Submitted: May 1, 2002
Filed: June 28, 2002
Roger D. Forman, Esq.
P. McGowan, Esq.
Michael R. Crane, Esq. Ancil G. Ramey, Esq.
Forman & Crane, L.C. Hannah B. Curry, Esq.
Charleston, West Virginia Steptoe & Johnson, P.L.L.C.
Attorneys for the Appellant Charleston, West Virginia
Attorneys for the Appellee
JUSTICE STARCHER delivered the Opinion of the Court.
CHIEF JUSTICE DAVIS concurs and reserves the right to file a concurring opinion.
JUSTICE ALBRIGHT concurs and reserves the right to file a concurring opinion.
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. Syllabus Point 1, Powell v. Wyoming Cablevision, Inc., 184 W.Va. 700, 403 S.E.2d 717 (1991).
3. An employer's termination of the employment of an injured employee because the employee voluntarily accepted rehabilitation services may support a claim for workers' compensation discrimination under W.Va. Code, 23-5A-1 .
As set forth below, after carefully examining the record we find genuine issues of material fact remain for consideration by the finder of fact. We reverse the circuit court's summary judgment order and remand the case for further proceedings.
Plaintiff-appellant Shelby D. Skaggs was employed as a motor man for defendant-appellee Eastern Associated Coal Corporation and was injured during the course of and as a result of his employment on October 2, 1997. The plaintiff filed a claim for workers' compensation benefits with the West Virginia Workers' Compensation Division, and received temporary total disability benefits during his recovery.
The defendant apparently had a policy mandating that injured workers submit to a functional capacity evaluation before being allowed to return to work. In a letter written to the plaintiff's doctor on October 20, 1997, 18 days after the plaintiff's injury, a workers' compensation claims administrator working on the defendant's behalf stated:
Eastern Associated Coal Corporation
is participating in a Rehabilitation Program approved by the Workers' Compensation
Division. As part of this program, Eastern Associated Coal Corporation employees
are required to complete a Functional Capacity Evaluation . . . .
Please do not return claimant to work prior to the initial functional capacity evaluation as their employer cannot accept them without this evaluation being completed.
In accordance with this company policy, on April 6, 1998, apparently before the plaintiff's injuries had fully healed, the plaintiff was required by the defendant to submit to a functional capacity evaluation. The report generated by the evaluator stated that the plaintiff could engage in light work, but that the plaintiff is currently unable to return to his former position as a Motorman[.]
Several months later, the plaintiff was evaluated by two different doctors _ Dr. Paul Bachwitt in August 1998 and Dr. John Kroening in December 1998. Both doctors concluded that the plaintiff had fully recovered and reached his maximum degree of medical improvement. Based upon these evaluations, the Workers' Compensation Division suspended the plaintiff's temporary total disability benefits on December 29, 1998, and the plaintiff was awarded a 4% permanent partial disability award.
Dr. Bachwitt's report indicated that the plaintiff could return any time to his customary duties with the defendant and should either be returned to work or put into a work hardening program. Dr. Bachwitt also indicated that he felt the claimant was a candidate for vocational rehabilitation because I feel all individuals are vocational rehabilitation candidates. Dr. Kroening similarly reported that the plaintiff did not need restrictions, accommodations or restrictive devices . . . to carry out usual activities or meet . . . appropriate occupational demands, but did state that [i]t would be reasonable to avoid hyperextension of the neck.
The defendant's workers' compensation claims were managed by a third-party administrator called Acordia. On May 13, 1999, a senior compensation specialist at Acordia, acting on behalf of the defendant, wrote a letter to the plaintiff. The letter stated that, based upon the functional capacity evaluation and the two doctors' reports, the plaintiff was being referred to Genex Services, Inc., a company that provides vocational rehabilitation services to employees who cannot return to their previous job in any capacity. The letter noted that the rehabilitation program was voluntary, and that [u]pon agreeing to participate in this program and while continuing to participate, [the plaintiff] will be eligible to receive . . . workers' compensation benefits at the temporarily totally disabled rate.
The plaintiff met with a representative from Genex on June 1, 1999, and signed a document entitled Notification Regarding Rehabilitation Services . . . Hierarchy of Rehabilitation Services. In accordance with regulations promulgated by the Workers' Compensation Division, (See footnote 1) the document listed the seven steps in the required hierarchy of rehabilitation services as follows:
1. Return of the employee to the pre-injury job with the same employer.
2. Return of the employee to the pre-injury job with the same employer with modification of tasks, work structure and work hours.
