January 1993 Term
BELINDA S. MYERS AND SANDRA F. TENNANT,
Plaintiffs below, Appellees,
MORGANTOWN HEALTH CARE CORP.,
A WEST VIRGINIA CORPORATION,
Defendant below, Appellant
Appeal from the Circuit Court of Monongalia County
The Honorable Larry V. Starcher, Judge
Civil Action No. 90-C-366
Submitted: May 11, 1993
Filed: July 15, 1993
Thomas C. Cady, Esq.
Morgantown, West Virginia
Attorney for Appellees
Francis L. Warder, Jr., Esq.
Clarksburg, West Virginia
Attorney for Appellant
JUSTICE NEELY delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. "'A statute is presumed to operate prospectively
unless the intent that it shall operate retroactively is clearly
expressed by its terms or is necessarily implied from the language
of the statute. Syllabus Point 3, Shanholtz v. Monogahela Power
Co., [165 W. Va. 305], 270 S.E.2d 178 (1980). Syllabus Point 2,
State ex rel. Manchin v. Lively, 170 W. Va. 655, 295 S.E.2d 912
(1982).' Syl. pt. 4, Arnold v. Turek, 185 W. Va. 400, 407 S.E.2d
2. "'An erroneous instruction is presumed to be
prejudicial and warrants a new trial unless it appears that the
complaining party was not prejudiced by such instruction. Point 2,
syllabus, Hollen v. Linger, 151 W. Va. 255, [151 S.E.2d 330
(1966)]. Syllabus Point 5, Yates v. Mancari, 153 W. Va. 350, 168
S.E.2d 746 (1969).' Syl. pt. 18, Rodgers v. Rodgers, 184 W. Va. 82,
339 S.E.2d 664 (1990)."
This case involves two people fired from their jobs at
Morgantown Health Care Corporation ("Morgantown"). Both Belinda S.
Myers and Sandra F. Tennant have alleged discrimination in
violation of W. Va. Code 23-5A-1 , commonly referred to as
the anti-discrimination statute of the workers' compensation laws.
The jury found in favor of Ms. Myers and Ms. Tennant. We reverse.
Ms. Myers worked as a nurse's aide for Morgantown. On 18
February 1988, Ms. Myers was injured on the job. She did not work
from 29 February 1988 until 10 October 1988 when she was discharged
from her employment under Morgantown's personnel policy. At the
time of her discharge, Ms. Myers was receiving temporary total
disability under Workers' Compensation.
Ms. Tennant worked as a laundry aide for Morgantown. On
27 February 1987 and on 23 March 1987, Ms. Tennant was injured on
the job and has not worked for Morgantown since 23 March 1987.
According to Morgantown's personnel records, Ms. Tennant quit her
employment on 17 March 1988; Ms. Tennant contends she was
discharged from her employment. At that time Ms. Tennant was
receiving temporary total disability under Workers' Compensation.
While employed by Morgantown, Ms. Myers and Ms. Tennant
were fully apprised of Morgantown's medical leave of absence
policy. The medical leave of absence handbook of Morgantown's
personnel policies provides in pertinent part:
A medical leave of absence is available to non-introductory employees and requires a written statement in advance from your physician stating the reason for the leave as well as the expected duration. Medical leaves will only be granted for a maximum of 30 days at a time. After 30 days a new physician's statement must be supplied. If a medical leave exceeds the length of time stated by your physician or exceeds a continuous three month period, you will be terminated. An additional medical leave for up to 3 months may be authorized by the Regional Manager or Vice-President of Operations.
Ms. Myers requested and was granted medical leaves of
absence from 1 March 1988 through 1 September 1988. On 10 October
1988, Ms. Myers' supervisor completed a personnel change form to
remove her from the payroll because her leave of absence exceeded
the six months of medical leave of absence permitted under
Morgantown's personnel policies. Pursuant to the medical leave of
absence policy, Ms. Myers was notified of her termination by letter
dated 10 October 1988.
Although Ms. Tennant had been absent from work for nearly
a year, she had neither requested nor been granted a medical leave
of absence. On 17 May 1988, Ms. Tennant informed Morgantown's
director of nursing that she would not return to work because her
injury rendered her incapable of doing the type of work required of
a laundry aide. On the same day, Ms. Tennant's supervisor
completed an "Employee Termination Form." Ms. Tennant received a
notice from Morgantown indicating that she had voluntarily quit her
Neither Ms. Myers nor Ms. Tennant offered evidence that
their discharge was causally related to their filing workers'
compensation claims or that appellant discriminatorily applied the
medical leave of absence policy against them. Despite this absence
of evidence to support their claim, both Ms. Myers and Ms. Tennant
contend that their discharges constitute per se violations of W.
Va. Code 23-5A-1 .
The lower court's instructions at issue are as follows:See footnote 1
The Court instructs the jury that in this case the legal theory plaintiffs rely upon for recovery against the defendant corporation is that each was the victim of a retaliatory discharge. Several State statutes are relevant for your consideration.
First, WV Code, §23-5A-3, provides that
discriminatory practices are prohibited. It
states that no employer shall discriminate in
any manner against present or former employees
because of such present or former employee's
receipt of or attempt to receive Workers'
Furthermore, WV Code, §23-5A-3, provides
that termination of an injured employee is
prohibited. The relevant law states that it
shall be a discriminatory practice within the
meaning of the previous section to terminate
an injured employee while the injured employee
is off work due to a compensable injury and is
receiving or is eligible to receive temporary
total disability benefits, unless the injured
employee has committed a separate discharge-able offense. A separate dischargeable offense shall mean misconduct by the injured
employee wholly unrelated to the injury or the
absence from work resulting from the injury.
