Virginia: Non-Dependent Relative of Deceased Worker Caught in Catch-22

In the vast majority of states, non-dependent relatives of employees who suffer fatal work-related injuries are caught in a Catch-22. Since most state acts limit workers’ compensation death benefits to dependents, they don’t qualify. Yet, based upon the wording of typical exclusive remedy provisions within the same workers’ compensation acts, any tort recovery–e.g., in the form of a wrongful death action against the employer–is also precluded [see Larson’s Workers’ Compensation Law, §§ 100.05, 101.02]. The non-dependent relative is left wondering, “Where’s the quid pro quo for having given up the right to sue?

This scenario is illustrated in a recent decision by the Supreme Court of Virginia. In Giordano v. McBar Indus., Inc., 2012 Va. LEXIS 138 (June 7, 2012), the high court held that the unambiguous language of Va. Code Ann. § 65.2-307 precluded the personal representative of a deceased employee from maintaining a wrongful death action against the employer in spite of the fact that she was precluded, by her non-dependent status, from receiving workers’ compensation for the employee’s death.  

Facts

The facts were somewhat unusual. The husband and wife separated, but did not divorce, after some years of marriage. They lived separately, maintained two households, and kept all assets separate. Later, however, the employee sold the house in which he lived. He moved back in the house occupied by his spouse, but they continued the arrangement of separateness. They did not co-mingle any assets. Following the employee’s death in a construction accident, the surviving spouse sought workers’ compensation death benefits. Following a hearing, a deputy commissioner determined that the employee’s estate was entitled to statutory funeral expenses, but since the spouse was not a dependent of the deceased worker, no additional benefits were owed.

The spouse, having qualified as personal representative of the employee’s estate, then filed a wrongful death action against the employer and a supplier of construction materials, alleging negligence. The trial court determined that the Virginia Workers’ Compensation Commission had jurisdiction over the matter, that the exclusivity provision of the Act applied, and that defendants’ pleas in bar should be sustained.

The Court’s Analysis

The state supreme court analyzed the exclusivity provision, which states:

The rights and remedies herein granted to an employee when his employer and he have accepted the provisions of this title respectively to pay and accept compensation on account of injury or death by accident shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin, at common law or otherwise, on account of such injury, loss of service or death.

Va. Code § 65.2-307(A).

The court indicated that the Act not only bound employers and employees, it also defined the categories of persons, in addition to the employee, who were bound by the employment agreement between the employer and employee. According to the court, the clear and unambiguous language of the exclusivity statute precluded “all other rights and remedies” available to the personal representative of an employee who had accepted the provisions of the Act. The widow’s claim was, therefore, barred in spite of the fact that she could not recover under the Act. The high court did, however, find that the cause of action could proceed against the materials supplier.

Comp Act Isn’t Always About Fairness

To some, this sort of decision smacks of unfairness. “Don’t tell me that my recovery is limited to workers’ compensation benefits, then tell me I don’t qualify for benefits because I’m not dependent upon the decedent’s wages, and then tell me that I can’t pursue any tort recovery because the Act that provides me with no benefits blocks my attempts to recover outside that same Act. It isn’t fair.” Of course, the workers’ compensation scheme never claimed that it’s fair. Is it fair to require an employer without fault to pay anything? Is it fair to saddle the employer with liability in situations in which the original injury is the result of carelessness on the part of the employee, of the result of horseplay? Is it fair that the majority of states do not allow for apportionment when a substantial portion of the employee’s physical disability is attributable to personal habits or activities–smoking, overeating, non-debilitating, but pre-existing diseases and conditions?

There’s an old Southern saying, “You should never fault a peach for failing to be a pear.” Applied to the workers’ compensation setting, one perhaps should be slow to criticize workers’ compensation acts for failing to be “fair” when fairness isn’t their stated purpose. In its original conception, the typical comp Act was crafted to provide injured employees, and their dependents with some sort of income flow to substitute for that which was lost though work-connected injury. The goal was never to provide an estate benefit to non-dependents. Where there is no surviving employee and no dependents, as was true in the instant case from Virginia, that primary goal of the Act is no longer at issue. The result isn’t necessarily fair; it is consistent with the goals of the typical workers’ compensation act.