At its core, workers compensation differs significantly from tort litigation. As Arthur Larson has written, tort litigation is an adversary contest to right a wrong between the contestants; workers compensation is a system, not a contest, to supply security to injured workers and distribute the cost to the consumers of the product. Within this workers compensation system, the worker exchanges, at least in theory, the potential recovery available under tort law with a relatively sure and quick payment of medical care and lost income. The employer, on the other hand, gives up most of its defenses, yet receives the assurance that the damages to be paid are limited to those called for by the system.

According to Professor Larson, most of the errors that can be observed in the development of compensation law, whether judicial or legislative, can be traced to the importation of tort ideas. One difficult area where tort law has tended to bleed over into compensation law is known as the dual persona doctrine, under which the employer becomes vulnerable to tort suits by an employee if the employer possesses a second persona so completely independent from and unrelated to its status as employer that the law recognizes that employer as a second person. One of the more common factual patterns is that of a hospital that treats its employee who sustains a work-related injury. The doctrine holds that it is not so much the employer that supplies the medical care; it is the hospital that has rendered the care. Under some circumstances, the hospital can be liable in tort to its employee.

In a recent unreported case from the Court of Appeals of Minnesota, Peterson v. Industrial Door Co., Inc., we see a rare products liability dual persona claim. There the appellate court affirmed a trial courts denial of summary judgment in favor of an employer on the basis that there was an issue of fact as to whether the employer had assumed the potential liabilities of a predecessor firm that had manufactured the machine that allegedly caused the employees injuries. Thomas A. Robinson analyzes the case, provides an historical context of the ill-fated doctrine of dual capacity and its successor, dual persona, describes the current status of the doctrine, discusses relevant issues related to the loss of the exclusive remedy defense, and observes that the dual persona doctrine is still alive and well.

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