February 13, 2010

Wyoming Employers are Getting Away with Murder

The Wyoming’s Workers’ Compensation Act is Killing Workers
By Heather Rozzo

             I.      Introduction
A.    Wyoming Has a Problem With Workplace Safety
      In 2008, Wyoming had the highest rate of work-related fatalities in the nation.[1]  The least populated state, Wyoming set national records in 2005 and 2007 for the number of workers killed on the job.[2]  Ironically, while Wyoming workers are dying at record rates, the oil and gas industry grossed a whopping $34 billion in revenues in this state alone in 2008.[3]  Wyoming has a problem with workplace safety.  Injured workers and their families think the problem stems from Wyoming’s workers’ compensation system, which literally allows its employers to get away with murder.[4] 
      When a Wyoming worker is injured or killed on the job, workers’ compensation is his exclusive remedy against his negligent employer.[5]  Even if an employer deliberately causes a worker’s injury or death, neither the victim nor his family can sue in tort.[6]  While most states have workers’ compensation acts that provide employer immunity for negligence in the workplace, most of these acts include an exception where the employer intentionally or recklessly harms or kills an employee.[7]  For example, Michigan’s Act allows an employee to sue her employer for intentional conduct; intent is defined in the statute as a deliberate act where the employer specifically intended to injure.[8]  An employer intends injury if it has “actual knowledge that an injury was certain to occur and willfully disregarded that knowledge.[9]  In other states, where the exception is judicially created, employees may be able to sue for willful, wanton, or reckless conduct.[10] 
      The Wyoming Act, however, absolutely immunizes employers who contribute to the Workers’ Compensation fund from all common law tort actions that are compensable under the Act.[11]  The Wyoming Supreme Court has systematically refused to create a judicial exception to the exclusivity provision of the Act.[12]  Therefore, an employer has absolute immunity from suit even if the employer intentionally kills or maims the employee, or “orders the killing of his employee when the employee is working within the scope of his employment.”[13] 
      Is it constitutional or fair for the state of Wyoming to carve out a segment of the population and grant them a license to murder?  How can we allow our employers to intentionally or recklessly injure Wyoming’s workers without consequence?  Will our workers’ compensation system fall apart if employers do not enjoy immunity for their intentional torts? 
B.     Workers’ compensation should NOT be the exclusive remedy in Wyoming when an employee is injured by the intentional acts of her employer
      Workers’ compensation should not be the exclusive remedy in Wyoming when an employee is injured by the intentional acts of her employer because 1) workers’ compensation benefits are too low to provide adequate compensation, 2) the legislature has enacted so many procedural hurdles that recovery under the Act is prevented, 3) tort awards are easier to get now because many common law defenses have been eradicated, 4) immunity is not given in other states to employers for intentional acts, 5) workers’ compensation insurance is designed to compensate for accidental loss, not purposeful loss, 6) public policy dictates against insuring against intentional acts, 7) the exclusive remedy provision creates an unsafe working environment, 8) the legislature did not intend the Act to give employers immunity for intentional acts, 9) our workers deserve to be protected from intentional harm, 10) the person who has control over the work environment should bear the risk of loss, and 11) it is constitutionally questionable to carve out a segment of the population and give them a license to murder. 
      In Part II, I will explain the compromise on which the Wyoming Act is based.  I will discuss Wyoming’s exclusive remedy provision and the strict interpretation the Wyoming Supreme Court has given it.  I will argue that the goals behind the Act are not being realized.  I will show the compromise is outdated because the tort system has changed.  I will demonstrate how workers are being forced to accept low benefits while industry profits.  I will show how the Wyoming legislature has eroded promised benefits. 
      In Part III, I will talk about how employers need to be accountable for their intentional acts.  I will show how the workplace is more dangerous as a result of the exclusive remedy provision.  I will discuss whether a change in the workers’ compensation laws would prevent accidents.  I will talk about the nature of workers’ compensation insurance and the public policy against insuring against intentional acts.   
      In Part IV, I will discuss the constitutionality of the exclusive remedy provision.   
      In Part V, I will discuss how other states have adopted the Intentional Tort Exception as a balance to the exclusive remedy provision.  I will talk about the pros and cons of having an intentional tort exception.  I will explain why Wyoming should adopt the exception. 
      In the conclusion, I propose ways that Wyoming can increase worker safety without adopting the intentional tort exception.
