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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2005 Term
THERESA D. MESSER,
HUNTINGTON ANESTHESIA GROUP, INC.,
DR. FAROUK ABADIR, DR. HOSNEY S. GABRIEL,
DR. MARK NEWFELD, DR. RICARDO RAMOS, DR. ALFREDO
RIVAS, DR. D. GRANT SHY, DR. STANISLAV STRIZ
and DR. MICHAEL VEGA,
Appeal from the Circuit Court of Cabell County
Honorable John L. Cummings, Judge
Civil Action No. 02-CV-0625
AFFIRMED, IN PART, REVERSED, IN PART
Submitted: March 22, 2005
Filed: July 7, 2005
| Walt Auvil
The Employment Law Center, PLLC
Parkersburg, West Virginia
Attorney for Appellant
Elizabeth D. Harter
Mark H. Dellinger
Bowles, Rice McDavid Graff & Love, LLP
Charleston, West Virginia
Attorneys for Appellees
| Darrel V. McGraw, Jr., Attorney
Jamie S. Alley
Assistant Attorney General
Paul R. Sheridan
Assistant Attorney General
West Virginia Attorney General's office
Charleston, West Virginia
Attorneys for Amicus Curiae The West Virginia Human Rights Commission
JUSTICE BENJAMIN delivered the opinion of the Court.
JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion.
SYLLABUS OF THE COURT
review of a circuit court's order granting a motion to dismiss a complaint is de
Syllabus point 2, State ex rel. McGraw v. Scott Runyon Pontiac-
, 194 W. Va. 770, 461 S.E.2d 516 (1995).
ultimate determination of whether qualified or statutory immunity bars a civil
action is one of law for the court to determine. Therefore, unless there is a
bona fide dispute as to the foundational or historical facts that underlie the
immunity determination, the ultimate questions of statutory or qualified immunity
are ripe for summary disposition. Syllabus point 1, Hutchison v. City
198 W. Va. 139, 479 S.E.2d 649 (1996).
West Virginia Workers' Compensation Act, W. Va. Code § 23-2-1 et
, is directed at compensating an employee who has suffered an injury
or disease in the course of and resulting from his/her employment and at shielding
the employer from liability outside the workers' compensation system for such
injury. West Virginia Human Rights Act, W. Va. Code §5-11-1 et seq.
directed towards actions of an employer in discriminating against an employee
because of his or her disability and it would be inconsistent with the purposes
of the West Virginia Human Rights Act, W. Va. Code §5-11-1 et seq
to limit its applicability to physical-injury disabilities unrelated to work.
the extent that a worker's injuries are of the type cognizable under W. Va. Code § 23-4-1
for which workers' compensation benefits may be sought, including aggravations
and physical and non-physical conditions which flow directly and uniquely from
such injury, the exclusivity provisions of the Workers' Compensation Act, W. Va.
Code §§ 23-2-6 and -6a, prohibit recovery outside of the mechanisms
set forth in the West Virginia Workers' Compensation Act. To the extent that
a worker's injuries are directly and proximately caused by the unlawful discriminatory
acts of his or her employer, and are of a type not otherwise recoverable under
the Workers' Compensation Act, we hold that the exclusivity provision of the
Workers' Compensation Act is inapplicable.
an aggravation or worsening of an employee's physical injury by the conduct of
his/her employer may be compensable under and thus subject to, the exclusive
remedy provided by the Workers' Compensation Act, an employee's claim against
an employer for violation of the West Virginia Human Rights Act and resulting
non-physical injuries, such as mental and emotional distress and anguish, directly
and proximately resulting from such violation and not associated with the physical
injury or the aggravation or worsening thereof are not barred by the exclusivity
provisions of the Workers Compensation Act.
case is before the Court upon the appeal of the Appellant, Theresa D. Messer
(Messer), from the August 18, 2003, order of the Circuit Court of
Cabell County, West Virginia, in Civil Action No. 02-C-0635, wherein the court
granted the motion of the defendants, Huntington Anesthesia Group, Inc., Dr.
Farouk Abadir, Dr. Hosny S. Gabriel, Dr. Mark Newfeld, Dr. Ricardo Ramos, Dr.
Alfredo Rivas, Dr. D. Grant Shy, Dr. Stanislav Striz, Dr. Michael Vega, and David
Easter (hereinafter collectively referred to as Appellees), to dismiss
Appellant's complaint pursuant to Rule 12(b)(6) of the West Virginia Rules of
Civil Procedure for failure to state a claim upon which relief could be granted.
In her complaint, Messer sought recovery under The West Virginia Human Rights
Act (the WVHRA) for both an aggravated or worsened physical injury
and non-physical injuries stemming from the alleged refusal of Appellee Huntington
Anesthesia Group, Inc., her employer, to accommodate her disability, a herniated
disc at L4-L5. The circuit court made two findings in its August 18, 2003, order:
The West Virginia Human Right Act does not create a cause of action for workplace
Any injuries as alleged and sustained are the exclusive jurisdiction of the Workers'
Messer, asks this Court to reverse the circuit court's August 18, 2003, order
because its findings are contrary to West Virginia law, to the holdings of the
overwhelming majority of state courts which have considered the issue, and to
formal guidance from the U.S. Equal Employment Opportunity Commission (EEOC)
on analogous federal civil rights protections. Messer's position is supported
by the West Virginia Human Rights Commission (HRC) in a brief as amicus
curiae. Appellees, on the other hand, contend that Messer improperly seeks
to expand the scope of the WVHRA, W. Va.Code §5-11-1 et seq.,
to create a cause of action for workplace injuries in contravention of the exclusivity
provisions of the West Virginia Workers' Compensation Act (Workers' Compensation
Act), W. Va. Code §§ 23-2-6 (2003) and 6a (1949).
