John Everett Roush
Legal Services, West Virginia School
Service Personnel Association
Charleston, West Virginia
Attorney for the Appellant
James W. Gabehart
Campbell, Woods, Bagley, Emerson,
McNeer and Herndon
Charleston, West Virginia
Attorney for the Appellee
CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.
1. "It is a contravention of public policy and actionable to discharge an employee
because he has filed a workmen's compensation claim against his employer." Syl. Pt. 2,
Shanholtz v. Monongahela Power Co., 165 W. Va. 305, 270 S.E.2d 178 (1980).
2."In order to make a prima facie case of discrimination under W. Va. Code, 23-5A-1,
the employee must prove that: (1) an on-the-job injury was sustained; (2) proceedings were
instituted under the Workers' Compensation Act, W. Va. Code, 23-1-1, et seq.; and (3) the
filing of a workers' compensation claim was a significant factor in the employer's decision
to discharge or otherwise discriminate against the employee." Syl. Pt. 1, Powell v. Wyoming
Cablevision, Inc., 184 W. Va. 700, 403 S.E.2d 717 (1991).
3. "Statutes which relate to the same subject matter should be read and applied
together so that the Legislature's intention can be gathered from the whole of the
enactments." Syl. Pt. 3, Smith v. State Workmen's Compensation Comm'r, 159 W. Va. 108,
219 S.E.2d 361 (1975).
4. "Under the Workmen's Compensation Act, W. Va. Code, 23-1-1, et seq.,
temporary total disability benefits should be terminated where the Commissioner finds that
a claimant either has reached his maximum degree of medical improvement from the
industrial accident, or has been medically certified to return to work." Syl. Pt. 1, Mitchell
v. State Workmen's Compensation Comm'r, 163 W. Va. 107, 256 S.E.2d 1 (1979).
5. The one-year limitation imposed by West Virginia Code 5-16-25 (1994) on an
employer to pay its proportionate share of the health insurance premiums for those
employees on approved medical leaves of absence is not controlling with respect to whether
an employer can terminate its payment of an employee's health insurance premiums without
being in violation of West Virginia Code 23-5A-2 (1994).
6. A workers' compensation claimant who is protesting the closure of her claim for
temporary total disability benefits and/or the denial of additional temporary total disability
benefits does not come within the meaning of the terms "is claiming" found in West Virginia
Code 23-5A-2 (1994). Accordingly, an employer who ceases to pay the health insurance
premiums for a claimant who is protesting or appealing the closure or denial of temporary
total disability benefits does not commit an act of discrimination within the legislative intent
of West Virginia Code 23-5A-2.
Workman, Chief Justice:
Appellant Evelyn Rollins appeals from the November 7, 1995, order of the Circuit
Court of Mason County denying her petition for a writ of mandamus through which she
sought to compel the Appellee Mason County Board of Education ("Board") to reinstate her
health insurance benefits. The specific issue presented is whether West Virginia Code 23-5A-2 (1994) prohibits an employer from terminating an employee's health insurance benefits
when that employee is no longer receiving temporary total disability ("TTD") benefits, but
is protesting the Workers' Compensation Commissioner's ("Commissioner") denial of her
request to reopen a previously-ruled upon claim. After examining the statutory language in
conjunction with the workers' compensation statutes, as a whole, we determine that the
circuit court correctly denied the writ of mandamus sought by Appellant and accordingly,
affirm the lower's court's decision.
Appellant is employed as a bus driver for the Board. Upon exiting a school bus on
March 4, 1993, she slipped on bus steps that were wet due to rainy weather conditions and
injured her lower back as a result. She filed a workers' compensation claim the next day in
connection with her injury. Her claim was ruled compensable by the Commissioner and she
received TTD benefits from March 8, 1993, through February 17, 1994, for her back injury.
Dr. Loimil examined Appellant at the request of the Commissioner on January 8,
1994, and determined that she had reached her maximum degree of medical improvement
with regard to the back injury. Dr. Loimil concluded that Appellant was no longer disabled
and recommended that she receive an award of 6 % permanent partial disability ("PPD").
