Coppelman: Punting on 'Exclusive Remedy'

Workers’ Comp Consultant Jon Coppelman takes to WorkersCompensation.com’s Experts View to reflect on a 2013 case that carried on through 2017, and is still relevant today.

Lawrence Tynes used to kick footballs in the NFL. After stints with the New York Giants and Kansas City Chiefs, he signed in 2013 with the Tampa Bay Buccaneers. Unfortunately, he never played for Tampa Bay: During training camp he contracted a methicillin-resistant staphylococcus aureus (MRSA) infection on his kicking toe.

He received immediate treatment under the team’s workers’ comp policy, but the infection ended his career. Having lost his ability to earn a living as a football player, he sued the team for gross negligence, seeking $20 million.

But workers’ comp is the “exclusive remedy,” right? You can’t sue your employer…

It soon became clear that the team had failed to protect its players. Prior to Tynes’s infection, five other players who used the team’s health facilities had contracted the MRSA virus.

Instead of shutting the facility down and cleaning up any possible sources of infection, they allowed Tynes to receive treatments, perhaps as if nothing was wrong. His life-threatening problem was correctly diagnosed only when he sought an outside opinion.

Not-so-exclusive Remedy?

As you would expect, the team countered the Tynes lawsuit by asserting that an employee cannot sue his employer: Workers’ comp is the exclusive remedy for work-related injuries.

In 2016, Hillsborough County Circuit Court Judge Mark Wolfe denied the team’s motion to dismiss, stating that under general common law duties, professionals and owners of commercial premises are obligated to ensure that the facilities are free of known risks. In other words, the duty to maintain a clean environment transcended the employer/employee relationship.

Given the judge’s ruling, it is not surprising to learn that the team agreed to a settlement. While no specifics were released, one of the other MRSA cases with a Tampa Bay player settled for $3 million, so we can assume that Tynes received at least that amount.

Exclusive remedy is still a fundamental principle of workers’ comp. But when an employer offers services outside the normal scope of work, they may incur what is essentially a third party liability. Once the team’s negligence was exposed in all its callous detail, they did what teams often do in football: They punted.

 About the Author:

Since 1990 Jon Coppelman has trained thousands of business owners from Main Street to Fortune 500 on the fundamentals of workers’ compensation cost control. From 2006 to 2012 he was a principal writer for the Workers’ Comp Insider, LynchRyan’s first-in-the-nation blog dedicated to risk management issues. He currently divides his time between his consulting businesses and his role as Senior Workers’ Compensation Consultant for the Renaissance Alliance, an aggregator based in Wellesley, MA serving more than 90 local agencies across New England.

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