3. Return to employment with the pre-injury employer in a different position.
4. Return to employment with pre-injury employer with on-the- job training.
5. Employment with a new employer without training.
6. On-the-job training for employment with a new employer.
7. Retraining which shall consist of a goal-oriented period of formal retraining which is designed to lead to suitable gainful employment.
The document also states, at the top, that [c]lear objective documentation must exist indicating that the lower numbered plan is not appropriate in the given claim before a higher number can be considered.
At the bottom of the document is the statement that Genex had explained those rehabilitation services that could be made available to the plaintiff, and had recommended number 5 of the hierarchy of rehabilitation services. In other words, Genex recommended that the plaintiff be employed with a new employer without receiving any training. The plaintiff checked a box at the bottom stating he was willing and agree[d] to participate in rehabilitation services at this time, and signed the document.
Subsequently, on July 12, 1999, approximately six weeks after signing the Genex document, the plaintiff was sent a form letter by the defendant informing him his employment was terminated because [i]t has been determined from your medical records that your physical condition is such that is [sic] prevents you from returning to your regular work at the mine. No mention is made in the letter about the Genex document signed by the plaintiff.
The defendant, however, now characterizes the Genex document as, essentially, a contractual agreement by the plaintiff to accept rehabilitation services with the goal of obtaining employment with a new employer. In other words, the defendant interpreted the plaintiff's voluntary acceptance of rehabilitation services as his written concession that his physical condition was not going to improve, and that he was prevented by his physical condition from ever returning to employment with the defendant. On the basis of this voluntary statement by the plaintiff _ as well as the plaintiff's medical records _ his employment was terminated.
The plaintiff, however, argues that when he signed the document he did not intend to voluntarily give up his job with the defendant _ instead, he argues he signed the document intending to accept whatever rehabilitation services Genex would provide. He also argues that his medical records support that he could return to work at his prior position.
Furthermore, the plaintiff contends that his referral to rehabilitation at Step Five was part of a complex scheme by the defendant to discriminate against employees who receive workers' compensation benefits. He asserts that contrary to the statement at the top of the document, Genex had no clear objective documentation . . . indicating that the lower numbered plan[s] were not appropriate in the plaintiff's case. The plaintiff asserts that the defendant has produced no documentation indicating why Steps One through Four of the rehabilitation hierarchy were ignored. Instead, the plaintiff contends that he was referred directly to Step Five of the rehabilitation hierarchy primarily because of an unwritten company policy of the defendant.
As evidence of this unwritten policy, the plaintiff cites to the deposition of the senior compensation specialist at Acordia who referred the plaintiff for rehabilitation. She testified that:
A. Under Eastern's Employer Managed Rehab Plan claims don't get referred to a rehab specialist until it is Step 5 of the hierarchy, which means they can't return to work for the preinjury employer. And Step 5 is seeking employment with a new employer. . . .
Q. Who made the decision that it was at Step 5? . . .
A. The medical records in the file determined that he was not capable of returning to the preinjury employer, which is Steps 1- 4. The file was generated to me by the nurse/case manager on the claim. . . .
Q. So by the time the referral
was made to you, by the time the file was given to you, somebody had made the
decision that it was at Step 5?
Furthermore, the Acordia specialist testified that injured employees of the defendant were never referred to rehabilitation for anything other than Step Five. She stated:
A. We work with Eastern Associated Coal closely and know that there is not any modified duty available for injured workers. If they can't return to their preinjury job, then there is no work available for them. . . . We discuss it at claims-review meetings or telephone conversations. . . .
Q. You have had discussions with employees at meetings and conversations and you know . . . that if you can't return to your preinjury job at Eastern you are at Step 5. . . .
Q. How many cases have you done involving the Eastern people and referrals to rehab?
A. I couldn't give you a specific number . . . . Probably closer to 50, and that is an estimate.
Q. So in every one of those cases you have been aware that if they couldn't return to their past work they are at Step 5 if they agree to go into rehab?
A. Yes. . . .
Q. Would you consider that a policy that you are following? . . . If someone comes to you with a referral to rehab, then they are at Step 5? . . .