          II.      Background Behind the Wyoming Workers’ Compensation Act and the Exclusive Remedy Provision
A.    Wyoming’s Exclusive Remedy Provision
      The Wyoming Workers’ Compensation Act (“Act”) was passed in 1914 as a compromise between employers and employees.[14]  The legislature felt that the cost of work accidents should be borne by the employer as a cost of production.[15]  The policy is that the risk of accidental injuries should fall on the party who is most able to bear the loss and prevent harm in the workplace.[16]  The Act replaced the common law right of the worker and his dependents to sue an employer in tort for work-related injuries.[17]  In place of the old remedies, workers are given the statutory right to receive compensation out of a general fund to which employers must contribute.[18]
      Wyoming’s exclusive remedy provision provides in pertinent part: “the rights and remedies provided in this act for an employee . . . and his dependents for injuries incurred in extrahazardous employments are in lieu of all other rights and remedies against any employer . . . making contributions required by this act.”[19]  The Wyoming Supreme Court has interpreted this provision strictly, giving the employer absolute immunity from suit as long as the injury or death is covered under the Act.[20]  Some argue that the remedy must be interpreted strictly because subjecting employers to liability would undermine the workers’ compensation system.[21] 
      To determine whether an injury is compensable under the Act, the Wyoming Supreme Court uses the Baker Test.[22]  Under this test, workers’ compensation is the exclusive remedy if 1) the injury arose out of and occurred in the course of employment, 2) the injury is compensable under the Act, 3) the employer paid into the fund, and 4) the employment is lawful.[23] 
B.     The Compromise
      The Wyoming legislature passed the Act because both the employer and employee suffered under the common law system.[24]  The employer suffered by having to defend all work-related disputes in court.[25]  Employers were hit hard by hefty jury verdicts, half of which often went to attorneys.[26]  Employers wanted their liability under the workers’ compensation system to be both “limited and determinate.”[27] 
      On the other hand, the employee suffered because he had difficulty proving that the employer was at fault under the tort system.[28]  The employer had three strong defenses available: 1) assumption of the risk, 2) contributory negligence, and 3) the fellow-servant rule.[29]  If the worker did prevail, his award would be substantially reduced by attorney’s fees.[30]  The entire court process could take years during which the injured worker was not working or receiving any benefits.[31]  In response, the Wyoming legislature created the general workers’ compensation fund so that the worker would be entitled to the benefit of “certain and speedy relief without the difficulty, expense, and delays of litigation.”[32] 
      As part of the compromise, both employees and employers gave up some rights.  Employees gave up the right to a jury trial in exchange for prompt and inexpensive recovery independent of proof of fault.[33]  The employer, in exchange for immunity, assumed the responsibility to pay for claims brought by a contributorily negligent employee.[34]  Further, the employer is forced to contribute to the fund whether or not its own employees are injured.[35]       
C.    Why the Compromise is Outdated
      The employer-employee bargain is now outdated.  It is no longer as difficult for workers to prevail under tort law because it is easier to prove negligence.[36]  Many common law defenses that were valuable to employers have been eradicated.[37] 
      Workers would rather recover under the tort system because awards are much higher.  The gap between tort recoveries and workers’ compensation benefits has widened.  While the goal of tort is to return the victim to the position he was in before the loss, workers’ compensation is more in the nature of accident insurance and is not designed to provide full compensation.[38]  In 1918, the Wyoming Supreme Court wrote, “It is not the intention of the law . . . that the industry shall be compelled to support the injured workman or his dependents in all the comforts and conveniences of life during their remaining stay upon the earth.”[39]                  
      Although workers’ compensation acts allow for wage, medical, and vocational rehabilitation benefits, they do not compensate for losses that are not directly work-related.[40]  There is no pain and suffering or punitive damage award.[41] 
      Workers’ compensation benefits are too low in Wyoming to provide adequate compensation.  While jury awards are growing larger, workers’ compensation benefits haven’t been increased in Wyoming for 15 years.[42]  For example, when her husband was killed after being pinned between two cement trucks, a Wyoming widow and her four children received $2,000 per month for four and a half years in death benefits under the Act.[43]  That works out to about $108,000 of compensation for the death of a 27 year old man who was earning $60,000 a year.  Id.  A tort recovery could have easily been 10 times that amount.  When Cheryl Fried’s husband was killed on an oil rig in 2004 she received a death benefit of $120,000.[44]  Now that the award is paid out, she works part time cleaning motel rooms to support her family.[45]  When Mike VanPatten of Evanston broke his back in a drilling rig accident, he was given $7,000.[46] 
      While worker benefits are astonishingly low, the workers’ compensation fund has in excess of $1 billion in reserves.[47]  Ironically, 1,621 employers were delinquent in their workers’ compensation payments in 2008 but still enjoyed immunity from suit.[48] 
      How can the state of Wyoming allow big industry to rack up billions of dollars in profits while workers are dying in record numbers?  Some point out that the state of Wyoming has an incentive to be pro-employer.  Wyoming can attract more employers to the state by keeping workers’ compensation premiums lower than other states.  Plus, Wyoming derives $2.5 billion a year in revenue from oil and gas alone.[49]  Interestingly, the oil and gas industry historically pays much less in premiums than the state pays out in oil and gas claims.[50]
D.    How Promises Were Broken
      Under the compromise, Wyoming workers gave up their right to jury trial in exchange for speedy and certain relief.[51]  Unfortunately, legislative action has eroded the promised benefits.[52]  The Wyoming legislature has been systematically decreasing benefits while increasing procedural claim-filing hurdles.[53]  At the same time, employer and co-employee immunity have been expanded and employer premiums have been reduced.[54]                    
      Under the Wyoming Act, the claimant has the burden of proving all the essential elements of his claim for benefits.[55]  Awards are adjusted according to the worker’s age, occupation, and education.[56] 
      Relief is anything but speedy under the current system.  There are approximately 1,000 contested cases in Wyoming each year.[57]  The average contested case takes about 8 months to decide.[58]  During a contest, workers do not receive any benefits and a family can be devastated.[59]  Workers with accepted claims do not get their medical bills paid until after the final decision on a contested hearing.[60]  With no income to pay medical bills, thousands of dollars of bills end up in collections.[61]  Even though Calvin Fitzgerald ultimately prevailed in his workers’ compensation appeal, the process took 2 ½ years, during which he and his wife accumulated $35,000 in credit card debt and almost lost their house.[62] 
      Another way that the Wyoming legislature has hindered worker access to benefits is by limiting access to medical care.  In 1993, the legislature created the Wyoming Workers’ Compensation Medical Commission and gave it the power to declare what medical treatment is necessary.[63]  Many workers complain that preauthorization for treatment is now difficult to obtain and needed care is often denied.[64]  When firefighter Abe Wheeler responded to a call in which two of his friends were killed, the Act wouldn’t pay for the counseling or medications needed to treat his post traumatic stress disorder.[65]  Is this how Wyoming treats its heroes?   
