Consortium and Workers' Compensation: The Demolition of Consortium

AuthorMichael Green - David M. Layman
PositionWilliams Professor of Law, Wake Forest University School of Law - J.D., Wake Forest University School of Law 2018
Pages778-809
Louisiana Law Review Louisiana Law Review
Volume 80
Number 3
Spring 2020
Article 8
9-15-2020
Consortium and Workers’ Compensation: The Demolition of Consortium and Workers’ Compensation: The Demolition of
Consortium Consortium
Michael Green
David M. Layman
Follow this and additional works at: https://digitalcommons.law.lsu.edu/lalrev
Part of the Torts Commons, and the Workers' Compensation Law Commons
Repository Citation Repository Citation
Michael Green and David M. Layman,
Consortium and Workers’ Compensation: The Demolition of
Consortium
, 80 La. L. Rev. (2020)
Available at: https://digitalcommons.law.lsu.edu/lalrev/vol80/iss3/8
This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital
Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital
Commons. For more information, please contact kreed25@lsu.edu.
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Consortium and Workers Compensation: The
Demolition of Consortium
Michael Green*
David M. Layman
TABLE OF CONTENTS
Introduction .................................................................................. 777
I. The Development of Wor kers’ Compensation
and Consortium ............................................................................ 782
A. Workers’ Compensation ........................................................ 782
B. Consortium ............................................................................ 784
III. Meshing Workers’ Compensation with Consortium.................... 787
IV. Interpreting Exclusive Remedy Language ................................... 795
V. The Fix and Why We Need One .................................................. 799
Conclusion.................................................................................... 806
INTRODUCTION
We frame the matter addressed in this Article with the following
hypothetical:
Wanda, while pregnant, suffers an injury immediately after toxic
fumes are negligently released while she is at work. Her fetus also
suffers injury as a result of the release but is born alive. Jim,
Wanda’s spouse, was visiting at Wanda’s workplace when the
release occurred and observed Wanda breathing the toxic fumes
* Williams Professor of Law, Wake Forest University School of Law.
 David M. Layman, J.D., Wake Forest University School of Law 2018, is
a Captain in the United States Air Force and is currently an Assistant Staff Judge
Advocate and the Chief of Adverse Actions of the 509th Bomb Wing at Whiteman
Air Force Base in Missouri. He thanks his family for their unwavering support
and Professor Green for the opportunity to collaborate.
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778 LOUISIANA LAW REVIEW [Vol. 80
and her subsequent injury, as well as suffering inhalation injury
himself.
Evidently, Jim can recover from the employer in tort for his physical
injury, while his spouse, Wanda, cannot, because workers’ compensation
law displaces tort law for accidental injury occurring due to employment.
Whether Jim and Wanda’s subsequently born daughter can recover for her
injuries suffered in utero may depend on whether those injuries were
suffered directly from exposure to the fumes or were a consequence of the
injury to her mother.1
But there are losses other than the physical ones. Wanda’s physical
injury left her in an emotional funk and uninterested in others, including
her husband and daughter. Both of them have suffered harm to the
relationship they would have had with Wanda as wife and motheran
interest commonly termed consortium. This interest encompasses
affection, comfort, advice, and other attendant benefits of the relationship.
Wanda, similarly, may suffer a comparable loss in her relationship with
her husband and daughter consequential to their physical injuries.2
1. See infra text accompanying notes 6788. Arguably, the child’s claim
arose out of the injury to Wanda if the child’s claim was consequential to Wanda’s
injury. See Peters ex rel. Peters v. Texas Instruments Inc., No. CIV.A. 10C-06-
043JRJ, 2011 WL 4686518, at *6 (Del. Super. Ct. Sept. 30, 2011) (Texas law)
(relying on consequential nature of fetus’s injury to conclude claim was barred by
workers’ compensation exclusive remedy provision while distinguishing cases in
which fetal injury was not consequential to parent’s injury); see also Sena v.
Mount Sinai Hosp., 1994 WL 411142, at *1 (Conn. Super. Ct. July 14, 1994)
(permitting child injured in utero to proceed with a negligence claim against the
mother’s employer without addressing whether child’s injury was direct or
consequential); accord Omori v. Jowa Hawaii Co., 981 P.2d 703, 703 (Haw.
1999); Ledeaux by Ledeaux v. Motorola Inc., 101 N.E.3d 116, 13132, app.
denied sub nom. Ledeaux v. Motorola, Inc., 108 N.E.3d 826 (Ill. 2018).
2. To the careful reader, Jim may have suffered a different type of emotional
harm from the distress due to his damaged relationship as a result of observing
the injury suffered by Wanda. Such a bystander negligent infliction of emotional
distress (NIED) claim might be barred by the Workers’ Compensation Act, as it
“arises from the injury” to his spouse. See infra text accompanying notes 6772;
Snyder v. Michael’s Stores, Inc., 945 P.2d 781, 785 (Cal. 1997). But see Collins
v. COP Wyoming, LLC, 366 P.3d 521, 527 (Wyo. 2016) (permitting a parent’s
bystander NIED claim based on observing his son’s death at work on the grounds
that the parent’s injury “is outside of the ‘grand bargain’ because worker’s
compensation provides no remedy for it”); Sacco v. High Country Indep. Press,
896 P.2d 411, 41718 (Mont. 1995). Wanda’s consortium claims, in contrast to
those asserted by her daughter and husband for their loss of relationship with her,
might not be barred because they are not injuries suffered within the scope of

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