The Commissioner then informed Appellant by notice dated February 17, 1994, that her
claim would be closed for further TTD benefits, based on Dr. Loimil's report, unless she
submitted evidence in justification of additional benefits within thirty days. Appellant
submitted a report of Dr. Szendi-Harvath along with a CT scan in an attempt to obtain
continued TTD benefits. After determining that Dr. Szendi-Horvath's report did not present
any new evidence that had not previously been considered, the Commissioner closed
Appellant's claim for TTD benefits, by order dated March 30, 1994. Appellant protested the
closing of her claim for TTD benefits within the statutorily-required thirty-day period.(1)
By order dated April 5, 1994, Appellant was awarded 6% PPD, which she timely
protested. Appellant sought to reopen her claim for additional TTD and/or permanent total
disability benefits ("PTD") and the Commissioner denied her request, by order dated May
19, 1994. She timely protested the denial. When the Commissioner sought to submit
Appellant's protests for decision, she sought additional time to submit further medical
evidence. Appellant submitted the report of Dr. Ignatiadis on August 5, 1994, wherein he
indicated that Appellant should have a lumbar MRI. The Commissioner denied Appellant's
request for the MRI by letter dated September 21, 1994, and Appellant protested the denial.(2)
On October 12, 1994, the Board notified Appellant that it had paid her health
insurance premiums for one year consistent with its obligations to an employee on an
approved medical leave of absence, but that it would cease paying her health premiums as
of November 11, 1994. See W. Va. Code 5-16-24 (1994).(3) She was informed by the
Board that she would be responsible for paying her premiums if she desired to keep the
medical coverage provided through PEIA. As of November 1, 1994, the Board ceased
paying Appellant's health insurance premiums.
Seeking to compel the Board to reinstate her medical insurance, Appellant filed a
petition requesting a writ of mandamus with the circuit court on April 11, 1995. By order
dated November 7, 1995, the circuit court denied Appellant's petition for a writ of
mandamus. That denial is the subject of this appeal.
At the center of this appeal is the statutory language of West Virginia Code 23-5A-2, which provides:
Any employer who has provided any type of medical insurance for an employee or his dependents by paying premiums, in whole or in part, on an individual or group policy shall not cancel, decrease his participation on behalf of the employee or his dependents, or cause coverage provided to be decreased during the entire period for which that employee during the continuance of the employer-employee relationship is claiming or is receiving benefits under this chapter for a temporary disability. If the medical insurance policy requires a contribution by the employee, that employee must continue to make the contribution required, to the extent the insurance contract does not provide for a waiver of the premium.
Nothing in this section shall prevent an employer from changing insurance carriers or cancelling or reducing medical coverage if the temporarily disabled employee and his dependents are treated with respect to insurance in the same manner as other similarly classified employees and their dependents who are also covered by the medical insurance policy.
This section provides a private remedy for the employee
which shall be enforceable in an action by the employee in a
circuit court having jurisdiction over the employer.
W. Va. Code 23-5A-2 (emphasis supplied).
Appellant argues that she qualifies as an employee who "is claiming" workers'
compensation benefits by virtue of her protesting the Commissioner's decisions to close her
claim for TTD benefits and not to reopen her claim for additional TTD benefits. Id. The
parties concur that Appellant was not receiving TTD benefits at the time the Board
determined that it was no longer going to extend health insurance coverage to her. Thus,
only if Appellant can qualify as "claiming" TTD benefits does she come within the purview
of West Virginia Code 23-5A-2.
Appellant concedes that the term "claiming" is not defined within Chapter 23 of the
West Virginia Code. She suggests that she is "claiming" benefits within the meaning of
West Virginia Code 23-5A-2 because, throughout the workers' compensation statutes, an
individual who files a claim is referred to as a "claimant." Appellant maintains, in
conclusory fashion, that her attempts to reopen her TTD claim and her protest of the
Commissioner's denial of the requested reopening necessarily bring her within the statutory
meaning of "claiming" benefits intended by West Virginia Code 23-5A-2. Choosing to
ignore the statutory issue presented, the Board argues instead that Appellant was no longer
subject to the protections of West Virginia Code 23-5A-2 once she filed a claim seeking
As with all issues of statutory interpretation, this Court's duty is to "ascertain and give
effect to the intent of the Legislature." Syl. Pt. 1, in part, Smith v. State Workmen's
Compensation Comm'r, 159 W. Va. 108, 219 S.E.2d 361 (1975). Article 5A of Chapter 23
was enacted in 1978 for the express purpose of prohibiting employers from certain
discriminatory practices with the core objective of protecting employees from retaliatory
conduct in response to the filing of workers' compensation claims. Applying this statutory
principle, we ruled in syllabus point two of Shanholtz v. Monongahela Power Co., 165 W.
