(concurring) — I concur in the result reached by the majority but feel that further explication is warranted.
To be compensable, an injury must occur in the course of employment and result from either "physical injury" or from an "occupational disease". See Dennis v. Department of Labor & Indus., 44 Wn. App. 423, 722 P.2d 1317 (1986), aff'd, 109 Wn.2d 467, 745 P.2d 1295 (1987). If a condition does not result from either of these causes, the employee retains a right of action against the employer. See Depre v. Pacific Coast Forge Co., 145 Wash. 263, 259 P. 720 (1927) *80wherein our Supreme Court recognized this principle and permitted a right of action under a "safe place to work" statute where the worker was suffering from a disease that was excluded from coverage of the Industrial Insurance Act (IIA). More recently in McCarthy v. Department of Social & Health Servs., 46 Wn. App. 125, 730 P.2d 681 (1986), review granted, 108 Wn.2d 1001 (1987), this court reiterated this same principle. There we held that the plaintiff was entitled to show that her disease was not within the coverage of the IIA and therefore that she had a common law action for negligence against her employer. The rationale of the court is apposite.
In our judgment, if McCarthy could show that her disease was not an occupational disease, and thus not within the coverage provisions of the act, her private cause of action should not be barred under the exclusive remedy provisions of RCW 51.32.010. In coming to this conclusion, we emphasize that a fundamental distinction must be drawn between a disease which does not come within coverage provisions of the act, and a disease which is covered but for which under the facts of the particular case, no compensation is payable. In the former class are cases in which (1) the employment relation did not exist, (2) the claimant or his employer was within an excluded category, or (3) there was no disease arising out of the employment. 2 A. Larson, Workmen's Compensation § 65.10 (1986). For example, if it is shown that McCarthy's disease does not come within the definition of occupational disease because it is not a disease peculiar to, or inherent in, the industry and could not, therefore, arise "naturally" out of the conditions of the employment, then McCarthy's common law cause of action would not be barred. On the other hand, if it was shown in a common law action that McCarthy's disease meets the definition of an "occupational disease," but that McCarthy simply failed to meet her burden of proof before the Department and the Board, then her cause of action would be barred by the exclusive remedy provisions of RCW 51.04.010.
McCarthy, at 131.
*81In Washington, just what kind of injury is within the coverage formula so as to trigger the exclusivity provision of the IIA is subject to debate. In several recent cases, the Washington Supreme Court has allowed civil actions by the employee against the employer on the basis that the alleged injuries were not within the coverage of the IIA. In Cagle v. Burns & Roe, Inc., 106 Wn.2d 911, 726 P.2d 434 (1986), the court held that the IIA does not bar an action for emotional distress occurring as a result of the tort of wrongful termination of employment. The court reasoned that the injury resulted from the termination and not while the plaintiff was "acting in the course of employment." In Reese v. Sears, Roebuck & Co., 107 Wn.2d 563, 731 P.2d 497 (1987), the court confronted the issue of whether the IIA barred an action for employment discrimination resulting from the employer's refusal to make reasonable accommodations on rehire for the disabilities suffered by an employee who had received compensation under the IIA. The court held that a civil cause of action for employment discrimination is not barred because the injury caused by such discrimination is not a physical injury occurring in the course of employment. The court analyzed the nature of the discrimination claim and of the workplace injury and determined that Reese suffered two injuries that were of a different nature, that arose at different times in the employee's work history, and that required different causal factors. The court specifically narrowed the holding of Seattle-First Nat'l Bank v. Shoreline Concrete Co., 91 Wn.2d 230, 588 P.2d 1308 (1978) to workplace injuries. Similar approaches have been used by courts in other jurisdictions. See Coleman v. American Universal Ins. Co., 86 Wis. 2d 615, 273 N.W.2d 220 (1979); Travelers Ins. Co. v. Savio, 706 P.2d 1258 (Colo. 1985); cf. Carpentino v. Transport Ins. Co., 609 F. Supp. 556 (D. Conn. 1985); Gibson v. National Ben Franklin Ins. Co., 387 A.2d 220 (Me. 1978).
The weakness of the Reese approach in the present context lies in the fact that it does not distinguish between claims that are interwoven with the compensation award *82and thus should be barred, and claims involving a wrong that is only tenuously related to the workplace. Compare Carpentino with Waldon v. Hartford Ins. Group, 435 So. 2d 1271 (Ala. 1983). A claim which arises from a bona fide dispute over compensation is inextricably interwoven with the compensation scheme. Therefore, the penalty provisions for unreasonable delay in payments are exclusive. See Dickson v. Mountain States Mut. Cas. Co., 98 N.M. 479, 650 P.2d 1 (1982); Robertson v. Travelers Ins. Co., 95 Ill. 2d 441, 448 N.E.2d 866 (1983).3 As Professor Larson states:
It seems clear that a compensation claimant cannot transform a simple delay in payments into an actionable tort by merely invoking the magic words "fraudulent, deceitful and intentional" or "intentional infliction of emotional distress" or "outrageous" conduct in his complaint. The temptation to shatter the exclusiveness principle by reaching for the tort weapon whenever there is a delay in payments or a termination of treatment is all too obvious, and awareness of this possibility has undoubtedly been one reason for the reluctance of courts to recognize this tort except in cases of egregious cruelty or venality.