      Administrative hurdles in benefit delivery, including frequent delays, make matters even worse.[66]  Workers have problems maintaining claims that have been accepted.  When a 10-pound bolt fell on Corey Johnson’s head, he suffered serious head, neck, and back injuries.[67]  But payments stopped when he failed to turn in a monthly form.[68]  Meanwhile, without his knowledge, his employer got a doctor’s release saying he could perform light duty.[69]  When Johnson couldn’t perform the new job, he was fired.[70]  Other workers also complain that they were compelled to return to work under the guise of light duty or were forced to quit their jobs.[71] 
      In conclusion, legislative action has eroded the promised benefits of speedy and certain relief.  It can take months or years to get benefits under the Act.  In the meantime, workers and their dependent families are financially and emotionally devastated.  
E.     The Wyoming Legislature Did Not Intend for Workers’ Compensation to be the Exclusive Remedy for all Claims against an Employer
            Another reason why workers’ compensation shouldn’t be the exclusive remedy is that the Wyoming legislature probably did not intend to protect employers from liability for intentional conduct in the workplace.  The purpose of the Act is to provide quick and efficient delivery of indemnity and medical benefits to injured and disabled workers at a reasonable cost to the employers.”[72]  The framers clearly intended to “preserve the right to recover damages for injury or wrongful death by any person” and to preclude “ironclad agreements,” where a worker agreed to release the company from all liability when an injury occurred.”[73]   
            The Act is not to be given a “liberal construction in favor of either party.”[74]    However, the Wyoming Supreme Court has systematically interpreted the exclusivity provision in favor of the employer.[75]  In Parker, the court held that employers are immune from their intentional tortious acts.  The concurring justice noted that “the majority holding is broad enough to protect an employer from civil liability even if the employer kills or orders the killing of his employee when the employee is working within the scope of his employment.”[76]  It is hard to believe that the Wyoming legislature could have intended employers to be immune when committing intentional murder. 
                  The Court’s interpretation of the exclusivity provision is too strict.  It abrogates
causes of action against Wyoming employers which do not fit within the original bargain.  For example, the legislature probably did not intend that the Court find the employer immune in the following types of cases:     
a.       When he knowingly allows employees to work at an unsafe site.[77] 
b.      Directing an employee to use unsafe equipment without instruction or supervision when the employee is injured as a result.[78] 
c.       Directing an employee to perform dangerous work without legally mandated safety gear where the employee dies performing the dangerous task.[79] 
d.      Immunity from an intentional infliction of emotional distress suit where the employer had knowledge of a supervisor’s sexual harassment of an employee and ratified the conduct.[80]
If the legislature really did intend to provide immunity to Wyoming employers for their intentional acts in the workplace, then the Act is unconscionable. 
      The imbalance in the current system dictates a need for change.  Either the legislature should amend the Act to include an exception to the exclusivity provision, or the Wyoming Supreme Court should craft its own judicial exception.  The bargain struck between the employer and employee is not static.[81] 
      The legislature should reexamine the need for the exclusive remedy provision in light of modern circumstances.  The worker is giving up more than anticipated in the original bargain.  A lack of adequate compensation, claim filing hurdles, and restricted access to medical care have left the worker without an adequate remedy when he is injured on the job.  Plus, it is unconscionable to give employers immunity for intentional acts. 
      Alternatively, the Wyoming Supreme Court could take the initiative to protect Wyoming’s workers.  For example, as discussed below, the Court could hold that the Act was meant to cover only accidental injuries - not intentional acts.    
       III.      The Exclusive Remedy Provision is Against Public Policy
A.    There is a Strong Public Policy against Insuring for Intentional Acts
      Workers’ compensation is the only social program designed to compensate for work-related injuries.[82]  The Wyoming system was “not intended to give compensation as damages, but is more in the nature of accident insurance.”[83]  “All of the features of industrial insurance are present.”[84]  The system is designed to pay out a fixed sum in accordance with a fixed schedule.[85]  The injured employee does not look to the employer for compensation, but the fund.[86]  When the employer pays into the fund, he is immune from tort liability for injuries compensable under the Act.[87] 
      But if the Wyoming Act was truly in the nature of accident insurance, intentional acts would be excluded.  Normally, an insurance contract only covers “accidents.”[88]  An accident is defined as an unintended and unforeseen event that is “not attributable to mistake, negligence, neglect, or misconduct.”[89]  Acts with intended results are normally excluded from insurance coverage.[90]  Interestingly, if a Wyoming worker intentionally causes his own harm or death, he is not entitled to workers compensation benefits.[91]  For example, if an employee is under the influence of drugs when he is injured, he is excluded from coverage.[92]  On the other hand, an employer is covered under the Act, even if intending harm or death or acting in reckless disregard for workplace safety.[93]  The fact that the system covers employers, but not employees, when the conduct at issue is not “accidental” is extremely unfair and does not make sense if the Act is in the nature of accident insurance.