Va. 305, 270 S.E.2d 178 (1980), that "[i]t is a contravention of public policy and actionable
to discharge an employee because he has filed a workmen's compensation claim against his
Article 5A begins with a broadly-stated proscription against discriminatory conduct undertaken by employers in response to an employee's "receipt of or attempt to receive [workers' compensation] benefits." W. Va. Code 23-5A-1. The Legislature later amended article 5A to insert specific types of proscribed discriminatory conduct. Section two, enacted in 1980, sets forth under what circumstances employers are constrained from terminating the health insurance benefits of their employees, and section three, enacted in 1990, provides that employers generally cannot terminate employees who are determined to have a compensable injury.(5) See W. Va. Code 23-5A-2, -3.
In Powell v. Wyoming Cablevision, Inc., 184 W. Va. 700, 403 S.E.2d 717 (1991), this Court set forth in syllabus point one the required elements for establishing a violation of the generalized prohibition against discrimination found in section one of chapter 23:
In order to make a prima facie case of discrimination
under W. Va. Code, 23-5A-1, the employee must prove that: (1)
an on-the-job injury was sustained; (2) proceedings were
instituted under the Workers' Compensation Act, W. Va. Code,
23-1-1, et seq.; and (3) the filing of a workers' compensation
claim was a significant factor in the employer's decision to
discharge or otherwise discriminate against the employee.
184 W. Va. at 701, 403 S.E.2d at 718 (emphasis supplied). While Powell involved the issue
of whether sufficient evidence had been introduced to support the jury's finding of retaliatory
discharge, various factors identified in that case are nonetheless applicable in cases, such as
this one, in which the alleged discrimination does not rise to the level of discharge. Id. One
such relevant factor is the proximity of the discharge to the filing of the workers'
compensation claim. Id. at 704-06, 403 S.E.2d at 721-23. Whether "the employer has a
neutral absenteeism policy that permits discharge of an employee who is absent for a specific
period of time" is yet another factor to be examined. 184 W. Va. at 705, 403 S.E.2d at 722.
Where such a neutral policy exists, "courts have generally held that termination of
employment under such a policy does not violate a compensation antidiscrimination statute."
Neither Powell, which was decided only under West Virginia Code 23-5A-1, nor
West Virginia Code 23-5A-3, which specifically addresses the termination of injured
employees, completely prohibit employers from taking action with regard to injured workers,
including discharge, in certain situations. As this Court recognized in Powell, "[i]f an
employee is disabled on the job and is no longer qualified to perform the duties of his or her
job, an employer may terminate that employee when it becomes obvious that the period of
disability is not determinable." 184 W. Va. at 706, 403 S.E.2d at 723 (quoting Kern v. South
Baltimore Gen. Hosp., 504 A.2d 1154, 1159 (1986)). Subsection three only prohibits the
termination of 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." W. Va. Code 23-5A-3(a).
Against this overview of Chapter 23 and prohibited acts of discrimination, we turn to
the statutory issue presented by this case. Specifically, did the Legislature through the use
of the term "claiming" in West Virginia Code 23-5A-2 intend to entitle individuals, such
as Appellant, to employer-paid health insurance coverage throughout the duration of the
protest/appeal stage of the claims process. Because we do not find the statute at issue to be
clear on its face, we are required to apply well-established canons of statutory construction.
It is axiomatic that "[s]tatutes which relate to the same subject matter should be read and
applied together so that the Legislature's intention can be gathered from the whole of the
enactments." Syl. Pt. 3, Smith, 159 W. Va. at 109, 219 S.E.2d at 362. This interpretational
rule which requires us to read statutes that deal with the same subject matter in pari materia
permits us to look to other workers' compensation statutes. The specific statutes that warrant
consultation are those that deal with the procedural aspects of filing and protesting claims.
