to whether California's workers compensation law or California's discrimination statute, the Fair Employment and Housing Act, controls in cases of alleged discrimination after work-related injury," said Duncan MacDonald, an attorney with Gutierrez & Associates in San Francisco. The appellate cases are City of Moorpark vs. Superior Court of the County of Ventura and Cammack vs. GTE.

"Resolution of this conflict in the courts is of great importance," Mr. MacDonald said.

Resolving such conflicts between workers comp and federal discrimination laws is more difficult.

"Two federal courts have held that the Americans with Disabilities Act of 1990 pre-empts the exclusivity provision of a state workers compensation law," according to Mr. Larson's newsletter.

Those cases were Mangin vs. Westco in the U.S. District Court for the Middle District of Florida and Wood vs. Alameda in the U.S. District Court for the Northern District of California, according to Mr. Larson.

In cases of sex discrimination, nearly all courts have refused to recognize the exclusive remedy doctrine.

Barring recoveries in such federal cases because of the exclusive remedy doctrine in state workers comp laws "would violate the Supremacy Clause of the U.S. Constitution and seriously diminish the civil rights protection Congress granted to persons with disabilities," the Equal Employment Opportunity Commission, which enforces the ADA, said in a statement.

In addition to new claims in the courts, state lawmakers also may be creating the basis for future attacks on exclusive remedy, experts say.

One reason this happens is because lawmakers adopt or allow compensability rules so tightly drawn that they prevent workers from obtaining any comp benefits for what state judges consider valid job-related injuries.

"I think it will be difficult for employers to argue that they should have blanket immunity if employees are going to find that their injuries are excluded under the comp system," said Ms. Spieler.

For example, "mental-mental" stress claims-in which a mental cause, such as a clerk's emotional distress after a robbery, results in a worker's mental disability-are "the largest growing area and the most difficult to prove and disprove," said Martin Minkowitz, an attorney with Strook & Strook & Lavan in New York.

However, as a result of state legislative reforms, "there is a definitely a trend away from allowing stress claims in workers compensation," Mr. Larson noted.

"Most states that address a mental-mental case limit it by requiring a higher burden of proof and greater evidence of job-related causation," the NAII's Ms. Schroeder said.

For example, the Montana Supreme Court last year allowed two separate claimants to seek recoveries in tort lawsuits because of a lack of coverage under the state's workers comp law.

One case settled earlier this year, Stratemeyer vs. Lincoln County, involved a former deputy sheriff who alleged he suffered post-traumatic stress disorder after dealing with a teen-age girl's gunshot suicide. The county settled with the employee for $200,000.

The second case pending in trial court, Kleinhesselink vs. Chevron U.S.A, involves a company safety coordinator who allegedly suffered mental injuries and emotional distress after his employer allegedly disregarded safety suggestions that could have prevented subsequent worker deaths and injuries.

The second way state lawmakers may encourage legal attacks on exclusive remedy is by passing laws that deny or reduce benefits for injuries caused partly by employee fault, such as removing a safety device from a machine or use of drugs or alcohol.

"My concern is that the courts will look at the legislation that brings employee fault into play, then the courts may have less tolerance for an employer's fault," the NAII's Ms. Schroeder said.

For example, 10 states deny benefits to workers injured while failing to use a safety device or follow safety instructions, while a few states reduce benefits, according to statistics gathered by the National Assn. of Independent Insurers.

In addition, 21 states deny benefits to an injured worker if an accident was partially caused by his or her use of drugs or alcohol, while other states reduce such benefits.

A longstanding exception to the exclusive remedy doctrine continues to be intentional torts, in which an employers expressly intended to injure workers.

About half the states provide an exception to exclusive remedy in cases where an employer tries to deliberately hurt an employee beyond mere gross negligence or reckless conduct, said the UBA's Mr. Oxfeld.

The concept has been more liberally interpreted in Florida and a few other states by courts that have accepted the lower standard that an employer should have known with "substantial certainty" that a worker would be injured, said NAII's Ms. Schroeder.

For example, a Florida appeals court in Myrick vs. Luhrs used that more liberal definition in recently allowing a worker, who alleged that his employer removed several safety devices, to sue his employer under the intentional tort exception.

An employer's liability in such cases can be substantial.

An Iowa Supreme Court decision in December upheld a $2 million punitive damage award against IBP Inc., a meatpacking conglomerate, after it found that the employer's actions constituted intentional torts.

"This involved a case of a young worker whose injury was intentionally misrepresented by a company nurse so that the plant would not have to record it," according to Jim Ellenberger, assistant director for AFL-CIO's Department of Occupational Safety and Health in Washington.

While employers are generally accepting of the tension that exists over exclusive remedy in workers comp, employees are not.

Workers comp "is a deal that increasingly serves only employers and not employees," said Mr. Ellenberger.

"Anytime there is some type of catastrophic event and an employer is found to act maliciously, there should be a safety valve, out of fairness," RIMS' Ms. Allen said. "The problem is how to draw the line."