What in the world is the derivative injury rule and what does it have to do with Worker’s Compensation?
In one of the more interesting cases I have reviewed in some time, the Court of Appeals handed down a decision in late December 2021 pertaining to a COVID-19 death claim and contraction at work, See’s Candies Inc. v. Superior Court (Ek). The twist? The decedent was not the applicant, but rather, her husband.
In 2020 Arturo Ek unfortunately passed away from COVID exposure. Ms. Ek contracted COVID-19 and while recovering at home, her husband contracted the virus and ultimately succumbed to his infection. Ms. Ek subsequently filed a lawsuit claiming her employer, See’s Candies, failed to implement appropriate safety measures to mitigate employee exposure to Coronavirus. The claim made in her suit was that the employer knew or should have known that its negligent acts (alleged) would increase the risk of COVID-19 exposure amongst its workers, which could be transmitted to family members.
In response, See’s Candies filed a demurrer arguing that the suit was precluded by the “derivative injury doctrine”, a theory that states that Workers’ Compensation exclusivity applies to all claims that are “collateral to or derivative of a compensable injury.”
Normally, families of injured employees cannot sue the employer in civil court. Here, the Trial Court overruled the demurrer, stating that an injury to the applicant was not relevant to the overall claim of negligence. Upon appeal, the 2nd DCA cited Snyder v. Michael’s Stores and stated the defendant’s argument was not persuasive. They also rejected an argument about public policy concerns which would compel them to apply the derivative injury doctrine. The court also specifically referenced the ongoing pandemic and noted that factual and legal issues from the pandemic will not lead to unlimited liability. Forgive my scoffing at this thought, as it seems the court is constantly finding ways to expand liability of a defendant.
Finally, the court stated that the duty of care argument is not addressed and will ultimately need to be addressed. Specifically, if the defendant (See’s) owes/owed a duty of care to nonemployees infected with COVID-19 as a result of a direct employee contracting the disease at work. The court noted that this assessment of public policy concerns would be hashed out through the litigation process. So how does this impact Workers’ Compensation matters? For over 100 years with few exceptions injuries that occur at work will be handled via a claim for workers’ compensation benefits. Some claim that while the no-fault system is a benefit to the applicant, the loss of the right to a civil suit is a detriment to the same applicant due to the ability to not recover substantial damages.
With this decision, should it stand, the exclusive remedy rule is now diminished, possibly significantly, as a protection for employers. This means employers will now need to exercise more caution than ever in demonstrating compliance with appliable rules and regulations pertaining to workplace safety. And document, document, document that compliance.