      The coverage of intentional acts under contracts of insurance should be against public policy.  Many courts agree that punitive damages should not be covered by insurance contracts.[94]  The policy is that a party responsible for egregious conduct should directly suffer the deterrence of the penalty.[95]  Because employers do not suffer direct consequences for their intentional or reckless behavior under the current system, Wyoming’s workplaces are becoming increasingly unsafe.
B.     The Exclusive Remedy Provision Creates an Unsafe Work Environment
      The exclusive remedy provision is creating an unsafe work environment.  The number of worker deaths in Wyoming increased 33% from 2006 to 2007.[96]  The president of the Petroleum Association of Wyoming thinks these deaths are accidental and can not be prevented, “You can legislate drunk-driving laws and you’ll still have drunk drivers.  We’re going to have accidents.”[97]  Workers’ advocates disagree and argue that employers can prevent injuries.[98] 
      No worker should be killed by a controllable hazard.[99]  Even if we assume Wyoming workers hold relatively dangerous jobs, the majority of injuries involve “old and familiar hazards.”[100]  A study by the California Department of Insurance concluded that employers can directly minimize the rate and severity of injuries by 40%.[101]  A national report on workplace safety said that unsafe conditions account for most work accidents.[102]  “An unsafe work place not only creates significant unnecessary inefficiencies, but the stress and strain created adds further danger to everyone present.”[103] 
      Because workers’ compensation is a no-fault system, employers do not have an incentive to create a safe work environment.[104]  When a worker is injured, compensation is drawn from a general fund; there is no direct employer payout.  “If someone gets killed, the company says only, ‘Oops, we’re really sorry.’  It’s wrong.  We’re sending a message that there’s no responsibility.”[105] 
      In conclusion, it is against public policy to cover intentional acts by insurance.  The Wyoming Act should not cover intentional conduct by either the employee or the employer.  Insuring against intentional acts has led to an unsafe work environment in Wyoming
       IV.      The Exclusive Remedy Provision is Constitutionally Questionable
          There is a good argument that the Wyoming Legislature unconstitutionally overstepped its authority when passing the Act.  
A.    Equal Protection: Right to an Adequate Remedy & Equal Access to the Courts
      Equal protection mandates that all similarly situated people be treated alike, “both in the privileges conferred and in the liabilities imposed.”[106]  In Parker, the appellant argued that the Wyoming Workers’ Compensation Act (“Act”) denies equal protection because employers are covered for intentional acts while employees are not.[107]  The Wyoming Supreme Court held that the Act did not violate equal protection.  The concurring justice suggested that the majority’s rationale was unsound, writing, “Under the rationale of this case, if an employer intentionally forced an employee’s hand into a buzz saw, the employer would be immune from civil liability . . . On the other hand, if an employee, intentionally, or through culpable neglect, put his hand into a buzz saw, he would not collect workers’ compensation benefits.”[108] 
      Meyer raised the equal protection argument that the Act singles out “employees” and limits their right to a remedy.[109]  Before the Act was passed, the Tenth Article of the Wyoming Constitution read in pertinent part, “No law shall be enacted limiting the amount of damages to be recovered for causing the injury or death of any person.  Any contract or agreement with any employee waiving any right to recover damages for causing the death or injury of any employee shall be void.”[110]  In response to Meyer’s argument, the Wyoming Supreme Court said that only an “ordinary interest” was at stake and a rational basis test would be used.[111]  The Court then held the classification was reasonable in view of the State’s purpose of obtaining harmony among employees.[112]  After Meyer, constitutional attacks against the Act were dismissed as having a rational basis.[113] 
      It was not until twenty-two years later that the Wyoming Supreme Court changed course.  After determining in Mills that the right of access to the court was a “fundamental” right, the Court employed strict scrutiny to strike down the Act’s co-employee immunity provision.[114]  The Court held that the State’s concerns of 1) maintaining a stable fund, and 2) promoting worker harmony, did not justify the legislature’s infringement upon a fundamental right.[115]  In the decision, the Court wrote that the State has an “undeniable interest in prohibiting an individual from committing an intentional tort with out the possibility of liability.”[116]  The majority quoted an Ohio case stating that insurance against intentional torts is against public policy.[117]  Justice Cardine noted that he would have struck down the co-employee immunity provision on the ground that it unconstitutionally eliminates the right to recover damages in violation of the Wyoming Constitution.[118]  Justice Urbigkit opined that it is unconstitutionally impermissible to “legislate a more dangerous place to work.”[119] 
      The employer immunity provision should be reexamined under the principles outlined in Mills.  The same arguments and policies that the court found persuasive in Mills also apply to employer immunity.  The State’s concerns are identical and the injured workers’ fundamental right is the same.  Upon reexamination, the Court should use a strict scrutiny analysis to strike down the employer immunity provision as unconstitutional. 
