Maynard, Justice, dissenting:
I dissent because I believe
the WCAB's finding that no contract of employment existed between the claimant
and B&R on July 31, 1998 is not plainly wrong. The majority
opinion states that the critical question which must be resolved is whether
a claimant was in the service of the employer for the purpose of carrying
on the employer's industry, business, service or work while serving under
a contract for remuneration. The opinion then disregards this analysis
and finds that a contract of employment existed between the claimant and B&R
on July 31, 1998 because he agreed to take a safety class and undergo pre-employment
The record clearly shows
that B&R did not hire the claimant prior to completing the testing and
neither was B&R paying him at that time. In fact, whether the claimant
would be hired or not was contingent on the results of the testing. Moreover,
not only was the claimant not on the company's payroll, but the claimant himself
paid $50 to participate in the pre-employment exercises. I have not met too
many people, if any, who would go to work pursuant to an employment
contract and not only work for free, but actually expend money from
their own pockets and then consider themselves to be employees. If I am spending my money to search for a job, I do not believe
that I am an employee of any company. Nonetheless, the majority somehow finds
that B&R benefitted from the testing, so the claimant was an employee
. . . for the purposes of worker's compensation. If a person is not
an employee for any other reason, I do not believe that person is an employee
for purposes of worker's compensation.
Several courts in other
jurisdictions have addressed the precise issue presented to this Court and
have denied workers' compensation benefits. In Rastaetter v. Charles S.
Wilson Memorial Hosp., 436 N.Y.S.2d 47, 47 (N.Y. App. Div. 1981), the
court addressed the question of whether an individual who is required
to undergo a pre- employment physical examination should be considered an
employee, within the meaning of the Workers' Compensation Law, with respect
to injuries arising out of the pre- employment physical examination.
The court in Rastaetter held that such an individual was not an employee
for workers' compensation purposes. Id. See also Cluff v.
Nana- Marriott, 892 P.2d 164, 171 (Alaska 1995) (The circumstances
surrounding the stress test are not sufficient to give rise to an implied
employment contract. Even if [claimant] consented to act under [defendant's]
control for the period of the test, neither party treated the test as an employment
relationship [for workers' compensation purposes.]); CUST-O- FAB
v. Bohon, 876 P.2d 736, 738 (Okl.App. 1994) ([W]e decline to extend
[workers' compensation] coverage to claimants who sustain injury during the
course of pre-employment skills testing[.]); Younger v. City and County of Denver,
810 P.2d 647, 653 (Colo. 1991) ([W]e find that there was no mutual agreement
between the [defendant] and [claimant] sufficient to create an employer-employee
relationship that would justify an award of workers' compensation benefits.);
BBC Brown Boveri v. Lusk, 816 P.2d 1183, 1185 (Or.App. 1991) ([C]laimant's
only contact with [defendant] was ... when he performed a welding test for
a position as a boiler maker and participated in an orientation 'school.'
Claimant failed the test and was not hired at that time.... It follows that
he was not a 'worker' and that [defendant] could not have been an employer
[for workers' compensation purposes.]); Esters v. General Motors
Corp., 246 Cal.Rptr. 566, 570 (Cal.App. 2 Dist. 1988) (We conclude
that appellant did not enter into an employment relationship by submitting
to a pre-employment physical.).
The majority opinion purports
to cite to three cases from other jurisdictions which hold that injuries
sustained during requisite pre-employment tests [are] compensable[.]
None of the cases cited stand for such a proposition. In the first case cited
by the majority opinion, Lotspeich v. Chance Vought Aircraft, 369 S.W.2d
705 (Tex. Civ. App. 1963), the plaintiff sued the employer for failing to
inform her that the pre- employment examination revealed that she had tuberculosis.
The trial court granted summary judgment to the employer on the basis that
any duty owed by the employer to inform the plaintiff of the disease was a
matter covered by workers' compensation. On appeal the plaintiff argued that workers' compensation law did
not apply and that she should be allowed to sue the employer. The appellate
court disagreed on the grounds that the plaintiff was hired on the day she
took the physical examination, and that the test results from the physical
examination did not come back until several weeks later, while she was an
In the instant proceeding,
the majority opinion took nondispositive dicta from Lotspeich to make
it appear as though the plaintiff in that case had sustained a pre- employment
injury and was seeking workers' compensation benefits. The truth is, the plaintiff
did not want workers' compensation benefits--she wanted to sue the employer.
