holding that intentional inflic tion of emotional distress claim premised entirely on claims of sexual harassment fell outside the scope of the Worker’s Compensation Act because “sexual harassment is not a risk involved in or incidental to employment”
How later courts described this case
- holding that intentional inflic tion of emotional distress claim premised entirely on claims of sexual harassment fell outside the scope of the Worker’s Compensation Act because “sexual harassment is not a risk involved in or incidental to employment”
- explaining that the court should consider “not only ... the nature of the activity at issue but also ... the relationship between the parties, and the particular environment in which the conduct took place” (internal quotation marks omitted)
- suggesting that the waiver rule does not apply when a verdict “is so ambiguous . . . that it . . . would leave the [c]ourt in the position of having no alternative but to guess at what the jury intended” and acknowledging that there may be cases where an inconsistency is “discernible only on reflection,” that “might well be exempt from the waiver rule”
- explaining that Rule 49, “particularly section (b), countenances a waiver of objections to inconsistencies in the verdict that are not pointed out before the jury is discharged”
Written by the judges who cited it.
The opinion
STEADMAN, Associate Judge,
concurring in part and dissenting in part:
I join Judge Ferren’s thorough analysis of the issues dealt with in Parts I, II, IV, and V of his opinion for the court. With respect to Part III, however, I would affirm the trial court’s determination that the doctrine of primary jurisdiction required that the plaintiff first seek relief under the workers’ compensation act.
As Judge Ferren points out in Part IIIA and as we have repeatedly iterated, under that doctrine “when there is a substantial question as to whether an employee’s injuries are covered by an employment compensation statute, the employee must first pursue a remedy under the statute, thereby permitting the agency to make the initial decision concerning coverage.” Grillo v. National Bank of Washington, 540 A.2d 743, 749 (D.C.1988) (internal punctuation and citations omitted). Furthermore, “a substantial question will exist unless the injuries were clearly not compensable under the statute.” Harrington v. Moss, 407 A.2d 658, 661 (D.C.1979) (internal punctuation and citations omitted).
Here, the plaintiff suffered a serious disabling injury as a result of the workplace actions of her superior, the chairman of the board of the Credit Union. Judge Ferren may well be correct in his painstaking analysis of our workers’ compensation act in which he concludes that such injury is not compen-sable under the act. But the very length of his analysis belies any assertion that the act “clearly” does not apply. 1
I cannot read our decision in King v. Kidd, 640 A.2d 656 (D.C.1993), as conclusively resolving the issue. That case involved the interplay between a sexual harassment claim and the personnel grievance portion of the act governing public employees, not the disability portion. As we pointed out in a prior case, “[t]hese two groups of CMPA provisions ... clearly have altogether different subject matters and purposes,” and “have altogether different legislative antecedents.” District of Columbia v. Thompson, 593 A.2d 621, 630 (D.C.), cert. denied, 502 U.S. 942 , 112 S.Ct. 380 , 116 L.Ed.2d 331 (1991) (“Thompson II”). Furthermore, King was an action between co-workers and did not address the issue of the liability of the employer, who was not a party to the appeal.
Nor do I think that the other considerations set forth by Judge Ferren settle the matter. The “irony” of providing employees who suffer serious workplace physical or mental disabilities with automatic coverage under workers compensation while permitting other emotional distress claims to go to court seems built into the distinction established by District of Columbia v. Thompson, 570 A.2d 277 (D.C.1990), aff'd in part and vacated in part, 593 A.2d 621 (1991) (“Thompson I”), and it is not immediately obvious why such disability caused by sexual harassment should be treated differently for purposes of workers’ compensation coverage. Indeed the very system of workers’ compensation carries with it both the possibility of limited recovery and the need of multiple fora for complete resolution of workplace injury. See, e.g., Meiggs v. Associated Builders, Inc., 545 A.2d 631 (D.C.1988) (injured *650 employees of subcontractors who had received compensation under the WCA can maintain suit against general contractors for negligence), cert. denied, 490 U.S. 1116 , 109 S.Ct. 3178 , 104 L.Ed.2d 1040 (1989).
As I already suggested, Judge Ferren in the end may be entirely correct in all the considerations he raises and in his resolution of each of the foregoing issues. Indeed, the administrative agency might agree with him with respect to some or all of them. I believe, however, that such judicial analysis should be informed by the administrative input which the doctrine of primary jurisdiction is intended to ensure. I would affirm the trial court’s ruling on that issue.
. "If a substantial portion of the complaint [seeking damages for sexual harassment in the workplace] involves physical injury, or the kind of mental or nervous injury or emotional distress compensable under the Act, most states will hold the action to that extent banned." 2A Arthur Larson, The Law of Workmen's Compensation § 68.34(d), at 13-231 to 13-235 (1993) (emphasis in original; footnotes omitted).