Parent Faces “Catch-22”: Wrongful Death Claim Barred by Exclusivity, Yet No Workers’ Comp Benefits Available
The Supreme Court of Alaska, in Burke v. Raven Elec., 2018 Alas. LEXIS 64 (May 11, 2018), affirmed the constitutionality of the state’s broad exclusive remedy provision [Alaska Stat., § 23.30.055] that bars a parent from pursuing any tort recovery against an employer whose negligence causes the death of his or her employed child even in those instances in which the parent fails to qualify for workers’ compensation benefits because he or she was not dependent upon that child for support at the time of the injury or death. The holding, while consistent with other similar cases around the nation, seems to go against the basic rule that exclusivity applies only where some right to benefits is afforded under the state Act.
Caudle, a 26-year-old apprentice electrician, sustained fatal injuries when she came into contact with a charged wire while working on a renovation project. Her employer had been hired by a general contractor to remove old light fixtures. The light switches near Caudle had been turned off, but no one had turned off the power at the electrical panel or otherwise disconnected power to the lights. Caudle used a non-contact voltage meter to check for power, and witnesses said the meter showed a green signal, indicating no voltage. She was electrocuted nonetheless and the employer was eventually cited for safety violations, paying a fine of $11,200.
Non-Dependent Parent Rule — Constitutional Challenge
The employer filed a report of injury with the Board and paid funeral expenses required by the Alaska Workers’ Compensation Act (Act). Because Caudle was unmarried and had no dependents at the time of her death, the Act limited the employer’s liability to funeral expenses up to $10,000 and a $10,000 payment to the Second Injury Fund.
Two years later, Caudle’s mother sought workers’ compensation death benefits without legal counsel. She also raised a constitutional challenge to Alaska’s exclusive remedy provision arguing, inter alia, that she would have been dependent upon Caudle in the future. She also contended the employer had been grossly negligence and should have been susceptible to a wrongful death action and would have been were it not for the unconstitutional bar on recovery.
Mother Loses Claim — Gets Hit with Attorney Fee Order
Ultimately, the Board denied her claim, holding that as a non-dependent parent, she was due no compensation. It also held it could not pass upon the constitutionality of a statute. The Appeals Commission affirmed. The Commission also ordered the mother to pay the employer’s attorney’s fees and costs (more than $11,200). The mother appealed.
The “Grand Bargain”
Initially, the Supreme Court, quoting Larson’s Workers’ Compensation Law, noted that the workers’ compensation system was a “trade-off,” sometimes called the “grand bargain,” in which workers give up their right to sue in tort for damages for a work-related injury or death in exchange for limited but certain benefits, and employers agree to pay the limited benefits regardless of their own fault in causing the injury or death. Again quoting Larson, the Court stressed that the workers’ compensation system, unlike tort recovery, did not “pretend to restore to the claimant what he or she has lost” [Larson, § 1.03].
No Violation of Constitutional Rights
The Court held the exclusivity remedy provision of the Act did not violate the mother’s constitutional rights. Citing Wright v. Action Vending Co., 544 P.2d 82 (Alaska 1975), in which the Court had held the bar to a wife’s recovery of loss of consortium was constitutional because that claim arose “on account of the injury or death” covered by the Act, the Court indicated the legislature had limited the substantive rights available to nondependent family members of workers who die in work-related accidents, and the claims processing mechanism in the Act provided the mother an opportunity to challenge the constitutionality of the Act with respect to her own rights. There was no due process violation, therefore.
The Court went on to hold the mother’s attempt to sue under the Defective Machinery Act was barred by the exclusive remedy doctrine, citing Gordon v. Burgess Constr. Co., 425 P.2d 602 (Alaska 1967) and Haman v. Allied Concrete Prods., 495 P.2d 531 (Alaska 1972).
Commission Erred in Awarding Attorney’s Fees to the Employer
The Supreme Court did through a bone to the mother as to the Commission’s order that she pay the employer’s attorney’s fees. Under Alaska Stat. § 23.30.008(d), the Commission should award attorney’s fees and costs to the prevailing party in a Commission appeal but “may not make an award of attorney’s fees against “an injured worker” absent a finding “that the worker’s position on appeal was frivolous or unreasonable or the appeal was taken in bad faith.” The Court noted that there was no legislative definition of “injured worker,” and the term was only used sporadically in the Act.
The Court held that in as much as the mother had asserted constitutional claims as a possible beneficiary of a deceased worker as well as claims more properly made by Caudle’s estate, she was “a claimant” under the Act, and as such, she was entitled to the protection afforded other claimants against having to pay attorney’s fees to the employer unless her position on appeal was frivolous, unreasonable, or the appeal was taken in bad faith. The Court specifically held that it was not. Since the appeal was not unreasonable, she should not have been ordered to pay the employer’s attorney’s fees.