West Virginia Code 23-5-1 (Supp. 1996) provides the mechanism for both claimants and employers to object to decisions relating to workers' compensation claims. Subsection (b) of that section provides, in pertinent part:
Except with regard to interlocutory matters, upon making
any decision, upon the making or refusing to make any award,
or upon the making of any modification or change with respect
to former findings or orders, . . . the division shall give notice,
in writing, to the employer, employee, claimant, as the case may
be, of its action, which notice shall state the time allowed for
filing an objection to such finding, and such action of the
division shall be final unless the employer, employee, claimant
or dependant shall, within thirty days after the receipt of such
notice, object in writing, to such finding. . . .
W. Va. Code 23-5-1(b). In subsections (c) and (d), the terms "object" and "protest" are
used interchangeably.(6) The Workers' Compensation Act (the "Act"), West Virginia Code
23-1-1 to 23-6-1 (1994 & Supp. 1996), fully addresses the related review concepts of
objections, protests, and appeals. See W. Va. Code 23-5-1 to -5-15. We find it
significant that the Legislature failed to include in West Virginia Code 23-5A-2 any
language referencing the objection, protest, or appellate stage of a TTD claim. Had the
Legislature intended to extend the protection of health insurance coverage through this
procedural stage of a claim, logic suggests that such language would have followed the "is
receiving benefits" phrase of West Virginia Code 23-5A-2. We base this conclusion on
the fact that a claim for benefits necessarily precedes the receipt of such benefits, and the
protest or appellate stage of a claim is naturally subsequent to the receipt or denial of such
Further examination of the Act demonstrates that the absence of language expressly requiring employer-paid health benefits throughout the protest or appellate stage of a workers' compensation claim comports with both the statutory scheme of benefit payments and the objectives of prohibiting retaliatory conduct. Under our statutory system, TTD benefits are to be terminated when one of three conditions is met. Pursuant to West Virginia Code 23-4-7a(e) (Supp. 1996),
the division shall enter a notice suspending the payment of temporary disability benefits but providing a reasonable period of time during which the claimant may submit evidence justifying the continued payment of temporary total disability benefits when:
(1) The physician or physicians selected by the division conclude that the claimant has reached his or her maximum degree of improvement; or
(2) When the authorized treating physician shall advise the division that the claimant has reached his or her maximum degree of improvement or that he or she is ready for disability evaluation . . .
(3) When other evidence submitted to the division justifies a
finding that the claimant has reached his or her maximum
degree or improvement: Provided, That in all cases a finding by
the division that the claimant has reached his or her maximum
degree of improvement shall terminate the claimant's
entitlement to temporary total disability benefits regardless of
whether the claimant has been released to return to work . . . .
W. Va. Code 23-4-7a(e)(1)-(3) (emphasis supplied). In syllabus point one of Mitchell v. State Workmen's Compensation Commissioner, 163 W. Va. 107, 256 S.E.2d 1 (1979), we stated this rule as follows:
Under the Workmen's Compensation Act, W. Va. Code,
23-1-1, et seq., temporary total disability benefits should be
terminated where the Commissioner finds that a claimant either
has reached his maximum degree of medical improvement from
the industrial accident, or has been medically certified to return
163 W. Va. at 107, 256 S.E.2d at 4.
In this case, Appellant was determined to have reached her maximum degree of
medical improvement by the Commissioner's doctor in his report dated January 8, 1994, and
her claim was closed for purposes of further TTD benefits as a result of this determination
effective March 30, 1994. Although Appellant, or any other claimant, has the right to protest
the closure of her claim for TTD benefits,(7) the claimant is not entitled to further benefits
absent a favorable ruling with regard to her protest/appeal. Thus, were we to interpret the
"is claiming" language of West Virginia Code 23-5A-2 as encompassing the seemingly
indefinite length of the appellate stage of the workers' compensation claim, we would be
requiring employers to pay for the health insurance premiums of employees who are
statutorily no longer entitled to receive TTD benefits. While it makes sense that the
Legislature intended to extend health insurance coverage to employees during that time
period between an injury and the receipt of benefits, there is no corresponding basis for
suggesting that health benefits are to continue throughout the entire duration of all the
claimant's protests and appeals.(8) We similarly do not find such a result mandated by the
purpose of the anti-retaliatory statute at issue.
