Jeff Sinclair worked for Praxair Inc. collecting and testing soil, water, and air samples from potentially contaminated sites. During his employment, he underwent annual physical examinations. Several of his annual physical examinations after 1993 showed he had high blood urea nitrogen and creatinine levels and the examiner noted he should follow up with his own physician. Although Sinclair received copies of all of his annual examination results, he never reviewed them and, therefore, never complied with the recommendation to follow up with his personal physician. Nonetheless, his personal physician diagnosed him with renal disease in 1994 and he admittedly knew of the diagnosis at least since 1996. At the time, his physician attributed his renal disease to gout.
In 2009, after another annual examination, he was diagnosed with stage IV renal failure and became disabled from work. A worker’s compensation qualified medical examiner determined 85 percent of the cause of his renal disease was from work-related chemical exposures.
The Sinclairs subsequently sued Praxair for intentional conduct violating public policy, intentional infliction of emotional distress, and loss of consortium. Their complaint principally alleged Praxair intentionally concealed that workplace chemical exposures both caused and aggravated Sinclair’s renal disease. Praxair moved for summary judgment, arguing the Sinclairs could not establish their claims fell within the fraudulent concealment exception to the workers’ compensation exclusivity doctrine because, among other reasons, Sinclair knew he had renal disease. The superior court agreed and granted summary judgment to Praxair.
The Court of Appeal affirmed in the unpublished case of Sinclair v Praxair Inc.
An employee injured during the course of employment is generally limited to remedies available under the Workers’ Compensation Act. Labor Code section 3602(b)(2) provides a narrow exception to this exclusivity rule and allows a civil suit ‘[w]here the employee’s injury is aggravated by the employer’s fraudulent concealment of the existence of the injury and its connection with the employment, in which case the employer’s liability shall be limited to those damages proximately caused by the aggravation . . . .’ This provision was enacted in 1982 and codifies the common law fraudulent concealment exception that was enunciated by the Supreme Court in Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465.
Three conditions are necessary for the fraudulent concealment exception to apply: (1) the employer must have concealed the existence of the injury; (2) the employer must have concealed the connection between the injury and the employment; and (3) the injury must have been aggravated following the concealment. If any one of these conditions is lacking, the exception does not apply and the employer is entitled to judgment in its favor.
Here, the undisputed evidence shows Sinclair was diagnosed with renal disease in 1994 and he knew of the diagnosis as early as 1996. Consequently, the Sinclairs cannot establish the first element of the fraudulent concealment exception, that Praxair concealed the existence of his injury from him.