It was the employer who argued successfully that workers' compensation law
applied because they hired the plaintiff on the day of the examination and
they learned of her disease several weeks after she was employed.
The other two cases cited
by the majority opinion are equally contrary to the majority opinion. In both
cases cited by the majority opinion, Smith v. Venezian Lamp Co., 168
N.Y.S.2d 764 (N.Y. App. Div. 1957) and Laeng v. Workmen's Comp. Appeals
Bd., 494 P.2d 1 (Cal. 1972), the claimants were trying out
for employment. Smith and Laeng both held that tryout
work is sufficient to permit workers' compensation laws to be invoked because the claimants were engaged in activities that were the
same as that which they would do if employed by the employers.
I am fundamentally dismayed
by the majority opinion's distorted reliance on Smith and Laeng
for two reasons. First, courts around the country have recognized that tryout
work is not the same as engaging in a pre-employment physical examination.
The reason courts around the country make such a distinction and apply different
rules is because the overwhelming majority of employers in the country require
routine medical proof of the basic healthiness of potential employees. Consequently,
it would pose an undue economic burden to require employers to pay additional
workers' compensation premiums to cover pre-employment physical examination
injuries. On the other hand, the overwhelming majority of employers in the
country do not require tryout work by potential employees. The
distinct line of cases that follow Smith and Laeng seek to protect
employers from civil lawsuits when potential employees suffer
injury during tryout work by invoking workers compensation laws
that preclude such civil lawsuits.
The second reason for my
dismay with the majority opinion's reliance on Smith and Laeng,
is that the majority opinion has disingenuously sought to apply those cases
to the instant set of facts, when the state appellate courts which decided
Smith and Laeng have refused to extend those cases to facts
similar to the instant case. As to the Smith decision, New York appellate courts have refused to apply that
decision to injuries resulting from pre-employment physical examinations.
See Rastaetter, supra. As to the Laeng case, California appellate
courts have refused to apply that decision to pre- employment physical examination
injuries. See Esters, supra.
Finally, I believe the claimant
did not prove by credible evidence that he suffered an injury on July 31,
1998. The majority opinion declares that the claimant's testimony established
that he injured his back during the agility testing. Establish
means to put beyond doubt: prove. Webster's Collegiate Dictionary
397 (10th ed. 1993). The evidence conclusively shows that the claimant did
not report an injury to the human resources personnel assistant at the time
he allegedly hurt his back; neither did he report an injury to anybody else
at the company; neither did he report an injury to Dr. Viradia when he was
examined on the very day he was allegedly injured; and Dr. Viradia found no
injury during the examination.
Almost a month passed before
evidence surfaced that the claimant allegedly suffered a back injury during
the pre-employment testing. The claimant filed a claim for benefits on August
25, 1998. Dr. Wardlow concluded the claimant injured his back as a result
of pre-employment strength testing. How would the doctor know? The claimant
told him. Similarly, Dr. Landis concluded the claimant injured his back with
an onset date of July 31, 1998. How would the doctor know? The claimant told him. I agree
with the WCAB that this evidence is totally subjective, biased, [and]
self-serving[.] This proves only that the claimant told
the doctors he suffered a back injury on July 31, 1998 and that he exhibited
symptoms on the day he was examined. On August 24, 1998, Dr. Viradia again
examined the claimant and found tenderness and muscle spasm in the claimant's
lower back. A reasonable person would find this proves the claimant
suffered a back injury at some time between July 31, 1998 and August 24, 1998.
The majority admits this
is the first time the West Virginia's Worker's Compensation system has faced
this problem. Potential employers had better be alerted that it is almost
assuredly not the last time. I believe this injury is a health insurance problem,
not a worker's compensation problem. Worker's compensation was not intended
to be an insurance program or a retirement program. For the foregoing reasons,
I would affirm the WCAB's decision.
Accordingly, I respectfully
dissent. I am authorized to state that Justice Davis joins me in this dissent.