A work-related injury takes its toll in many ways.  It takes its toll on the worker, who might have to live with permanent impairment and possibly even a change in career.  It hurts the employer by depriving it of a (formerly) productive employee, increasing its insurance rates, and requiring it to walk the thin line between unreasonable losses due to a work vacancy, or risk sanctions and lawsuits for a pantheon of broken laws.

But, really, the work-place injury hurts an often silent party – the worker’s family.  Although death benefits are available in fatal injury cases, the same benefits for a Sunday afternoon car accident on the way to the grocery store aren’t available for a Tuesday morning collision while delivering bread to the same supermarket. 

Loss of consortium is that claim that family members make for loss of society – for being deprived of the benefit of a healthy and uninjured family member.  This ranges from basic family events such as picnics, baseball games, and dinners together, to interference of the more private relations between husband and wife.  Can an injured worker’s spouse sue the worker’s employer and/or insurer for loss of consortium?

No.  Not no, but heck no, according to the California Supreme Court, which recently issued a published opinion on this very issue.  In the case of LeFiell Manufacturing Co. v. Superior Court of Los Angeles, SCOC (that’s Supreme Court of California), the Supreme Court ruled in favor of the employer, reversing the Court of Appeal and instead ruling that loss of consortium is not an available benefit resulting from an industrial injury.

An injured worker filed a claim under the “power press exception” to the exclusivity of workers’ compensation, alleging the necessary elements.  An additional claim was stated as loss of consortium for the employee’s wife, who joined as plaintiff in her own right, alleging that “she had been deprived of [the injured worker’s] services in the care and management of their home and family, and of his ‘necessary duties as a husband’.”  The Court of Appeal and the Supreme Court expressly rejected that claim on procedural grounds – it could not proceed and nothing could be claimed from it. 

The Court reasoned that “where, as here, the worker’s power press injuries do not prove fatal, the Legislature has expressly restricted standing to bring the action … to the injured worker alone.” (Emphasis in original.)

Now, bear in mind, dear readers, it is not with a smile or with any pride that your humble blogger writes this, but it appears that a piece is missing from the jigsaw puzzle.  The state has regulated the relationship between the employee and the worker in cases of industrial injury, providing some sort of compensation for losses due to injury.  But the employee’s spouse and family members are not in this relationship – they are being deprived of a benefit (a healthy family member) without any recompense. 

Although the workers’ compensation system provides a trade-off of faster available benefits with a lower burden on the moving party (the worker), it provides nothing for the family members of the injured worker.  After all, we all have responsibilities at home – when we’re not on the clock, we are painting walls, changing the oil, cooking, cleaning, gardening, and/or raising kids.  Our families reasonably expect our participation in the “care and management” of our homes.

Sometimes, medical care in the form of in-home care, including cooking, cleaning, lawn care, and nursing services, can be provided as “reasonable medical treatment” for the injury.  But can anyone be hired to discharge the ‘necessary duties as a husband’?  Before you rush to the comments section to post your suggestion, please remember that this is a family-friendly blog!

Far be it from your humble blogger, heartless lawyer that he is, to ever argue in favor of increasing liability for the employers, who have enough costs and burdens to deal with in California as it is.  But something about this decision does not sit right with this attorney’s crooked sense of conscience.