Sunday, April 29, 2018
I realize that cases do not emerge from life to serve as teaching exemplars for the students in my workers’ compensation or torts classes. Nevertheless, such a case, Endres v. Creekstone Farms et al., --- P.3d ---- 2018 WL 1883918, was recently decided in Kansas on April 20. It is a case that squarely presents core considerations of the essence of the workers’ compensation-for-tort quid pro quo.
In Endres, a high-ranking employee, Steven Endres, suffered what may have been the beginnings of a heart attack at work. He was treated and returned to work by a company nurse, who allegedly misdiagnosed his condition as “gastroesophageal reflux disease.” Later, after work, Endres suffered a heart attack on the golf course and was pronounced dead in an emergency room. All legal practitioners will note the causal difficulty of this “ticking time bomb” case, and additionally appreciate the rigors of proving medical causation in workers’ compensation heart attack cases. But what makes this tragic case conceptually challenging is that, because of recent, drastically limiting changes to the Kansas Workers’ Compensation Act (cases have become harder for employees to establish), Endres never would have had an opportunity to prove workers’ compensation causation.
When Endres’s widow filed a negligence complaint in a Kansas trial court, in connection with the nurse’s alleged misdiagnosis (I omit here discussion of the dual capacity doctrine: was the nurse acting as a medical professional or as “the employer”?), that court predictably (for most of us) dismissed the complaint on a motion-to-dismiss/demurrer under the expected theory that the civil action was barred by the workers’ compensation exclusive remedy. (Dismissal at this stage is significant because all the reviewing court was left with on appeal were bare pleadings). On appeal, an intermediate Kansas appellate court remanded. First, the appellate court concluded that it could not on the pleadings (i.e., as a matter of law, on a motion to dismiss) be established that Endres had suffered a workers’ compensation-eligible injury due to recent substantial changes in Kansas workers’ compensation law. Second, the appellate court decided that, because Endres’ estate could not apparently recover under workers’ compensation, the negligence claim could not be dismissed as a matter of law. In the words of the court, “If there can be no recovery under the [Workers’ Compensation] Act, then the exclusive remedy provision of the law does not apply and the motion to dismiss should not have been granted.”
But what was the implicit reason the negligence claim could not be dismissed? Because it would leave the plaintiff without an argument for any remedy. I ask my students, every year, if a state could simply eliminate all causes of action for personal injury: suppose a state decided to eliminate both tort and workers’ compensation remedies because, overall, it found the costs of any such remedies (in terms of suppression of business activity) to exceed their benefits. Each year, my students respond, “no, of course not.” But courts have said that “no one has a vested right in any rule of the common law.” Thus, if a workers’ compensation claim were unavailable, it is far from logically axiomatic that a tort claim must necessarily be allowed. After all, the U.S. Supreme Court has said, in Duke Power Co. v. Carolina Env. Study Group, “it is not at all clear that the Due Process Clause, in fact, requires that a legislatively enacted compensation scheme either duplicate the recovery at common law or provide a reasonable substitute remedy.”
But it might first be asked how the Kansas Workers’ Compensation Act was modified to such an extent that the Endres appellate court was confident that a workers’ compensation claim was likely not maintainable. The court mentioned several alterations. The Kansas Act now excludes liability for preexisting conditions when the injury is “solely an aggravation” of a preexisting condition. A “prevailing factor” requirement was added to the Kansas Act, which now provides that “‘[p]revailing’ as it relates to the term ‘factor’ means the primary factor, in relation to any other factor. If the primary factor causing Endres' cardiac arrest, acute myocardial infarction, or death was not Nurse Young's misdiagnosis—but rather Endres' preexisting coronary condition—then the Plaintiffs’ claim is not compensable under the Act.” Most importantly, the Kansas legislature significantly changed the definition of “accident.” Under the 2015 version of the Kansas Act,
Accident means an undesigned, sudden and unexpected traumatic event, usually of an afflictive or unfortunate nature and often, but not necessarily, accompanied by a manifestation of force. An accident shall be identifiable by time and place of occurrence, produce at the time symptoms of an injury, and occur during a single work shift. The accident must be the prevailing factor in causing the injury.
The old workers’ compensation conundrum. Point to the precise moment when the injury occurred? Very often it simply cannot be done. To complicate matters, the Kansas legislature has also added a “heart amendment” to the Kansas Act requiring that “claimants must demonstrate that their coronary and cerebrovascular injuries arose out of something more than the exertion required of their usual work in the course of their regular employment.”
In the interest of space, I omit additional discussion of the appellate court’s excellent analysis. The court’s penultimate conclusion was that,
if the Plaintiffs’ claims are not compensable under the Kansas Workers Compensation Act, then the [trial] court erred when it granted the Defendants’ motion to dismiss on the pleadings. The Defendants have not met their burden to show that that Act provides for the Plaintiffs’ recovery. We cannot reasonably hold that Plaintiffs’ claim is compensable under the Act based on the allegations in the petition.
The court’s ultimate conclusion:
Within its four corners, the Plaintiffs' petition [that is, the original negligence claim – ed.] states a claim for which relief may be granted. Kansas common law recognizes a claim for “loss of chance to survive” when a plaintiff was already suffering from some injury or illness and a misdiagnosis is alleged to have diminished the plaintiff's chance of surviving from that preexisting injury or illness. The claim is similar to an ordinary medical malpractice claim, but with a reduced standard of proof of causation.
Thus, the case was remanded and either the defendant-employer (oddly enough) will have to prove the viability of a workers’ compensation claim; or the plaintiff-employee will be permitted to commence discovery on the wrongful death claim.
As I ceaselessly tell my torts and workers’ compensation classes, someone will pay for the costs of injury. If a legislature wants to write entire classes of injuries out of its workers’ compensation statute, one can hardly fault a reviewing court for employing the avoidance canon to duck the cosmic question of whether legislatures may eliminate damages for injury. While it may be true that “[a] person has no property, no vested interest, in any rule of the common law,” I sleep easier at night knowing that many courts continue to respect ancient boundaries. In my opinion, effective retraction of a workers’ compensation remedy must (at a minimum) lead to “reactivation” of tort, if the rule of law is to mean anything at all.
Michael C. Duff