Exclusive remedy for COVID-19 claims at stake in California case

A A pending California appeals court case threatens to upend a century-old workers’ compensation provision that legal experts say could subject employers to potentially unlimited tort liability and trigger an avalanche of disputes.

In the case of Matilde Ek v. See’s Candies Inc., the worker alleges that she contracted COVID-19 while working on the packaging line at a See’s Candies Inc. distribution plant in Carson, Calif., in March 2020 and then exhibited her 72-year-old husband with the novel coronavirus, which killed him a month later.

Ms Ek alleges that the plant lacked sufficient guarantees against infection, which ultimately caused Mr Ek’s death. In response, See’s Candies invoked the “exclusive remedy” rule, which prohibits such negligence claims under the large marketplace of the workers’ compensation system in California. Litigants say the exclusive remedy rule has protected employers from civil liability lawsuits in the courts for more than 100 years.

But a Los Angeles Magistrates’ Court in April 2021 allowed the case to continue, rendering a ruling that an opposing coalition of state and national employer groups argued in an amicus brief “goes to l ‘against the derivative injury rule’ – a workers’ compensation provision that prohibits injured employees from suing their employer for collateral or derivative injuries from a compensable employment injury.

In opposing See’s Candies’ objection, the judge cited a mesothelioma case from 2016, Kesner v. Superior court, in which the
The California Supreme Court has ruled that employers have “an obligation to exercise due diligence to prevent the spread of pathogens, conditions, contaminants and toxins to foreseeable third parties.” The case enabled an employee’s spouse to bring a civil action when it was alleged that the spouse had developed mesothelioma while inhaling asbestos fibers on the employee’s clothing. In the See the candies case, the trial judge found that the transmission of COVID-19 was similar and was a ground for allowing the case to move forward.


In a brief filed with the appeal to the California 2nd District Court of Appeals, the Employers’ Coalition argues that the trial court’s decision violates the provisions of the derivative injury rule such that “ a large number of COVID-related claims arising from driving in the workplace would be placed outside the scope of the workers’ compensation system.

Labor and employment advocates inside and outside California have echoed these concerns.

“The fear is that this will only create a flood of potential lawsuits,” said Jeffrey Adelson, general counsel, Adelson McLean APC in Newport Beach, Calif. “The problem I have with this case is that it has a very fine thread; it is essentially the interpretation of words. What is a collateral or derivative of an industrial accident? “

And it’s not just about COVID-19, Mr Adelson said.

“When does it stop? There could be an endless regression chain if this exception were removed. “

Davis Walsh, partner at McGuireWoods LLP in Richmond, Virginia, and editor of the book, Infectious disease litigation: science, law and procedure, said the “duty of care” provision cited in the asbestos case has advantages and disadvantages. But in the face of groundbreaking infections, vaccine opposition and speculative advice on recalls, it will be difficult to eliminate the risk of liability for employers if such a case is won by the worker.

“The upshot of this is that companies, whatever steps they take to prevent the spread of COVID in the workplace, will be prosecuted – some will be held responsible,” Walsh said.

“So far, outside of the world of worker compensation, we’ve generally seen a very limited number of lawsuits related to COVID tracking. Now that the courts have allowed these cases to continue, I think that will change – we are going to see more of these types of lawsuits, ”Walsh added.

Gregory Grinberg, managing partner of Gale, Sutow & Associates APC in Cypress, Calif., Said if the ruling stands, industrial deaths from COVID-19 transmission could mimic an asbestos liability dispute.

“If the court allows it, employers will likely face tort liability as well as the Workers’ Compensation Appeal Board,” Grinberg said.

In turn, said Mr. Grinberg, an indirect implication of the decision may be the adoption of different lines of liability coverage, “so that a prompt settlement of a workers’ compensation claim does not carry not affect the defense of a tort action “.

The case is pending before the Court of Appeal and at the end of September, the pleadings had not been scheduled.

In a 31-page amicus brief filed on August 31, a coalition of state and national employer groups – the US and California Chambers of Commerce, California Restaurant Association, National Federation of Independent Business, National Association of Manufacturers and California Workers’ Compensation Institute – challenged the trial court decision in See’s Candies Inc. v. Los Angeles Superior Court, citing violations of state workers compensation law and arguments about its potential implications.

Among the main points, the brief indicates:

“Because the plaintiffs ‘claims would not exist in the absence of the employee’s workplace injury, they are excluded from the courts and must proceed, if necessary, under the workers’ compensation system. The trial court, however, wrongly allowed the plaintiffs to pursue their negligence and local liability claims against the employer on the basis of the theory that the alleged injuries of the plaintiffs were somehow “unrelated” to the personal injury. employee’s job.

“The trial court’s ruling, if upheld, could subject employers statewide to potentially unlimited tort liability for alleged workplace injuries that the legislature intended to address in the compensation system.” workers. “

The brief continues: “By enacting the WCA, the legislature … has radically departed from it, inventing a COVID-19 exception for injuries caused by employees who allegedly contracted the virus at the employer’s workplace, then infect their family members. “

The trial court’s decision, writes the coalition, “violates this well-established principle by judicially legislating a COVID-19 exception to the long-standing rule on derivative damage.”

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