As previously discussed, this Court in Powell identified various factors for
consideration in connection with a claim of employer retaliation. Two of those factors that
have specific application to this case are the proximity of the alleged retaliation to the filing
of the workers' compensation claim and the existence of a neutral policy with respect to the
cessation of health benefits. In the instant case, the alleged discriminatory conduct occurred
almost eighteen months after Appellant filed her workers' compensation claim. While this
temporal factor is not in itself conclusive of the absence of discriminatory intent on the part
of the Board, further evidence that the Board was not acting in retaliation to Appellant's
filing of a claim for benefits is found in the fact that the Board was merely adhering to the
statutory requirements of West Virginia Code 5-16-24. That particular statute, which is
found in the West Virginia Public Employees Insurance Act, West Virginia Code 5-16-1
to -27 (1994 & Supp. 1996), only requires an employer to pay its proportionate share of an
employee's health care premium who is on a medical leave of absence for a period of one
year.(9) Thus, because the Board had not arbitrarily picked a one-year period for benefit
payments, but was instead complying with the statutory requirements governing public
employees' insurance, this certainly suggests adherence to a neutral, non-discriminatory
The Board argues that, after the one-year payment period imposed by West Virginia
Code 5-16-24 has expired, it is no longer subject to the statutory language of West Virginia
Code 23-5A-2. Given the location of these two statutes within completely distinct areas
of the Code, we are not persuaded by this argument. Accordingly, we determine that the
one-year limitation imposed by West Virginia Code 5-16-25 on an employer to pay its
proportionate share of the health insurance premiums for those employees on approved
medical leaves of absence is not controlling with respect to whether an employer can
terminate its payment of an employee's health insurance premiums without being in violation
of West Virginia Code 23-5A-2.
For the reasons previously set forth, we conclude that the absence of language
within West Virginia Code 23-5A-2 that specifically includes the protest/appeals stage of
a workers' compensation claim was intentional. A workers' compensation claimant who
is protesting the closure of her claim for temporary total disability benefits and/or the denial
of additional temporary total disability benefits does not come within the meaning of the
terms "is claiming" found in West Virginia Code 23-5A-2 (1994). Accordingly, an
employer who ceases to pay the health insurance premiums for a claimant who is protesting
or appealing the closure or denial of TTD benefits does not commit an act of discrimination
within the legislative intent of West Virginia Code 23-5A-2.
Based on the foregoing, we affirm the decision of the Circuit Court of Mason County.
1. See W. Va. Code 23-5-1(b) (Supp. 1996).
2. Based on Appellee's representations during oral argument, the MRI was later authorized by the office of judges.
3. The pertinent provisions of West Virginia Code 5-16-24 provide that:
Any employee who is on a medical leave of absence,
approved by his or her employer, shall, subject to the following
provisions of this paragraph, be entitled to continue his or her
coverage until he or she returns to his or her employment, and
such employee and employer shall continue to pay their
proportionate share of premium costs as provided by this article:
Provided, That the employer shall be obligated to pay its
proportionate share of the premium cost only for a period of one
year. . . .
W. Va. Code 5-16-24 (emphasis supplied).
4. The Board's argument is essentially that the provisions of West Virginia Code
23-5A-2 only apply to claimants who are claiming or receiving TTD benefits. Thus, the Board contends that once Appellant was claiming PTD benefits and protesting the denial of such benefits, she was outside the purview of West Virginia Code 23-5A-2. Finding no merit to this contention, we do not address it further.
5. Employers are permitted to terminate employees that have compensable injuries if "the injured employee has committed a separate dischargeable offense." W. Va. Code 23-5A-3(a). Section three also delineates the manner in which an employer is required to deal with the reemployment of injured employees. See W. Va. Code 23-5A-3(b).
6. To illustrate this interchangeability, subsection (d) provides that "[u]pon entering into mediation, the parties shall stay further action on the objection." Then later in that same subsection, the term "protest" is used in place of objection when the statute provides that "and the office of judges shall lift the stay on the original protest." W. Va. Code 23-5-1(d) (emphasis supplied).
7. See W. Va. Code 23-5-1.
8. Appellant suggests that requiring continued employer-paid health insurance benefits throughout the appeals process is consistent with the chief purpose of the Act--to protect the financial well-being of injured workers and their dependents. Appellant overlooks an equally important objective of the Act--"to effectuate his or her [an injured claimant's] return to work at the earliest possible time." W. Va. Code 23-4-7(a).
9. An employer can certainly choose to pay for an employee's health care coverage for longer than one year. The facts of this case indicate that the employer did just that as Appellant's health care premiums were paid by the Board for almost eighteen months following her injury.