Tag Archives: exclusive remedy

Long-Awaited Ruling in King v. CompPartners

The long-awaited decision by the California Supreme Court in King v. CompPartners (2018) S232197 is finally out. In it, the court unanimously held, through a majority and two concurring opinions, that a claim for malpractice against a utilization review (UR) physician for injuries arising from a review decision for the treatment of a compensable injury could not be maintained under the workers’ compensation system and is barred by exclusive remedy.

The case will be extensively analyzed by all participants in the workers’ compensation system. This will include parsing of various comments in the two concurring opinions regarding whether the UR process is performing up to expectations. As noted by Associate Justice Goodwin Liu in his concurring opinion, “The legislature may wish to examine whether the existing safeguards provide sufficient incentives for competent and careful utilization review.” The other concurring opinion, by Associate Justice Mariano-Florentino Cuéllar, stated, “Even now, those safeguards and remedies may not be set at optimal levels, and the legislature may find it makes sense to change them.”

It is difficult to find a point in time where a thorough analysis of the system is contemporaneous with the judicial review of it. Such is the case here. The utilization review events that caused this case to be brought occurred in 2013. Given that this case was dealing with a review of prescription drugs, it is important to note that “safeguards and remedies” now include the Medical Treatment Utilization Schedule Formulary.

As stated in the formulary, “ For injuries occurring prior to Jan. 1, 2018, the MTUS Drug Formulary should be phased in to ensure that injured workers who are receiving drug treatment are not harmed by an abrupt change to the course of treatment. The physician is responsible for requesting a medically appropriate and safe course of treatment for the injured worker in accordance with the MTUS, which may include use of a non-exempt drug or unlisted drug, where that is necessary for the injured worker’s condition or necessary for safe weaning, tapering or transition to a different drug.” [8 CCR 9792.27.3(b)(1)]

See also: Where the Oklahoma Court Went Wrong  

This particular regulation also states, “Previously approved drug treatment shall not be terminated or denied except as may be allowed by the MTUS and in accordance with applicable utilization review and independent medical review regulations.” [8 CCR 9792.27.3(b)(4)]

In addition, Senate Bill 1160 (Mendoza) requires UR processes to be accredited by July 1, 2018. The accrediting agency is URAC, although the Division of Workers’ Compensation has the authority to add requirements for certification. The purpose of accreditation is to have an independent, nonprofit entity “…certify that the utilization review process meets specified criteria, including, but not limited to, timeliness in issuing a utilization review decision, the scope of medical material used in issuing a utilization review decision, peer-to-peer consultation, internal appeal procedure and requiring a policy preventing financial incentives to doctors and other providers based on the utilization review decision.” [Labor Code Sec. 4610(g)(4)]

Much has happened to the system that was under review by the court in King. To improve on this progress, we need to understand what has been done already to provide more safeguards and remedies for injured workers while being faithful to the “grand bargain” that is workers’ compensation. This cannot be done by turning back the clock.

A Victory for Exclusive Remedy on Asbestos

In a recent case, the 2nd Appellate District of California declined to open an new avenue to avoid the exclusive remedy of workers’ compensation in Melendrez v Ameron International Corporation, not only upholding the lower court’s grant of summary judgment for defendant/employer but also allowing the defendant to recover expert witness fees.

The employee, Lario Melendrez, was employed by Ameron for 24 years and was exposed to asbestos from insulation products. In 2011, he died from mesothelioma related to his asbestos exposure. His survivors/plaintiffs attempted to circumvent the exclusive remedy rule by alleging the employee had been allowed to take waste and scraps of insulated pipe home for personal use. Plaintiffs asserted the employee should not be shielded by workers’ compensation exclusivity for his non-work-related use of the employer’s asbestos products. Neither the trial court nor the appellate courts agreed with the effort to create a new exception to the exclusive remedy rule. The Appellate Court commented as follows:

“While we agree that a triable issue of fact exists whether Melendrez’s exposure to asbestos at home arose out of and in the course of his employment with Ameron, that issue is not material to the viability of Ameron’s defense of workers’ compensation exclusivity. It is undisputed that Melendrez’s exposure to asbestos in his employment with Ameron substantially contributed to his mesothelioma. Therefore, under the contributing cause standard applicable in workers’ compensation law, his mesothelioma is covered by workers’ compensation, and his separate exposure at home does not create a separate injury outside workers’ compensation coverage. Thus, plaintiffs’ lawsuit is barred by workers’ compensation exclusivity.”