Q. Is that published anywhere?
Q. Is it in any documents that you have seen?
Q. But it is something that you know routinely?
Q. Without exception? . . .
A. I have never had an exception.
The plaintiff filed the instant action on September 30, 1999, (See footnote 2) alleging that he was discriminated against and illegally discharged from his job on account of his receipt of workers' compensation benefits, in violation of W.Va. Code, 23-5A-1 . The plaintiff's theory was that the rehabilitation process utilized by the defendant was discriminatory in nature.
After conducting discovery, and particularly after the above-quoted deposition, the plaintiff moved to amend his complaint to add as defendants Acordia and Genex. He also moved to certify the case as a class action, arguing that the evidence showed that up to 50 other people had lost their jobs with the defendant due to the allegedly discriminatory use of the workers' compensation rehabilitation system by the defendant.
The circuit court did not rule upon the plaintiff's motions. Instead, upon a motion of the defendant, the circuit court granted summary judgment against the plaintiff. In an order dated June 7, 2001, the circuit court found that the plaintiff voluntarily signed the agreement to accept rehabilitation services with a goal of obtaining employment with a new employer. The circuit court also found that the plaintiff received temporary total disability benefits while receiving rehabilitation services, and that the plaintiff never objected to the rehabilitation services provided by the defendant.
The circuit court concluded that the plaintiff voluntarily participated in the rehabilitation program developed in accordance with the rules and regulations promulgated by the Workers' Compensation Division. Because the plaintiff acknowledged that his participation was based upon his inability to work with Eastern, the circuit court ruled that the plaintiff could not voluntarily accept the benefits of the program and then complain that he was not entitled to them. The circuit court therefore held that the plaintiff had failed to establish the elements of a wrongful discharge cause of action under the Workers' Compensation Act, and granted summary judgment to the defendant.
The plaintiff now appeals the circuit court's June 7, 2001 order.
We believe that the employer's
use of a system of preferred providers for rehabilitation services in the instant
case could be interpreted as a pretext for a scheme to terminate employees who
had received workers' compensation benefits. We therefore find that substantial
questions of material fact remain, and that the circuit court erred in granting
summary judgment to the defendant.
(See footnote 3)
After carefully reviewing the record, we can infer that the defendant may have employed this complicated system to remove from its payroll employees who sustain injuries in the course of and resulting from their employment. To begin, in a letter written to the plaintiff's doctor 18 days after the plaintiff's injury, a representative for the defendant indicated that as part of the defendant's approved rehabilitation program, the plaintiff could not be returned to work without having a functional capacity evaluation. This letter was written 20 months before the plaintiff was ever referred to the rehabilitation program, and the functional capacity evaluation (performed four to eight months before the plaintiff had completed his recovery from his injuries) was, in part, the basis for the plaintiff's referral.
Furthermore, even though two doctor's reports indicated the plaintiff could return to the defendant for work, a claims representative at Acordia unilaterally determined that the plaintiff should instead be referred to a rehabilitation provider, Genex.
Remarkably, the claims representative, and not the rehabilitation provider, appears to have determined that rehabilitation should begin at Step Five _ that is, that the plaintiff was to obtain a job with another employer without receiving any training. As previously stated, the regulations of the Division place the responsibility for classifying a claimant's condition in the rehabilitation hierarchy in the Commissioner, and not in the employer. McKenzie, ___ W.Va. at ___, ___ S.E.2d at ___ (Slip Op. at 32-33). Workers' compensation regulations state:
No higher numbered priority may be utilized unless the commissioner has determined that all lower numbered priorities are unlikely to result in the placement of the injured worker into suitable gainful employment.
85 C.S.R. § 15-4.1 (emphasis added). The record suggests that the defendant's representative at Acordia never referred a claimant employed by the defendant to rehabilitation at any step other than Step Five, and had done so in approximately 50 other cases. We presume that in each of these cases, as with the plaintiff's case, the claimant's job with the defendant was terminated.
In sum, the defendant relied upon a system that apparently was in contravention of the Workers' Compensation Act, and that was employed in a fashion contrary to the dictates of the workers' compensation statutes and regulations, to suggest that the plaintiff voluntarily relinquished his job and sought employment elsewhere because he was unable to perform his job, or any job, with the defendant.
We believe that an employer's use of a rehabilitation system, particularly one that is contrary to the Act, as discussed in State ex rel. McKenzie v. Smith, to remove an injured employee from the payroll may form the basis for a prima facie case of discrimination under the Act. We hold that an employer's termination of the employment of an injured employee because the employee voluntarily accepted rehabilitation services may support a claim for workers' compensation discrimination under W.Va. Code, 23-5A-1.