One final factor may be noted that has figured in many of these cases: the presence in the statute of an administrative penalty for the very conduct on which the tort suit is based. A majority of the courts have taken the view that this evidences a legislative intent that the remedy for delay in payments, even vexatious delay, shall remain within the system in the form of some kind of penalty.
(Footnotes omitted.) 2A A. Larson, Workmen's Compensation § 68.34(c), at 13-145 (1987).
Where the claim alleges facts of misconduct beyond a bona fide dispute over compensation, and the wrongdoing is only tenuously related to the industrial accident, the employer has been held not to be immune. DeMarco v. Federal Ins. Co., 99 A.D.2d 114, 472 N.Y.S.2d 464 (1984) *83(damages claimed are outside awardable compensation benefits and were never intended to be the exclusive province of the compensation board); Stafford v. Westchester Fire Ins. Co., 526 P.2d 37 (Alaska 1974); Unruh v. Truck Ins. Exch., 7 Cal. 3d 616, 498 P.2d 1063, 102 Cal. Rptr. 815 (1972); but see 2A A. Larson, Workmen's Compensation § 68.34(b) (1987), criticizing the analysis in Unruh and suggesting that the better approach is one seeking to determine whether damages are sought for events entirely distinct from the initial industrial injury, and/or whether the injury is the kind covered by the compensation law.
The gravamen of the complaint in the instant case is delay in payment and/or refusal to pay a pension, actions which were taken as a result of a bona fide dispute over the amount of compensation. In other words, whatever harm Deeter suffered was occasioned by Safeway's adverse position on compensation. The fácts do not support finding a breach and duty that can be considered to be only tenuously related to the industrial injury such as the duty to refrain from outrageous conduct or to refrain from intentionally harming Deeter. If Safeway acted unreasonably, Deeter's remedy is under the IIA, not by civil tort action.4
The question of the immunity of Scott Wetzel Services, Inc., is more difficult. Former RCW 51.24.030 allows a civil tort action against a "third person not in the same employ". The IIA definition of employer does not include a claims adjuster and there is no specific legislative directive on this issue. While it is tempting to construe the IIA narrowly and allow an action against Scott Wetzel, this court cannot ignore the purpose and policy arguments underlying the IIA. See Shoreline, at 242; Sacred Heart Med. Ctr. v. Carrado, 92 Wn.2d 631, 635, 600 P.2d 1015 (1979). The relationship of the employee, the employer, and the claims *84adjuster for the employer with respect to a claim for delay in payment which involves a dispute over the right to, or amount of, compensation flows from the rights and obligations created by the IIA, not from any independent source. To permit a right of action against the claims adjuster merely because it is a "third party" would vitiate the policy of IIA.5
The opinion of the majority follows Unruh and recognizes a cause of action for more than mere delay in payment but less than an intentional tort, i.e., actions for outrage. I concur but agree with Professor Larson's criticism of Unruh and feel that the rationale for that result should focus on the alleged misconduct and its relationship to the industrial accident. Even under that approach, however, these facts do not show an injury resulting from events entirely distinct from the compensation act. The alleged misconduct of defendants occurred in the claims administration process and is so interwoven with the compensation award and the industrial injury that the claimant must look to the IIA exclusively for his remedy.
Review denied by Supreme Court April 5, 1988.
RCW 51.48.015 (misdemeanor violation for employer's failure to secure payment of compensation); RCW 51.48.017 (penalty accruing to claimant for self-insurer's delay or refusal to pay compensation).
Of course, because RCW 51.24.020 allows a civil action for intentional injury, an employer is not immune for torts committed with the specific intent to injure the employee. Foster v. Allsop Automatic, Inc., 86 Wn.2d 579, 547 P.2d 856 (1976); Nielson v. Wolfkill Corp., 47 Wn. App. 352, 734 P.2d 961 (1987).
However, compare Santiago v. Employee Benefits Servs., 168 Cal. App. 3d 898, 214 Cal. Rptr. 679 (1985) (dismissing a civil action against a claims adjuster on the basis that the compensation board had exclusive jurisdiction even though claims adjuster was not specifically immunized in the compensation act) with Dill v. Claims Admin. Servs., 178 Cal. App. 3d 1184, 224 Cal. Rptr. 273 (1986) (holding that the claims adjuster was a person other than the employer and was subject to civil suit).