Citing the recent California Supreme Court holding in South Coast Framing, the 2nd district held:

“Given the purposes of workers’ compensation, courts have long applied a broad concept of contributing cause to bring injuries within workers’ compensation coverage. In short, if a substantial contributing cause of an injury arises out of and in the course of employment, the injury is covered by workers’ compensation, even if another, nonindustrial cause also substantially contributed to the injury. As recently explained in South Coast Framing, Inc. v. Workers’ Comp. Appeals Bd. (2015) 61 Cal.4th 291 (South Coast Framing): “[T]he workers’ compensation system is not based upon fault. ‘It seeks (1) to ensure that the cost of industrial injuries will be part of the cost of goods rather than a burden on society, (2) to guarantee prompt, limited compensation for an employee’s work injuries, regardless of fault, as an inevitable cost of production, (3) to spur increased industrial safety, and (4) in return, to insulate the employer from tort liability for his employees’ injuries.’…”

The court also cited case law that had established that the exclusivity provisions of workers’ compensation also apply to collateral or derivative injuries:

“[C]ourts have regularly barred claims where the alleged injury is collateral to or derivative of a compensable workplace injury.”… see also Vacanti, supra, 24 Cal.4th at p. 815 [“courts have barred employees from suing for psychic injuries caused by their termination, or their employer’s abusive conduct during the termination process]; LeFiell, supra, 55 Cal.4th at p. 284 [“‘[c]ourts have held that the exclusive jurisdiction provisions bar civil actions against employers by nondependent parents of an employee for the employee’s wrongful death, by an employee’s spouse for loss of the employee’s services or consortium, and for emotional distress suffered by a spouse in witnessing the employee’s injuries…'”

The court further distinguished authorities proposed by plaintiff to expand the ability to escape the exclusivity clause. In each of the cases cited by plaintiff, the court noted there were findings that the employee was not performing any service related to employment or even actions prohibited by his employer. In each of those cases, the injury was solely related to the non-work-related episode, and the plaintiff offered no authority to support severing a single injury into separate components as would be required in this case.

Comments and Conclusions:

This case represents an interesting effort to evade the exclusive remedy provisions in workers’ comp. A successful plaintiff’s result could potentially have expanded the ability to file civil actions whenever an employee took home something from work that eventually contributed to a work injury. Think a carpenter who receives permission to take home a tool and later files both a WC injury claim and a civil action against his employer for allowing him to use a work tool at home that resulted in injury. The potential combinations are endless for such scenarios.

Luckily, with this case the exceptions noted by plaintiffs in their brief will remain isolated and not expanded under this ruling.

Taking a New Look at the ‘Grand Bargain’

Workers’ compensation was established more than 100 years ago as a “grand bargain” between employers and labor. Injured workers gave up their right to sue employers in civil court for workplace injuries, making workers’ compensation the “exclusive remedy” for such injuries. In exchange, injured workers received statutory benefits in a no-fault system. Over time, we have seen a number of different challenges to this grand bargain.

Is Exclusive Remedy Exclusive?

The answer to this question is clearly no. Nearly every state has a very narrow statutory exception to exclusive remedy if the injury was caused by an “intentional act” of the employer. Some states have a lower threshold if it is determined that the employer’s actions were “substantially certain” to cause injury. In both of these cases, lawsuits filed by injured workers against their employer rarely succeed, and most suits do not survive past summary judgment.

However, there are many other ways in which the exclusive remedy of workers’ compensation can be circumvented. These include:

  • Statutory Exceptions – New York employers in the building trades are still exposed to civil litigation in addition to workers’ compensation under the Scaffold Law. This allows workers in the construction industry to file suit against their employer if the injury arose from an “elevation-related hazard.” New York is currently the only state that still has such legislation in place, with Illinois repealing its Structural Work Act in 1995.
  • Third-Party-Over Actions – Some states allow civil litigation surrounding a work injury under a third-party-over action. In such cases, the employee sues a third party for contributing to the injury and then the third party brings in the employer on a contributory negligence action. For example, if an accident involves machinery, the machine manufacturer can bring the employer into the suit, alleging that it trained employees inadequately, that the machine was not properly maintained or that it was modified by the employer.
  • Dual Capacity Suits – Dual capacity suits allow the employee to sue the employer as supplier of a product, provider of a service or owner of premises. For example, if a worker is injured using a machine manufactured by the employer, some states allow that injured employee to file suit against the employer based on its negligence as the manufacturer.
  • RICO Suits – Filing claims under the Racketeer Influenced and Corrupt Organizations Act (RICO) is a more recent method to attempt to avoid exclusive remedy protections. This federal law was originally designed to fight organized crime. In Michigan, Colorado and Arizona, the courts allowed injured workers to pursue a RICO complaint against their employer on the grounds that the employer “conspired” to deny medical treatment to injured workers by limiting physician referrals and prescribing practices and exercising undue influence over treating physicians.
  • Constitutional Challenges – Constitutional challenges are the latest avenue for attempting to circumvent exclusive remedy protections. There was much attention given to the Padgett case in Florida, where a judge ruled that the workers’ compensation statutes were unconstitutional because statutory changes that reduced benefits to workers and raised thresholds of compensability had eroded the “grand bargain” to the point that it was no longer valid. This case was reversed on appeal because of a technicality, so the higher courts never ruled on the merits of the argument.

Is No Fault Really No Fault?

Again, the answer is clearly no. Many states allow for a workers’ compensation claim to be disputed if it is proven that the injured worker was intoxicated at the time of the accident. In addition, some states allow for a reduction in benefits if the accident occurred because the worker violated a safety rule, such as not following lock-out/tag-out procedures or not using protective gear.

Unintended Consequences of Statutory Change and Litigation

Courts in Missouri, Illinois and Pennsylvania have ruled that, if a work injury is excluded under the workers’ compensation statutes, the employee can bring a civil suit against the employer. The courts are hesitant to provide no means for an injured worker to pursue compensation, so when statutory language is tightened up and certain conditions are excluded from workers’ compensation coverage it opens the door for potential civil action.

This issues also arises when the workers’ compensation claim is denied because the worker is not in “course and scope” of employment. If the worker falls on the employer’s premises, and the employer denies the claim under workers’ compensation, then the employee can sue under civil liability.

Not All Workers Are Protected

In many states, there are workers who are not required to be covered under workers’ compensation. In 14 states, smaller employers with five employees or fewer do not have to secure coverage. In 17 states, there is no legal requirement for coverage of agricultural workers. Finally, half the states do not require coverage for domestic workers, and five states specifically exclude coverage for these employees.

Opt-Out Legislation

Opt-out legislation, by its very nature, allows for an option to the grand bargain of traditional workers’ compensation. What many do not realize is that workers’ compensation has always been optional in Texas. Both employers and workers can choose to opt out of the workers’ compensation system and, instead, be subject to civil litigation in the event of employee injuries.

Oklahoma now allows employers an “option” to traditional workers’ compensation. Plans must be approved by the state and must provide the same level of benefits as workers’ compensation. Such plans provide employers greater control over choice of medical providers.

Opt-out legislation is currently being considered in Tennessee and South Carolina, and it is likely that similar legislation will be introduced in additional states in the future.

Causation Thresholds

There is significant variation among states in the threshold for a condition to result in a compensable workers’ compensation claim. In Tennessee, the injury must “primarily arise” from work (50% or greater). However, in California and Illinois, if the work is a contributing factor (1% or greater), the employer is responsible for that condition under workers’ compensation. Employers argue that these low causation thresholds undermine the grand bargain by greatly expanding what is considered a workers’ compensation injury.


As workers’ compensation has evolved, there have been many exceptions to the original premise behind the “grand bargain.” The courts have continued to allow exceptions to exclusive remedy and expanded causation standards. Statutory reforms have also resulted in classifications of employees and work conditions that are excluded from workers’ compensation. These trends are expected to continue.

Is Workers’ Comp on the Ropes?

Well, the Oklahoma experiment was fun while it lasted.

Dramatic reforms there in 2013 were intended to move the state workers’ compensation system from a court-based model to an administrative one. The experiment established Oklahoma as just the second state where employers can “opt out” of workers’ comp entirely, although they are required to offer alternate, privately managed plans.

However, thanks to a court decision a week ago, employers may be opting out of comp a lot more than they intended or even desire. That is because a Pottawatomie County district judge ruled that an injured tire worker can sue his employer for negligence because the injury was “foreseeable.”

While courts in the past have allowed tort action based on extreme negligence, the concept of a “foreseeable” accident doesn’t necessarily come close to that standard. The judge’s decision certainly risks broadening the definition of when an employee may be entitled to damages. After all, it might be “foreseeable” that a prison guard could get injured in an exercise yard fight, but that doesn’t mean his employer was negligent.