A separate dischargeable offense shall not
include absence resulting from the injury or
from the inclusion or aggregation of absence
due to the injury with any other absence of
In 1978 the West Virginia legislature enacted W. Va. Code 23-5A-1, titled "Discriminatory Practices Prohibited," under which an employee's application for or receipt of Workers' Compensation benefits must bear a causal relation to the employee's termination. W. Va. Code 23-5A-1  provides in pertinent part:
No employer shall discriminate in any manner against any of his present or former employees because of such present or former employees' receipt of or attempt to receive benefits under this Chapter.
[Emphasis added]. In 1990, W. Va. Code 23-5A-3 recast the contours of W. Va. Code 23-5A-1 , abandoning the element of causality with regard to discharges for absence from work and defining a discriminatory practice as one that results in a discharge of any employee who receives or is eligible to receive Workers' Compensation. W. Va. Code 25-5A-3  provides:
It shall be a discriminatory practice within
the meaning of [W. Va. Code, 23-5A-1] to
terminate an injured employee while the
injured employee is off work due to a
compensable injury... and is receiving or is
eligible to receive temporary total disability
benefits. . .
Because the injuries and the discharges from employment of Ms. Myers and Ms. Tennant occurred two years before the enactment of W. Va. Code 23-5A-3 , that statute is not applicable to this case and should not have been a part of the judge's charge to the jury.
Statutes are presumed to have only prospective
application. Arnold v. Turek, 185 W. Va. 400, 406, 407 S.E.2d 706,
712 (1991). In derogation of that principle, the lower court's
inclusion of W. Va. Code 23-5A-3  in its charge to the jury
effectively gave retrospective application to W. Va. Code 23-5A-3
. Because the lower court's application of W. Va. Code 23-5A-3  was incorrect, it is reversible error.
The presumption of a statute's prospective operation is
defeated only if its terms clearly express the intent that it shall
operate retroactively or the language of the statute necessarily
implies it. Arnold v. Turek, 185 W. Va. 400, 406, 407 S.E.2d 706,
712 (1991). There is neither express nor implied language in W.
Va. Code 23-5A-1  from which to infer that the Legislature
intended retrospective application. Shanholtz v. Monongahela Power
Company, 165 W. Va. 305, 311, 270 S.E.2d 178, 183 (1980).
Likewise, W. Va. Code 23-5A-3  was not intended to operate
retroactively. Pannell v. Inco Alloys International, Inc., 422
S.E.2d 643, 646 (W. Va. 1992). In short, retrospective application
of either of these statutes would confound reasonable expectations.
The general rule of prospective application may be
relaxed only for statutes purely procedural or remedial in nature.
Shanholtz v. Monongahela Power Co., 165 W. Va. 305, 311-312, 270
S.E.2d 178, 183 (1980). Shanholtz involved an at-will employee
who, after having successfully filed a workers' compensation claim
for injuries suffered on the job, was fired by his employer. Mr.
Shanholtz sued his employer, alleging that his discharge was in
retaliation for his efforts to obtain worker's compensation
benefits. Significantly, Mr. Shanholtz charged that his employer
had breached a statutory duty owed to him under W. Va. Code 23-5A-1
. As in the instant case, after Mr Shanholtz was fired, the
legislature amended W. Va. Code 23-5A-1 .
According to the Shanholtz court, the newly-amended W.
Va. Code 23-5A-1  simply incorporated pre-existing case law
articulated in Harless v. First National Bank in Fairmont, 162 W.
Va. 116, 246 S.E.2d 270 (1978). In Harless, a discharged at-will
employee sued his employer, claiming that his discharge was in
retaliation for his efforts to require his employer to comply with
state and federal consumer credit and protection laws. Until
Harless, employment-at-will could be terminated at any time by
either party with or without cause. In Harless, we tempered this
rule, holding that an employer may be liable to the employee for
damages occasioned by the discharge where the employer's motivation
for the discharge is to contravene some substantial public policy.
In Shanholtz, we held that the general rule of
prospective application may be relaxed only for statutes purely
procedural or remedial in nature and thus refused to apply the
newly-amended W. Va. Code 23-5A-1  retroactively. Shanholtz
165 W. Va. at 311-312, 270 S.E.2d at 183. However, we also created
an exception to the general rule of prospective application in
light of Harless: where an amended statute incorporates common law
that had existed before the amendment to the statute, the statute
may be applied retroactively.
In this case, however, the newly-amended W. Va. Code 23-5A-1  is not codifying law that existed before the changes to
W. Va. Code 23-5A-1 ; instead W. Va. Code 23-5A-1 
creates new law. While the old W. Va. Code 23-5A-1  required
a causal relationship between the application for or receipt of
workers' compensation benefits and the discharge, the new W. Va.
Code 23-5A-3  creates a conclusive presumption that a person
who is discharged due to absence from work while receiving benefits
is the victim of discrimination. Because W. Va. Code 23-5A-3
 does not incorporate pre-existing case law, W. Va. Code 23-5A-3  and thus must not be applied retroactively.
The giving of an erroneous instruction is presumed to be
prejudicial and warrants a new trial unless it appears that the
complaining party was not prejudiced by the instruction. Rodgers
v. Rodgers, 184 W. Va. 82, 95, 339 S.E.2d 664, 667 (1990). We must
infer that the jury verdict in this case was influenced to some
extent by the erroneous instructions with regard to W. Va. Code 23-5A-3 . By negating the need to prove the causality element
essential to recovery under W. Va. Code 23-5A-1 , the court
diminished the burden of proof that was properly applicable.
Accordingly, the judgment of the Circuit Court of
Monongalia County is reversed and case is remanded for further
proceedings consistent with this opinion.
Reversed and Remanded.
Footnote: 1 Tr. Vol. 1, pp. 95-96.