          V.      The Intentional Tort Exception Adopted by Other States
A.    How the Intentional Tort Exception Works
      States that provide an exception to the exclusive remedy provision either allow injured workers 1) to collect additional statutory damages, or 2) elect to bring a tort suit against the employer when he acts intentionally.[120]  The Maryland statute provides that “if a covered employee is injured or killed as the result of the deliberate intent of the employer,” the employee, or his dependents, may either 1) bring a claim for compensation, or 2) bring an action for damages against the employer.[121]   If a worker elects to sue in tort and fails, however, he will be left without any remedy.[122]  
      Other states add an additional statutory penalty to a worker’s award when the employer’s conduct is serious or willful.  For example, California increases the award by 50% and Massachusetts increases it by 100%.[123] 
      To recover under the statutes, an employee must prove that the employer’s conduct was intentional or willful.  Under the California statute, willfulness means that the employer knew of a dangerous condition but failed to remedy it.[124]  Alternatively, willfulness can be shown if the employer violated a known safety law.[125]  
      Wyoming should follow the lead of other states and add a penalty provision to the Act to deter unsafe employer behavior.  If employers were hit directly in the pocketbook when intentionally harming an employee, they would have an incentive to act more safely.  The penalty should be directly payable by the employer to the injured worker; the money should not come out of the general fund.  Intentional conduct should be defined in the statute and employees should be able to prove willfulness by showing that safety laws were not followed.         Opponents argue that chipping away at employer immunity will undermine the system.[126]  Others point out that a mere penalty may not be sufficient to deter an employer from unsafe conduct.[127]  Despite these arguments, more and more states are enacting some form of intentional tort exception to deter or punish an employer for intentional conduct in the workplace.  
B.     The Problem of Proving Intent
      One problem with the intentional tort exception is that it is difficult for the injured worker to prove intent.  States generally take two different approaches when defining what conduct is intentional or willful.  Some states strictly interpret “intent” to require that the employer act with deliberate, specific intent to kill or injure an employee before the exception is triggered.[128]  In these states deliberate means deliberate, and acts of gross negligence are not excluded from coverage.[129]  Under the more lenient view, however, something less than specific intent can be shown to trigger the exception (e.g. substantial certainty, gross negligence, or carelessness).[130] 
      States with an intentional tort exception have determined that immunity from tort is not appropriate when the employer:
                                                                                i.      Knowingly fails to provide an employee with tools necessary for safe job performance.[131]
                                                                              ii.      Knowingly places inexperienced employees in a job.[132]
                                                                            iii.      Removes a safety feature from equipment with knowledge that injury will likely result.[133]
                                                                            iv.      Fails to install a safety feature where informed by the manufacturer that the feature is required to prevent injury and where lack of installation creates a probability of serious injury.[134]
                                                                              v.      Deliberately hits or strikes the employee with a hand or an object.[135]
                                                                            vi.      Knowingly requires an employee to work at an unsafe worksite.[136]
C.    Should Wyoming Adopt the Intentional Tort Exception?
      Wyoming should enact the intentional tort exception when the employer enagages in the type of willful conduct outlined above.  In Wyoming, actual knowledge is not required to prove willfulness.[137]  “Willful and wanton misconduct is the intentional doing of an act, or an intentional failure to do an act, in reckless disregard of the consequences and under circumstances that a reasonable person would know would result in harm.”[138]  This definition would allow the intentional tort exception to be triggered when a Wyoming employer knowingly causes an employee to work in an unsafe environment or without proper safety gear.   In remedy, the injured worker should be allowed to collect additional statutory damages.  The damages should not be paid from the general fund, but borne by the employer directly.  Allowing increased awards would provide an incentive for employers to act more responsibly.     

       VI.      Conclusion
A.    The Exclusive Remedy Provision is Unconscionable
      The exclusive remedy provision is unconscionable because: 1) workers’ compensation benefits are too low to provide adequate compensation, 2) the legislature has enacted so many procedural hurdles that recovery is prevented, 3) tort awards are easier to get now because many common law defenses have been eradicated,  4) immunity is not given in other states to employers for intentional acts, 5) workers’ compensation insurance is designed to compensate for accidental loss, not purposeful loss, 6) public policy dictates against insuring against intentional acts, 7), the exclusive remedy provision creates an unsafe working environment, 8) the legislature did not intend the Act to give employers immunity for intentional acts, 9) our workers deserve to be protected from intentional harm, 10) the person who has control over the work environment should bear the risk of loss, and 11) it is constitutionally questionable to carve out a segment of the population and give them a license to murder. 
B.     Proposed Solutions
      Besides adopting an intentional tort exception, the state of Wyoming should actively involve itself in preventing workplace accidents.  Employers need other incentives to act safely.  Wyoming could adopt the following strategies to show it cares about worker safety: 
1.      Requiring an employer to pay an escalating penalty with each occurrence of the same type of preventable accident (e.g. ingestion of a toxic substance).  The money could be spent on researching the most common workplace hazards in Wyoming and eliminating them.   
2.      Developing safety protocols that target recurring injuries. 
3.      Hiring an investigator to visit unsafe work sites where accidents occur frequently or deliberately. 
4.      Establishing an anonymous hotline where workers can voice concerns about workplace safety. 
5.      Requiring employers to share in the cost of a safety advisor who inspects worksites and equipment, and who advises employers concerning safety laws. 
6.      Returning partial premium payments to employers who have no accidents.   Rewarding employers who significantly lower accident levels. 
7.      On the other hand, we can also make an employee who recklessly or intentionally contributes to his own harm forfeit a percentage of his benefits. 
