Wyoming has at times maintained what I think is a fairly good symmetry with respect to the Exclusive Remedy Rule: because the workers’ compensation exclusive remedy is the quid pro quo for tort, it follows that where a category of injury is excluded from workers’ compensation coverage a remedy in tort should be available if the injury was negligently inflicted. In Collins v. COP Wyoming, 366 P.3d 521 (WY 2016) the Wyoming Supreme Court reached this result in connection with mental injuries arguably caused by work but not resulting from a work-related physical injury. Since 1994, The Wyoming Legislature has excluded such “mental-mental” injuries (an alleged psychological injury created by a non-physical cause like mental stress) from coverage under its workers’ compensation Act. 1994 Wyo. Sess. Laws ch. 86, at 287; Wyo. Stat. Ann. § 27–14–102(a)(xi)(J) (LexisNexis 2015). A symmetrical application of exclusive remedy would seem to require that a negligence action be allowed in connection with mental-mental injuries. However, in Anderson v. Solvay Minerals, 3 P.3d 236 (WY 2000) the Court had held that a mental injury caused by distress suffered from the work-related physical injury or death of another worker (there the distress of parents at the work-related death of their son) was sufficiently “physical” to be covered by the Workers’ Compensation Act and therefore not actionable in tort — even though the “physicality” derived from a different person.
In Collins v. COP Wyoming, the Court reversed the rule of Anderson. In Collins, Charley Collins worked in the same workplace with his son Brett Collins. In the course of employment Brett was severely injured by a supervisor. Charley rushed to the scene and attempted to administer first aid, but Brett died. Charley sued COP Wyoming for negligent infliction of emotional distress. The trial court dismissed under the rule of Anderson but the Supreme Court reversed concluding that the “but for” rule followed by some courts was too broad:
Here, Charley alleges that he has suffered an injury separate and distinct from his son’s death. It is an injury which is outside of the “grand bargain” because worker’s compensation provides no remedy for it, and he should be permitted to go forward to try to establish his claim against COP Wyoming and Mr. Ross.
I think this is the right result and is reminiscent of Federal District Court Judge Nancy Freudenthal’s 2012 Order in Romero v. Reiman Corp, where an undocumented worker excluded from workers’ compensation coverage by statute was permitted to pursue an ultimately successful tort action. A bargain is a bargain.