Injured tire worker Darrell Duck sued his employer, Hibdon Tire Plus, for injuries to his neck and back that he sustained while using equipment to try to loosen a bolt on a wheel. Workers’ compensation attorney Bob Burke, who is representing Duck, said the court “has issued a monumental ruling that challenges the foundation of Oklahoma’s workers’ compensation system.” He says, “The sloppy drafting of that law in 2013 has caused so many problems. It has really created a crisis now.”

A number of attorneys have raised constitutional challenges to the new Oklahoma laws. I have to give them credit. When Florida underwent significant reforms in 2003, it took attorneys in that state more than 10 years of whaling away at it before they tore a few holes in the system. The Oklahoma boys seemingly have done it in less than a year.

At stake here, of course, is the future of “exclusive remedy,” not just in Oklahoma but across the nation. There has been some discussion on this over the years, but only recently have court decisions started giving urgency to the dialogue. There are several key elements playing into this new melodrama:

  1. The assigning of guilt, or blame, in a no-fault system.
  2. The erosion of benefits provided injured workers’ to the point they are no longer adequately protected by the system.
  3. Increasing burdens on employers, now responsible for co-morbidity and social issues not of their making.

The first item listed, in my view, offers the greatest potential threat to exclusive remedy. I’ve talked about this before. The case I have cited in Tennessee is a terrific example. An electrical lineman was successfully denied benefits because he failed to follow established safety rules. Employers and insurance people I know loved that decision – after all, if it is the fault of the worker, why should we have to pay? Except, the “grand bargain: and “exclusive remedy” in workers’ comp are double-edged swords. When they swing back the other way and start allowing negligence claims that include pain and suffering awards, employers will be singing a different tune. Bottom line: You cannot assign guilt in a no-fault system, either to the employee or the employer, or the entire concept will come crashing to its knees.

The Padgett case in Florida is a good example of item number two, the erosion of benefits. In that case, a judge with very little exposure to workers’ comp declared the entire system unconstitutional. The decision was largely based on what he viewed as the continuing degradation of benefits in Florida over many years since the grand bargain. He declared that the erosion undermined the original intent of the program, and that the system no longer serves Florida’s injured workers in a fair and constitutionally sound manner. While the case itself will have limited impact for jurisdictional reasons, it is a major shot across the bow for legislators and businesses in that state.

The third item I listed is not one normally cited when discussing threats to exclusive remedy, but I think it is a mistake to ignore it. Employers today are being asked – make that required – to pay for conditions and health issues that have nothing to do with a claim; and social demands along with increasing beliefs of entitlement are pressuring employers to cover much more than they would have had to do 40 years ago. As we all get old, fat, diabetic and mentally unstable, this situation will only get worse. Employers forced to pick up the tab for these significant, yet unrelated, conditions are getting fed up with the system, and are more open to its eventual demise. For these employers, cases like our Tennessee lineman are almost seen as “payback” for what they increasingly view as a lopsided and unjust system.

The fact that their injured workers also feel it is lopsided and unjust should be telling us something.

While it is true that our process-intensive, complex and confusing system has lost its way on some fronts, people anxious to return to the days of unending litigation and open liability should rethink that position. For the vast majority of employers and their injured workers, workers’ comp has worked for more than 100 years, and the statistics bear that out. There was a reason both sides worked together to create this mess in the first place; the mess it replaced was even worse.

So we should fix workers’ compensation (starting, of course, by calling it workers’ recovery) and protect the concept of exclusive remedy for another 100 years.

As for our friends in Oklahoma, appeals to the state Supreme Court are sure to manifest themselves. That story is just beginning. No one can clearly see where this trend will take the nation. Alas, while apparently injuries are “foreseeable” in Oklahoma, the future of exclusive remedy is not.

The Lesson Behind the Florida Ruling on ‘Exclusive Remedy’

In an episode of the hit television show “The Big Bang Theory,” leading character Dr. Sheldon Cooper, in admonishing his friends over his correct assumptions as to when they should depart for a movie and thus avoid a long line, decided not to say “I told you so.” Instead, he opted for the much more refined, “I warned you thusly.” I plan to emulate Dr. Cooper and make liberal use of that phrase today.

