Appeals Court Rules Ky. Exclusivity Provision Precludes W.C Claims

The United States Court of Appeals for the Sixth Circuit in Kentucky has ruled that the exclusivity provision of the Kentucky Workers’ Compensation Act precludes employees’ claims for exposure to radioactive substances.

According to WorkCompNew, in Rainer v. Union Carbide Corp., No. 03-6032, 03/08/2005, four workers, who were exposed to radioactive substances while they were employed at Paducah Gas Diffusion Plant (PGDP), and members of their families sued General Electric (the uranium fuel supplier), Union Carbide, Martin Marietta, and Lockheed Martin Utilities Services on various state and federal grounds. Union Carbide, Martin Marietta, and Lockheed Martin Utilities Services (hereinafter the Defendant-Operators) leased PDGP facilities to conduct business. Although these workers were exposed to hazardous substances and claimed subcellular damage, none of them displayed any symptoms of clinical disease. The plaintiffs were divided into four classes, Class I being comprised of PGDP employees asserting claims against the Defendant-Operators.

The district court dismissed all of the plaintiffs’ claims with prejudice. The court dismissed the plaintiffs’ Bivens claims, which were asserted because the plaintiffs alleged constitutional violations. The court later determined that the Price-Anderson Act preempted the state law claims and determined that, under the Price-Anderson Act, the alleged subcellular damage was insufficient to be considered “bodily injury.” The court also determined that the Class I plaintiffs claims against their employers were barred by the Kentucky Workers’ Compensation Act.

The Court of Appeals affirmed. The Bivens claims were properly dismissed because Bivens remedies are not available where there are other “adequate remedial mechanisms for constitutional violations.” Here, the Price-Anderson Act (which “provides for compensation of injured parties in the event of a nuclear accident and sets a maximum liability amount per accident”) provides an adequate remedy for the constitutional violations alleged by the plaintiffs. Regarding the claims governed by the Price-Anderson Act, the court found that the alleged subcellular damages fell short of meeting the “bodily injury” standard because no present physical illness existed, making any damages purely theoretical.

The court rejected the Class I plaintiffs’ argument that their claims against their employers were not barred by the exclusivity provision of the Kentucky Workers’ Compensation Act because they were injured “through the deliberate intention of [the] employer to produce such injury or death.” The Class I plaintiffs asserted that “deliberate intention” included conduct that the employer undertook with the knowledge that such conduct would produce a certain result, or conduct that was substantially certain to produce such a result. However, the court held that “deliberate intention” is analyzed in a narrower manner and encompasses conduct undertaken with a specific intent to injure. Therefore, the court held that because the Defendant-Operators did not act with specific intent to injure the employees, the claims were barred by the exclusivity provision:

“In sum, Kentucky caselaw is dispositive of the claims brought by the Class I plaintiffs. Cases like Fryman have established that the ‘deliberate intention’ exception to the Kentucky Workers’ Compensation Act is viable only when the employer has ‘determined to injure an employee and used some means appropriate to that end, and there must be a specific intent.'”