Deceased Workers’ Suit Unlikely to Overcome Exclusivity Provisions of the Act

The ongoing COVID-19 pandemic has caused over one hundred and fifty thousand deaths in the United States and brought with it widespread disruption to all aspects of American life.  Large-scale quarantines, business closures and moves to remote work have all been instituted in order halt the spread of the disease amongst workers.  Employers that do remain open have taken steps to protect employees and the public from exposure to COVID-19 through use of PPE and reconfiguration of workplaces.

COVID-19 may result in compensable injury under the Pennsylvania Workers’ Compensation Act.  Proof may be difficult to come by – an injured worker will need to be able to show the disease was contracted at work.  This may be difficult given the prevalence of the disease, its ease of spread and the possibility of asymptomatic carriers.  However, COVID-19 is clearly compensable as an occupational disease under the Act.  See, 77 P.S. § 27.1(n).

Recently, the family of a deceased employee of a meatpacking plant in Philadelphia filed suit against his employer, alleging the employer’s failure to take proper precautions or close the facility lead to the employee’s fatal COVID-19 infection.  See, Estate of Benjamin v. JBS, Case Id# 200500370 (Philadelphia Ct.Cm.Pleas.).  However, the suit is likely to be barred by the employer’s workers’ compensation immunity found in Section 303 of the Act.  77 P.S. § 481.

The case involves the death of Enock Benjamin, an employee at JBS USA Food Company’s Souderton plant.  Mr. Benjamin died of respiratory failure brought on by COVID-19 on April 3, 2020.  The suit alleges that JBS failed to provide proper precautions to prevent the spread of COVID-19, leading to the decedent’s contracting COVID-19 and his eventual death.  The plant at which Mr. Benjamin worked had several confirmed cases of COVID-10 and was shut down March 30, 2020, but eventually reopened.  The suit alleges several causes of action, including negligence, wrongful death, fraudulent misrepresentation and intentional misrepresentation.

Section 303 provides almost complete immunity for employers against suits stemming from workplace injuries.  In exchange, described as the “grand bargain” of workers’ compensation law, employees need only show a causal relationship between the disability and employment.  This lower standard obviates the need to show negligence or any other tort.

There are certain very narrow exceptions to this immunity.  Most relevant to the present suit is the intentional fraud exception found in Martin v. Lancaster Battery Co., Inc., 606 A.2d 444 (Pa. 1992).  The facts of Lancaster Battery involved an egregious course of willful deception by the employer.  The employer had a testing program to monitor lead exposure in its employees.  The employer first withheld, then fraudulently altered, the test results for the claimant.  This fraud kept the employee from seeking transfer away from lead-exposed parts of the job and from seeking potential medical treatment to alleviate the exposure, leading him to become much more seriously ill.  The Pennsylvania Supreme Court allowed the employee’s suit to proceed on the theory that damages at issue were not those of the work injury itself, but from the aggravation of the injury caused by the employer’s lies.  That took the dispute out of the Section 303 immunity.

Subsequent cases declined to expand the exception beyond the willful fraud found in Lancaster Battery.  In an especially relevant case, Kostryckyj v. Pentron Lab. Techs., LLC, 52 A.3d 333 (Pa.Super. 2012), the Superior Court held that the lack of adequate safety measures was insufficient to establish an exception to Section 303.  The claims in the Benjamin case amount largely to a failure to enact proper safety protocols and cite the employer’s failure to adhere to OSHA guidance as proof of wrongdoing.  This is likely not enough for the suit to clear the workers’ compensation bar – failure to enact a proper procedure, even in a clearly negligent manner, still falls under the Section 303 immunity.  Only an intentional fraud that leads to injury can clear the immunity bar.