            In conclusion, although Wyoming is the least populated state, it continues to set records for workplace fatalities.  Many of these deaths could be prevented by imposing harsher penalties on employers who intentionally cause accidents.  Allowing employers to have immunity for intentional conduct is unconscionable and contributes to an unsafe work environment.  Either the legislature or judiciary should immediately craft an intentional tort exception to the exclusive remedy provision.  Alternatively, the State should become more active in preventing workplace accidents.  Action needs to be taken now before Wyoming sets the record for work place fatalities again next year. 

[1] Dustin Bleizeffer, Worker Deaths Lead to Contentious Legislation, Casper Star-Tribune, Feb. 2, 2009, available at http://www.casperstartribune.net [hereinafter Contentious Legislation].
[2] Jared Miller, Worker Deaths Hit Record Number in 2007, Casper Star-Tribune, Aug. 29, 2008, available at http://www.casperstartribune.net [hereinafter Worker Deaths Hit Record Number]. 
[3] Contentious Legislation, supra.
[4] Letter to Editor, Caper Star-Tribune, Feb. 19, 2009, available at http://www.casperstartribune.net; Dustin Bleizeffer, Worker Advocates Aim to Hold Oil Companies Liable, Caper Star-Tribune, Jan. 27, 2009, available at http://www.casperstartribune.net [hereinafter Worker Advocates]; Parker v. Energy Development Co., 691 P.2d 981 (Wyo. 1984). 
[5] Wyo. Stat. §27-14-104 (2001). 
[6] Parker, supra note 4 at 981. 
[7] See, e.g., Worker’s Disability Compensation Act of Michigan, §418.131.[7] 
[8] Id. 
[9] Id. 
[10] Thomas Schroder, Workers’ Compensation: Expanding the Intentional Tort Exception to Include Willful, Wanton, and Reckless Employer Misconduct, Notre Dame L. Rev. 890 (1983) (describing how courts have been reluctant to support an intentional tort exception for misconduct that is not intentional).     
[11] Baker v. Wendy’s, 687 P.2d 885 (Wyo. 1984).  
[12] Anderson v. Solvay Minerals, 3 P.3d 236 (Wyo. 2000); Wessel v. MAPCO, Inc., 752 P.2d 1363 (Wyo. 1988); Parker v. Energy Dev’t Co., 691 P.2d 981 (Wyo. 1984); Estate of Gordon McBridge v. Dravo Corp., 603 F.2d 156 (Wyo. 1979).
[13] Parker, supra note 4 at 981.   
[14] Zancanelli v. Central Coal & Coke Co., 173 P. 981, 989 (Wyo. 1918).
[15] Meyer v. Kendig, 641 P.2d 1235 (Wyo. 1982).
[16] Zancanelli, supra note 14 at 988 (quoting  Jensen v. Southern Pac. Co., 215 N.Y. 514 (1915)).
[17] Wyo. Stat. §27-14-104. 
[18] Zancanelli, supra note 14 at 988 ( (quoting  Jensen v. Southern Pac. Co., 215 N.Y. 514 (1915)).
[19] Wyo. Stat. §27-14-404.  
[20] Parker, supra note 4 at 981.   
[21] Joseph King, Jr., The Exclusiveness of an Employee’s Workers’ Compensation Remedy Against His Employer, 55 Tenn. L. Rev. 405, 411 (1988). 
[22] Baker v. Wendy’s of Montana, 687 P.2d 885, 889 (Wyo. 1984). 
[23] Id. 
[24] Zancanelli, supra note 14 at 989.
[25] Id. 
[26] Id. at 988. 
[27] David Lambert, From Andrews to Woodson and Beyond: The Development of the Intentional Tort Exception to the Exclusive Remedy Provision - Rescuing North Carolina Workers from Treacherous Waters, 20 N.C. Cent. L.J. 164, 169 (1992)
[28] Andrea Giampetro-Meyer, Renegotiating the Bargain: An Analysis and Evaluation of Alternatives  for Revising the Exclusive Remedy Provision in Maryland’s Workers’ Compensation System,  21 U. Balt. L. Rev. 51, 54 (1991) (discussing why the exclusive remedy provision in Maryland is unfair). 
[29] Id. 
[30] Id. 
[31] Id.
[32] Stephenson v. Mitchell, 569 P.2d 95, 98 (Wyo. 1977). 
[33] Erwin Barbre, Annotation, Workmen’s Compensation Provision as Precluding Employee’s Action Against Employer for Fraud, False Imprisonment, Defamation, or the Like, 46 A.L.R. 3d 1279 (1972). 
[34] Zancanelli, supra note 14 at 990 (quoting Jensen v. Southern Pac. Co, 215 N.Y. 514 (1916). 
[35] Mountain Timber v. State of Washington, 243 U.S. 219, 223 (1917). 
[36] Exceptions to the Exclusive Remedy Requirements of Workers’ Compensation Statutes, 96 Harv. L. Rev. 1641, 1645 (Harvard L. Rev. Assn., 1983).
[37] Id. 
[38] Id. at 1642.
[39] Zancanelli, supra note 14 at 988.
[40] Harvard L. Rev. Assn., supra note 36, at 1642-43. 
