by M. Duane Jones, Hedrick Gardner Kincheloe & Garofalo, LLP
In the past four years, the Court of Appeals has issued two decisions which appear to negatively impact the exclusivity provision of the Industrial Commission.
The exclusivity provision is the provision which grants the Industrial Commission exclusive jurisdiction over workplace injuries. Pursuant to the Workers’ Compensation Act enacted in 1929, all workplace injuries are adjudicated in the Industrial Commission, and the only remedies available to an injured employee are those remedies outlined in the Act.
Our Supreme Court has explained that the Act “seeks to balance competing interests and implement trade-offs between the rights of employees and their employers. It provides for an injured employee's certain and sure recovery without having to prove employer negligence or face affirmative defenses such as contributory negligence and the fellow servant rule. In return the Act limits the amount of recovery available for work-related injuries and removes the employee's right to pursue potentially larger damages awards in civil actions.” Woodson v. Rowland, 407 S.E.2d 222, 227 (1991). The Act allows an employee to receive medical and indemnity benefits in a timely manner, but limits the avenues and extent of that recovery. This is the basis for the compromise.
Historically, any negligence claims brought in our superior courts by an employee against his or her employer for negligence have been dismissed. The only exceptions to this rule are Woodson claims or Pleasant claims, which involve the employer or co-employee committing intentional torts. An employee has been allowed to sue their employer in civil court where the alleged negligence involved intentional misconduct by the employer “knowing it is substantially certain to cause serious injury or death to employees and an employee is injured or killed by that misconduct.” Woodson, 407 S.E.2d at 228 (emphasis added). Likewise, an employee has been allowed to sue their co-employee in civil court for willful, wanton and reckless negligence. Pleasant v. Johnson, 325 S.E.2d 244, 249 (1985).
Recently, however, our Court of Appeals has allowed a claim for medical negligence and a claim for negligent retention or hiring to proceed in superior court without meeting the Woodson or Pleasant standard of an intentional tort. Jackson v. Timken, 828 S.E.2d 740 (2019); Marlow v. TCS, 887 S.E.2d 448 (2023). A similar error is present in both cases. The Court of Appeals has confused the jurisdictional test for the Industrial Commission with the compensability test that the Industrial Commission uses to adjudicate its claims to determine whether the employee is entitled to benefits. Furthermore, the Court has confused these tests with no regard to whether the employer or co-employee committed intentional torts.
By confusing these two tests, and failing to analyze whether an intentional tort exists, the Court of Appeals is essentially establishing that if a particular claim is not compensable under the Act, the Industrial Commission lacks exclusive jurisdiction over the claim, and the employee may be able to proceed in superior courts. This conclusion cannot be the intent of our legislature in enacting the Act, nor is it consistent with a nearly century old collection of case law interpreting the Act.
In order for a claim to be compensable under the Act, an employee must prove all three of the following elements: (1) the injury was caused by an accident; (2) the injury was sustained in the course of the employment; and (3) the injury arose out of the employment. Otherwise, the claim is not compensable, and the employee is not entitled to any benefits.
In Jackson, the Court’s ultimate error is stated in the opening sentence: “Where an injury occurs in the course of one's employment but is not caused by an accident and does not arise out of the employment, that injury does not fall under the Workers’ Compensation Act, and the injured party may not be compensated thereunder.” Jackson, 828 S.E.2d at 741. The Court is correct in stating that an injury which is not caused by an accident or which does not arise out of the employment is not a compensable injury; however, the Court mistakenly concludes the lack of meeting any one of these elements renders the claim outside of the Act.
The Court went on to conclude that if “the Industrial Commission lacks exclusive jurisdiction to hear a claim that occurs in the course of one's employment, a trial court does not err in asserting subject matter jurisdiction over that claim.” Id. The error of this reasoning is the Industrial Commission should never lack exclusive jurisdiction over an injury that occurs in the course of one’s employment, except under a Woodson or Pleasant exception.
Similarly, in Marlow, our Court of Appeals stated that an action comes within the Act if all three elements are met. Marlow, 887 S.E.2d at 453. Again, this is not a proper application of the test. Coming within the Act and being compensable pursuant to the Act are not the same thing; yet, like Jackson, the Court implicitly concluded they are the same thing. The Marlow court acknowledged that the employer conceded elements one and two were met (the injury occurred as a result of an accident and in the course and scope of employment), but since the Court of Appeals determined the injury did not arise out of the employment, the Court determined there was no exclusive jurisdiction in the Industrial Commission, and the civil suit could proceed in superior court.
However, once the Court determined the injury was sustained in the course of employment, the Court should have determined the Industrial Commission had exclusive jurisdiction, subject only to a Woodson or Pleasant exception. By combining the jurisdictional test with the compensability test, the Court of Appeals has ignored the any number of circumstances where an employee may be injured at work but is nonetheless not entitled to benefits under the Act.
While the Court of Appeals in both cases referred to the exclusivity provision, the Court glossed over the meaning of the exclusivity provision and restricted the analysis of jurisdiction solely to the compensability question of whether or not the incident arose out of the employment. In doing so, the Court of Appeals is allowing the trial court to answer a question that has been reserved for the Industrial Commission to answer.
If the compensability test is to be used to determine the jurisdiction of the Industrial Commission, then all three elements must be answered in the negative for the matter to be held to be outside of the Industrial Commission’s exclusive jurisdiction. Any other combination of negative or affirmative elements lands the claim within the exclusive jurisdiction of the Industrial Commission, and the compensability of the claim is to be determined by the Industrial Commission. Otherwise, the balance struck by the Act is replaced with imbalance, and the employer has lost all the benefits it traded, specifically an employee being prevented from pursuing civil actions, in exchange for an employee not having to prove negligence or face affirmative defenses.