Where a father and son were co-employees working at an excavation site and the son was struck in the head with the bucket of a track hoe—the blow causing serious injury—and the father was summoned to the scene, where he unsuccessfully attempted to render aid to his son, the father has a cause of action against the employer for negligent infliction of emotional distress, held the Supreme Court of Wyoming [Collins v. COP Wyoming, LLC, 2016 WY 18, 2016 Wyo. LEXIS 18 (Feb. 10, 2016)]. The father’s claim was not derivative of his son’s fatal injuries. The Court said that it was based on an alleged injury that was separate and distinct from his son’s death. Moreover, since the Wyoming Workers’ Compensation Act (“Act”) does not provide benefits for a “mental-mental” injury, as described in Larson’s Workers’ Compensation Law (“Larson”), § 56.04, the father’s claim could not be barred by the exclusive remedy provisions of the Act.
A father and son, along with others, worked for an excavation company. The superintendent, Ross, instructed the son to enter a trench box while Ross excavated in the box with a large track hoe. During the operation, Ross struck the son in the head with the bucket, causing serious injury. The father was summoned and the father attempted to render aid to his son. In spite of the father’s efforts, the son died. The son’s estate received workers’ compensation benefits as a result of the death.
The father sued the employer and Ross, alleging that they had negligently inflicted emotional distress. Both defendants moved to dismiss, contending the action was barred by the exclusive remedy provisions of Wyoming’s Act. The trial court granted the motion to dismiss, holding that Anderson v. Solvay Minerals, Inc., 3 P.3d 236 (Wyo. 2000) was controlling, and that the father’s claim was barred because his injury was derivative of the son’s covered death. The father appealed.
Mental Injury Claims Not Compensable in Wyoming
The Supreme Court noted that a 1994 amendment to Wyoming’s Act amended the definition of injury to exclude any mental injury unless it was caused “by a compensable physical injury.” [see Wyo. Stat. Ann. § 27–14–102(a)(xi)(J) (LexisNexis 2015)]. The Court favorably passed upon the constitutionality of that amendment in Frantz v. Campbell Cty. Mem’l Hosp., 932 P.2d 750, 754 (Wyo. 1997), overruled in part on other grounds by Torres v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2004 WY 92, 95 P.3d 794 (Wyo. 2004).
Quoting Larson, the Court added that as a corollary, since the father’s claim for emotional distress was a claim for a mental injury that was not caused by a compensable physical injury to the father, it was not compensable under the Act, and neither the employer nor Ross was entitled to immunity.
Was the Father’s Claim Nevertheless Derivative?
The Court noted that the trial court had relied upon Anderson in finding that the father’s claim for negligent infliction of emotional distress had been “subsumed” by the Act because, as the trial court indicated, it was derivative of the son’s death. In Anderson, parents of a miner killed in the collapse of a mine sued for wrongful death and for intentional infliction of emotional distress. The parents were notified of the mine’s collapse, and they went there to wait for news about their son. Initially they were told that he was talking and joking with his rescuers, but soon after they were advised that his heart had stopped, and he was pronounced dead. The Anderson court held that in providing the death benefits articulated within the Act, the legislature subsumed the entire prospect of recovery for the death of an employee engaged in covered employment.
Here the father argued that his case was distinguishable from Anderson in two respects: (a) that unlike the parents in Anderson, the father was at the scene of the accident and fell within a class of familial plaintiffs who could recover for negligent infliction of emotional distress, and (b) as an employee, the father had suffered his own independent injury, whereas the Anderson parents were not.
Anderson Overruled, at Least in Part
The Court noted that there were “distinctions between this case and Anderson, but they ”did not provide a way around Anderson’s clear holding that a claim is derivative of a covered worker’s compensation claim ‘when there is a nexus between the injury and some condition, activity, environment or requirement of the employment.’”
The Court continued by stating:
[W]e find that emotional distress claims are direct claims between the alleged tortfeasor and the injured party, are not derivative of the associated covered injury or death, and are not necessarily barred by worker’s compensation immunity; and we overrule Anderson to the extent it holds to the contrary.
[Collins v. COP Wyoming, LLC, ¶15]
The Court also recognized that the majority of jurisdictions have held that an independent claim for negligent infliction of emotional distress is barred by workers’ compensation if it arises from a covered injury. Here, however, the distress did not arise from such a covered injury. The Court continued:
Here, [the father] alleges that he has suffered an injury separate and distinct from his son’s death. It is an injury which is outside of the “grand bargain” because worker’s compensation provides no remedy for it, and he should be permitted to go forward to try to establish his claim against [the employer] and Mr. Ross.
[Collins v. COP Wyoming, LLC, ¶20]