Duff: Can COVID Causation Presumptions Have Preclusive Impact in Tort Circumstances?| Staff Compensation Information

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Michael C. Duff

By Michael C. Duff

Tuesday October 13, 2020
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One of the more interesting factual scenarios in recent months concerns the extent of the exclusivity of employee compensation: An employee is exposed to the coronavirus, but is not hindered by COVID-19 herself.

Michael C. Duff

Instead, she carries the disease home and exposes certain others in her household to the virus, and one or more of these others will develop COVID-19. The situation is analogous to the worker who is exposed to asbestos at work and who does not develop the characteristic disease of mesothelioma herself, but someone else in the household.

While I have no empirical data on the frequency of such COVID-19 cases, I hear and read that they are being negotiated in a legal dispute.

In Larson's treatise, these claims are referred to as "independent infringement" (§101.03): A dependent spouse or parent brings a lawsuit against the worker's employer who is not being sued derivative in connection with a breach of an employer's duty to the employee Employee (a negligent violation clearly subsumed by exclusivity)) but independently in connection with an injustice committed directly against the spouse or parent.

For example, this is not the unlawful death lawsuit of a meat packing plant worker filed by a surviving family member who is entitled to workers' compensation. This type of lawsuit is prevented by the exclusivity of employee compensation (at least in the absence of willful / willful / willful / malicious conduct where the lawsuit may theoretically be available depending on the state).

In an independent infringement claim, the employee bringing home asbestos (or COVID-19) is merely a conduit for the pathogen to pass through. For this reason, it should not matter whether a state prohibits workers 'compensation for infectious diseases, since the right does not arise from workers' compensation.

I think the argument that employers owe an independent duty of care to protect predictable household members from harm in these situations is substantial, and the reported choices I made to answer the question are consistent with my intuition. See Simpkins v CSX Corp .; Anderson v. A.J. Friedman Supply Co. Inc .; Kesner v Superior Court; and Quisenberry v Huntington Ingalls Inc.

For a solid general counter-argument that exclusivity should apply, see the dissenting opinion in Quisenberry.

Let us consider the ramifications if this type of comprehensive, independent duty by MacPherson against Buick Motor Co. were to apply to this claim. Plaintiffs will undoubtedly get an easier route to a jury. The causality problems remain enormous, however. In the negligence regime, a plaintiff must determine an actual and immediate cause.

The approximate cause – usually assessed based on whether damage was foreseeable or within the scope of the negligently caused risk (the "Risk Rule") – is likely to be easy to determine. However, the actual causation is always a challenge when there are multiple possible causes of injury (or illness).

The modern crime trend is not to rigidly apply the "but for" causal test when there are multiple causes that have caused harm. For example, suppose that both in the workplace and outside of the workplace, the employee's family member caused them to contract COVID-19. Strict application of the "but for" causality would nullify the family member's entitlement, since "without" exposure at the workplace the employee would still be ill with the disease. However, according to the Restatement Third of Torts, Section 27, workplace exposure could be an actual cause of COVID-19 if workplace exposure alone is sufficient to cause the disease.

This brings me to the main problem that I want to discuss. Suppose an employee is affected by COVID-19 and is entitled to employee compensation based on a suspected COVID. Let us further assume that a family member of the employee is affected by COVID-19 afterwards. Is the family member tied to exclusivity in such a situation?

Assuming that the family member is able to pursue a tort in relation to an independent infringement theory, establishing the causation in the employee's claim for damages somehow prevents the employer / insurer from asserting the causation in the subsequent independent breach ?

The first question seems to be much more difficult than the independent claims made in the asbestos cases. In a very real way, the family member's illness arose from the worker’s injury or illness, and the pathogen originated in a sick worker who got sick at work. It seems to me to be a kind of "ticking time bomb" in which the employee's injury has its causal origin in the work, but does not manifest itself in the workplace. (The “time bomb” is placed on the employee at work, but “starts” in her living room).

The phrase is that the family member is unlikely to be associated with the employer in the manner provided for in the labor compensation laws. When the courts apply exclusivity in these circumstances, they need to explain the exact causal mechanisms, and my instinct is that many of them will not stretch the exclusivity that far for political reasons.

In the case of the second question, it must be examined whether the causality problem in cases of employee compensation and tort in a similar way is sufficiently similar to prevent the employer from “rejecting” the causality in the second procedure (independent infringement). The standards of causality for workers' compensation and negligence obviously differ.

Determining the cause of harm to workers – for example, whether a job increases the risk of injury or illness, and whether a medical cause has been identified – is very different from what I described in a negligence / tort. In the words of the restatement 2. of the judgments, § 83, comment g:

Since the powers of the tribunal are legally delimited, the tribunal normally lacks the power to rule on claims arising from the transaction in question, which, however, are based on different legal premises. As a result, an Employee Compensation Commission is usually not empowered to review claims for punitive damages for injuries intentionally inflicted on an employee in the course of their employment. A workplace discrimination agency may not have the power to investigate breach claims. These limitations on the powers of the court should include appropriate limitations on the scope of the “claim” for the purposes of the exclusion rule.

In other words, an employee compensation agency cannot make binding determinations on the cause of the damage. Estoppel notions seem particularly weak in the context of assumptions that by definition prevent full litigation over (even) causes of compensation for workers.

Employers and carriers may have compelling reasons to try to rebut the COVID-19 causality presumptions of employee compensation, but I do not believe the fear of defensive linkage in subsequent independent crime disputes to be realistic.

Michael C. Duff is Assistant Dean of Student Programs and External Relations and Professor of Law at the University of Wyoming College of Law. This entry was republished with permission from the Professors' Blog of Employee Compensation Law.