While pundits and legal experts have been carefully watching major RICO cases and other test cases around the country that threaten the sanctity of “exclusive remedy” within workers’ compensation, out of the legal swamps of Florida an unexpected ruling from a previously undiscussed case has surged forth to consume the topic in its entirety. A Miami judge on Wednesday declared Florida workers’ compensation, as an exclusive remedy, unconstitutional based on the continued erosion of benefits from when the system was established. While the final act on this play has yet to take the stage, it is a potential wake up call for the industry. After all, most of us didn’t see this coming. Most of us, that is.

I, however, warned you thusly.

More than two years ago I wrote about a case in Tennessee that denied an electrical lineman workers’ comp benefits because he had “willfully” defied established safety rules and was severely shocked as a result. He had removed protective safety gloves to attach a small nut that was very difficult to handle when the gloves were in use. The court essentially assigned blame to him in the case and found he was not entitled to benefits for his injuries, because he had violated established safety protocols that otherwise would have prevented the accident. While insurance professionals and employers around the country were taking a victory lap over this decision, I assumed a position that put me at direct odds with many. I warned that the continued erosion of the no-fault doctrine of comp was a two-edged sword and that eventually employers would get cut by the same instrument they were championing at the time.

Specifically, I wrote:

“While this decision might be a short-term victory for employers and perhaps a strong reinforcement of safety protocol, I am concerned that it fundamentally undermines the notion of workers’ comp at its core, and ultimately threatens the benefits offered those same employers; namely the concept of exclusive remedy. Employers cannot have their cake and eat it, too.

The employee made a mistake. That is quite often how these accidents happen. While there are exceptions for horseplay, drug use and extreme negligence in some jurisdictions, largely comp pays these claims because, quite frankly, that was the deal. This company has other avenues with which to deal with this if it so chooses. It can document, demote, even terminate the employee for failing to follow required procedures. But by refusing to pay his claim, and successfully getting the courts to agree, the door is open for any accident, any “willful” mistake to be used in the denial of all claims. That might be logical on the surface, but it is entirely contradictory to the no-fault precept that workers’ comp is based on. It threatens the future of comp as it was envisioned and followed. Once the “blame game” begins, employers may not have to wait long to find that it is a two-edged sword.”

I warned you thusly. I so warned you thusly.

While the case in Florida is not related to our Tennessee lineman, the corrosive principles that led to the decision share a lineage; a line that leads to reduced benefits and coverage in exchange for cost reductions. They are both cases dealing with erosion of the “Great Compromise” that created workers’ comp to begin with.

The case in Florida hinges largely on 2003 reforms that eliminated benefits for permanent partial disability. The court found that eliminating those benefits violated injured workers’ rights and determined that workers are therefore free to pursue tort claims for work-related injuries. Two other challenges to the Florida comp statutes and 2003 reforms are already scheduled for review by the Florida Supreme Court, so the entire cost-reducing effort is currently at peril. Employers that celebrated the specific reduction in benefits and cost are now likely panicked at the prospect of a new and looming liability.

You cannot say I did not warn you thusly.

At a bloggers panel at the National Workers’ Compensation Conference in Las Vegas last year, we touched on this topic and were discussing cases that threatened exclusive remedy. One employer in the audience stated out loud, in response to the concept of denying benefits based on culpability, “but it is their fault.” I responded by reminding them of the “no-fault” concept of workers’ comp and the Great Compromise that brought it about in the first place. I then asked the audience which of them would like to be held personally liable, evenly criminally liable, when their company is found “at fault” for a worker’s injuries. Would employers willingly accept tort claims when it is shown they were negligent or at fault for an accident?

Not a single person in the crowd of 300 responded in the affirmative. Boy, were you warned thusly.

We are rapidly approaching a point where societal changes and entitlement expectations will require major overhauls in the thought processes within our industry. We need an attitude shift within workers’ comp. We can no longer manage claim cost and severity rating by legislative fiat. We, both the industry and the employers it serves, need to embrace a new philosophy for dealing with these challenging issues. A return to more personal claims management within a system geared for workers’ recovery is the only path that will accommodate the needs of all parties, while preserving the intent and scope of the original Great Compromise.

In the interim, we will continue to struggle with balance and reforms. I do not necessarily agree with the Florida court decision, but I understand what led us to this point. The legislature, depending on appeal activity, will no doubt address the issue if needed and restore certain benefits to preserve the exclusive remedy portion of its law, but I fear this will leave a lesson not yet learned. We must understand our history, or we will be bound to repeat it at some point in the not-too-distant future.

You cannot say you were not warned thusly.