[41] Andrea Giampetro-Meyer, Renegotiating the Bargain: An Analysis and Evaluation of Alternatives for Revising the Exclusive Remedy Provision in Maryland’s Workers’ Compensation System, 21 U. Balt. L. Rev. 51 (1991). 
[42] Dustin Bleizeffer, Workers’ Comp Bills Clear Initial Approval, Casper Star-Tribune, Feb. 16, 2009, available at http://www.casperstartribune.net [hereinafter Workers’ Comp Bills].
[43] Letter to Editor, Casper Star-Tribune, March 16, 2008, available at http://www.casperstartribune.net.
[44] Contentious Legislation, supra note 1. 
[45] Id. 
[46] Dustin Bleizeffer, Do Injured Workers Get Enough? Casper Star-Tribune, March 17, 2008, available at http://www.casperstartribune.net [hereinafter Do Injured Workers Get Enough?].
[47] Dustin Bleizeffer, Surplus Prompts Study of System, Casper Star-Tribune, Mar. 19, 2008, available at http://www.casperstartribune.net [hereinafter Surplus Prompts Study]; Workers’ Comp Bills, supra note 42.     
[48] Dustin Bleizeffer, Workers’ Comp Fraud Difficult to Measure, Casper Star-Tribune, March 16, 2008, available at http://www.casperstartribune.net [hereinafter Workers’ Comp Fraud].   
[49] Contentious Legislation, supra note 1. 
[50] Casper Star-Tribune, Mar. 11, 1986, available at http://www.casperstartribune.net (oil and gas paid only $6.8 million in premiums while the Workers’ Compensation Division paid out $13.5 million in oil and gas related claims). 
[51] Zancanell, supra note 14 at 989. 
[52] George Santini, The Breaking of a Compromise: An Analysis of Wyoming’s Workers’ Compensation Legislation, 33 Land and Water L. Rev. 489 (1998). 
[53] Id. at 514. 
[54] Id. at 519-521.

[55] Martinez v. State, ex rel. Workers' Compensation Div., 917 P.2d 619, 621 (Wyo. 1996); (Elements: “An injury, arising out of and in the course of employment while at work in or about the premises occupied, used or controlled by the employer and incurred while at work in places where the employer's business requires an employee's presence and which subjects the employee to extrahazardous duties incident to the business.” § 27-14-102(a)(xi)). 
[56] Wyo. Stat. Ann. §27-14-405.      
[57] Allison Rupp, Committee Looks at Workers Comp, Casper Star-Tribune, June 3, 2008, available at http://www.casperstartribune.net. 
[58] Id. 
[59] Id. 
[60] Id.  
[61] Id.   
[62] Id.
[63] George Santini, supra note 52 at 507. 
[64] See, e.g., Casey Madrid of Wheatland, Letter to Editor: Bureaucracy Adds Insult to Injury, Caper Star-Tribune, Apr. 30, 2008, available at http://www.casperstartribune.net. 
[65] Do Injured Workers Get Enough? supra note 46. 
[66] Id. 
[67] Dustin Bleizeffer, They Starve You Out, Casper Star-Tribune, Mar. 16, 2008, available at http://www.casperstartribune.net [hereinafter They Starve You Out].   
[68] Id.  
[69] Id. 
[70] Because his accident occurred on tribal lands, Johnson was able to bring suit against a 3rd party employer.  Out of the judgment, Johnson was forced to fork over $130,000 to repay the WC fund for medical treatment he received. 
[71] Dustin Bleizeffer, Do Injured Workers Get Enough? Casper Star-Tribune, Mar. 17, 2008 (online comments in response to posted article) available at http://www.casperstartribune.net.     

[72] Wyo. Stat. §27-14-101(b). 
[73] Mills v. Reynolds, 837 P.2d 48 (Wyo. 1992) (Cardine, J., specially concurring). 
[74] Wyo. Stat. §27-14-101(b).
[75] See, e.g. Mauch v. Stanley Structures, 641 P.2d 1247, 1252 (Wyo. 1982). 
[76] Parker, supra note 4 at 981.
[77] See, e.g., Wessel v. MAPCO, 752 P.2d 1363 (1988) (employer told 8 pipeline welders without safety gear to enter a pit filled with poisonous vapors and to just “hold their breath” while investigating a pressure leak.  Even though 7 crew members were seriously injured and one died, the employer was immune from suit even though deliberately ignoring safety laws). 

[78] See, e.g., Mills v. Reynolds, 837 P.2d 48 (1992) (employee severely injured after employer directed him to use a faulty regulator which burst and struck him in the face); Jordan v. Delta Drilling Co., 541 P.2d 39 (Wyo. 1975) (employee killed when defective valve without a pressure gauge whipped around and struck him in the head).  
[79] See, e.g., Mauch v. Stanley Structures, 641 P.2d 1247, 1251 (1982) (where employee died after inhaling concrete dust).  
[80] Baker v. Wendy’s, 687 P.2d 885 (1984). 
[81] A Workman’s Restoration System in Three Supplemental Studies for the Nat’l Comm’n on State Workers’ Compensation Laws 9 (1973) (describing why state legislatures and the judiciary should not be reluctant to reconstruct the original bargain between the employer and employee). 

[82] Emily Spieler, Perpetuating Risk? Workers’ Compensation and the Persistence of Occupational Injuries, 31 Hous. L. Rev. 119, 125 (1994). 
