Consortium and Workers' Compensation: The Demolition of Consortium

• Author: Michael Green - David M. Layman
• Position: Williams Professor of Law, Wake Forest University School of Law - J.D., Wake Forest University School of Law 2018
• Pages: 778-809

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

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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 mother—an

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 67–88. 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, 131–32, 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 67–72;

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, 417–18 (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