Loss of Consortium in Workers’ Compensation
Labor Code section 3602 provides that the “sole and exclusive” remedy available to an injured worker is the right to receive workers compensation benefits. That right protects employers from direct lawsuits by injured employees for bodily injury. Additionally, an injured worker’s spouse is likewise barred from a direct lawsuit against the employer. As long as the conditions of compensation are met, the employer is immune from an employee’s bodily injury lawsuit or a wife’s wrongful death lawsuit.
Since the exclusivity rule was established in 1911 the legislature and Courts have created a number of exceptions to the immunity granted to an employer under the Labor Code. Those exceptions include cases involving willful physical assault by an employer or co-employee, fraudulent concealment that aggravates an employee’s industrial injury, and the “power press” exception among others. In a recent Supreme Court case, the justices decided whether the spouse of an employee injured by the “knowing removal of, or a knowing failure to install” a point of operation guard which injured the employee can state a cause of action for loss of consortium. The Supreme Court found that a claim for loss of consortium cannot be stated against an employer as part of a punch press exception case.
Loss of consortium is claim made by the spouse of an injured person. In such a claim, the spouse can state a cause of action to compensate the spouse for the loss of love, companionship, comfort, care, assistance, protection, affection, society, moral support as well as the loss of the enjoyment of sexual relations or the ability to have children. Typically the loss of consortium cause of action is joined in the employee’s lawsuit. However, the damages awarded a spouse for loss of consortium are separate and distinct from the damages awarded the injured person.
In LeFiell Manufacturing Company v. Superior Court (Watrous)(2012) 55 Cal. 4th 275, the Court overruled the Court of Appeals finding that the wife could bring a loss of consortium claim predicated on the injured worker’s claim that his injuries arose out of the employer’s failure to have a point of operation guard on a punch press. In doing so, the Court pointed out that a punch press exception case is created by statute and that the statute allowing such a suit does not explicitly grant a cause of action to the employee’s spouse. In fact, the language of the statute is narrow and defines the limited factual circumstances under which an employee or his or her dependents may bring an action at law for damages for a power press injury. However, the statute does not suggest such an industrial injury is entirely outside of the workers’ compensation bargain.
The Court also noted that liability under Labor Code section 4558 can only be found if the employer has been informed by the manufacturer that a point of operation guard is required, the employer then affirmatively removes or fails to install such guard, and where the employer does so under conditions known by the employer to create a probability of serious injury or death. The Court went on to state:
“Absent facts which would establish the employer’s knowledge or action regarding the absence of a point of operation guard on a power press, the incident would not come within the exception of section 4558, and an employee would not be entitled to bring ‘an action at law for damages’ arising from the power press injury. If such action cannot be brought on its own where the facts fail to establish all the elements of the power press exception under section 4558, it follows that individual causes of action against an employer which do not meet the requirements of section 4558 cannot be bootstrapped onto a civil action for damages which is properly brought under section 4558.”
In the end the Court noted it can only interpret statutes by their explicit terms. Since the legislature did not include consortium claims within the terms of the statute, the court would not read them into the terms of Labor Code section 4558.