[83] Zancanelli, supra note 14 at 989; See also Meyer v. Kendig, 641 P.2d 1235 (Wyo. 1982).  
[84] Zancanelli, supra note 14 at 988.
[85] Id. 
[86] Id. 
[87] Id.
[88] Williston on Contracts §49:115.
[89] Black’s Law Dictionary 15 (8th ed. 1999). 
[90] Williston on Contracts §49:115. 
[91] Svoboda v. Wyo. State Treas. ex rel. Workers’ Comp. Div., 599 P.2d 1342, 1346 (Wyo. 1979). 
[92] Id. 
[93] Parker, supra note 4 at 986.
[94] Lira v. Shelter Insurance Co., 913 P.2d 514, 517 (Colo. 1996); PPG Industries Inc. v. Transamerica Insurance Co., 975 P.2d 652, 658 (Cal. 1999). 
[95] Lira, supra note 94 at 517.
[96] Worker Deaths Hit Record Number, supra note 2.
[97] Contentious Legislation, supra note 1.
[98] Emily Spieler, Perpetuating Risk? Workers’ Compensation and the Persistence of Occupational Injuries, 31 Hous. L. Rev. 119, 125 (1994). 

[99] Injury Control in the 1990’s: A National Plan for Action, Centers for Disease Control Occupational Injury Panel 329 (1992). 
[100] Spieler, supra note 98 at 146.
[101] Calif. Dept. of Insurance, Lowering Workers’ Compensation Insurance Costs by Reducing Injuries 11 (1993).  
[102] Exceptions to the Exclusive Remedy Requirements, 96 HVLR 1641 (quoting Interagency Task Force on Workplace Safety and Health (1978) [data for Wisconsin]). 
[103] Mills v. Reynolds, 837 P.2d 48, 50 (Wyo. 1992).    
[104] Letter to Editor, Caper Star-Tribune, Feb. 19, 2009, available at http://www.casperstartribune.net.    
[105] Id.   
[106] Small v. State, 689 P.2d 420, 425 (Wyo. 1984). 
[107] Parker, supra note 4 at 987.
[108] Parker, supra note at 987 (Brown, J., specially concurring). 
[109] Meyer v. Kendig, 641 P.2d 1235 (Wyo. 1982). 
[110] Wyo. Const. Art. 10, §4 (Pre-1914). 
[111] Meyer, supra note 109 at 1239.
[112] Id. at 1241.  
[113] See, e.g., Mauch v. Stanley Structures, 641 P.2d 1247 (Wyo. 1982) (rejecting argument based on Article 3, §27 of the Wyoming Constitution that “laws of a general nature shall have uniform operation”). 
[114] Mills v. Reynolds, 837 P.2d 48 at ¶12 (Wyo. 1992). 
[115] Id. at ¶ 14.   
[116] Id. at ¶ 15.
[117] Id. 
[118] Id. at ¶ 19, Cardine, J., specially concurring. 
[119] Id. at ¶ 32, Urbigkit, J., specially concurring. 

[120] Compare MD. Code Ann., Labor & Emp. §9-509(d) (1991) (allowing an employee to elect to file a work comp claim or to bring suit against the employer) with Cal. Lab. Code §4553 (allowing an employee to collect additional statutory damages). 
[121] MD. Code Ann., Labor & Emp. §9-509(d).
[122] Thomas Schroeder, Workers’ Compensation: Expanding the Intentional Tort Exception, 58 Notre Dame L. Rev. 890, 902 (1983).
[123] Cal. Lab. Code §4553; Mass. Gen. Laws Ann ch. 152, §28 (West 1988). 
[124] Cal. Lab. Code §4553. 
[125] Id.
[126] Jospeh King, Jr., supra note 21 at 411. 
[127] Thomas Schroeder, supra note 122 at 902.   
[128] E.g., Austin v. Johns-Manville Sales, 508 F.Supp 313 (D.Me. 1981) (a wrongful death action brought by the estate of an employee who died from inhaling asbestos dust was barred because willful, wanton, or reckless misconduct does not overcome the exclusive remedy provision). 
[129] Thomas Schroeder, supra note 122 at 894. 
[130] Blakenship v. Cincinatti Milacron Chems., 433 N.E. 2d 572 (1982); Mandolidis v. Elkins Indus., 246 S.E. 2d 907, 914 (W. Va. 1978).

[131] E.g., Mandolidis v. Elkins Industries, 256 S.E. 2d 907 (W Va 1978).
[132] E.g., Dailey v. Eaton Corp., 741 N.E.2d 946 (3d Dist. Marion County 2000).
[133] E.g., Haddock v. Multivac, 703 So. 2d 969, (Ala. Civ. App. 1996); EAC USA v. Kawa, 805 So. 2d 1 (Fla. Dist. Ct. App. 2d Dist. 2001).
[134] E.g., Award Metals v. Superior Ct, 228 Cal App 3d 1128 (1991). 
[135] E.g., Virgil v. Walker, 572 P.2d 314 (Or. 1977); Sitzman v. Schumaker, 718 P.2d 657 (Mont. 1986). 
[136] E.g., Collins v. Dravo Contracting Co., 171 S.E. 757 (W.Va. 1933).  
[137] Bertagnolli v. Louderback, 67 P.3d 627, Wyo. (2003). 
[138] Id. at  632.  


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