Court has before it Appellant's petition for appeal, all matters of record, the
briefs of the parties, the brief of the HRC as amicus curiae, and has
heard oral argument of counsel. For the reasons stated below, the circuit court's
order of August 18, 2003, is reversed, and this case is remanded to the circuit
court to allow it to proceed, consistent with this opinion, without being barred
by the exclusivity provisions of the West Virginia Workers' Compensation Act.
FACTS AND PROCEDURAL BACKGROUND
Appellant's complaint was dismissed at the pleading stage, the facts are largely
as alleged therein, which, for purposes of a Rule 12 (b) (6) motion, are to
be taken as true. Sticklen v. Kittle,
168 W. Va.. 147, 163, 287
S.E.2d 148, 157 (1981)(citing John W. Lodge Distributing Co. v. Texaco
161 W.Va. 603, 605, 245 S.E.2d 157, 158 (1978)). Messer's complaint was filed
on August 1, 2002. According to Appellees' brief, David Easter, the last named
defendant, is deceased, and on January 28, 2003, the circuit court entered
an order dismissing him from the action with prejudice and amending the case
alleges that Messer was employed as a Certified Registered Nurse Anesthetist
by Appellees from September 13, 1988, until an unspecified date in September,
2000; and that at all relevant times, she suffered from a herniated disc at L4-L5,
which limited her ability to lift, stand, and work. After January, 1998, Messer
alleges that her primary treating physician informed Appellees on multiple occasions
that Messer was limited to eight-hour work days, lifting restrictions, and that
she should refrain from overtime due to her injury. Messer asserts
that Appellees ignored these restrictions and that Appellees failed to accommodate
her physical handicap. As a result, Messer claims that her
physical condition progressed and worsened to the point in September, 2000,
that she was no longer able to perform her duties as a Certified Registered
Nurse Anesthetist for Appellees.
is not fully developed as to the underlying injury which caused Messer's back
problems or Messer's later aggravations. It is apparent to the Court from the
thrust of Messer's arguments that her physical claims herein were largely, if
not entirely, within the scope of coverage of the Workers' Compensation Act.
Appellees claim that Messer sustained a compensable work-related back injury
on August 8, 1997. A few years later, Appellees assert that Messer experienced
an exacerbation of her compensable injury which required reopening of her workers'
compensation claim in October of 2000. Appellees argue that Messer . .
. has received workers' compensation benefits for the injuries she alleges in
the instant action. Messer's pleadings are silent as to the nature of her
back injury or whether she, in fact, received workers' compensation benefits
in whole or in part for the physical injuries alleged herein. Messer merely alleges
that she has at all times relevant hereto suffered from a herniated disc
at L4-L5. (See footnote
In reply to Appellees'
factual statements, Messer does not expressly deny such representations with
respect to Messer filing a workers' compensation claim, reopening the claim,
or receiving workers' compensation benefits for the injuries she alleges in
the instant action. Although she states that [t]here is no support in
the record for several assertions made in the introduction to Appellees' brief
because there has been no factual development in this matter, she does
not identify what those assertions are. Nor does she deny the representations
which Appellees made in their Statement of Facts and Argument.
above, the circuit court in an order issued on August 18, 2003, granted Appellees'
motion pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure
to dismiss Messer's complaint for failing to state a claim upon which relief
could be granted. In so ordering, the court made two findings, namely, that the
WVHRA does not create a cause of action for workplace injuries, and that such
injuries are the exclusive jurisdiction of the Workers' Compensation Act.
STANDARDS OF REVIEW
review of a circuit court's order granting a motion to dismiss a complaint
is de novo. Syllabus point 2, State ex rel. McGraw v. Scott
Runyon Pontiac- Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995). The
ultimate determination of whether qualified or statutory immunity bars a civil
action is one of law for the court to determine. Therefore, unless there is
a bona fide dispute as to the foundational or historical facts that underlie
the immunity determination, the ultimate questions of statutory or qualified
immunity are ripe for summary disposition. Syllabus point 1, Hutchison
v. City of Huntington, 198 W. Va. 139, 479 S.E.2d 649 (1996).
The Issue on Appeal and the Nature of Appellant's Claims
appeal presents the issue of whether the exclusivity provisions of the West
Virginia Workers' Compensation Act shield an employer from the injuries directly
by its unlawful discriminatory conduct against an employee in the workplace.
Stated differently, we consider on this appeal whether an employee may seek
to recover under the WVHRA for actual injuries caused not by an injury received
in the course of and arising out of his or her employment for which workers'
compensation benefits would ordinarily be payable, but rather for actual injuries
of a kind for which workers' compensation benefits are not ordinarily payable,
which flow directly and uniquely from the employer's unlawful discrimination
against the employee. Key to our consideration of the issues presented are
the important policies codified within the Workers' Compensation Act and the
WVHRA, both systems of legislative creation. This consideration leads us necessarily
to distinguish not only the nature of the acts alleged to have caused the claimed
injuries, but also the type of injuries for which recovery is claimed and whether
or not such injuries depend for their viability upon an injury which was compensable
under the Workers' Compensation Act.
of Messer's claims is that she sustained an aggravation or worsening of an underlying
physical injury because of Appellees' refusal to abide by her work restrictions
and that Appellees violated their obligation of accommodation and interaction
under the WVHRA. In addition, she seeks recovery for non-physical injuries, which
she describes as emotional distress, mental distress and anguish, stemming
from the same refusal and violation, and for the nonphysical injuries she is
seeking, according to her complaint, damages for mental and emotional distress,
lost wages, value of lost benefits,
cost and attorney fees, reinstatement, injunctive relief against future violations
of the law, and such other and further relief as may upon the premises be appropriate. Messer
contends some claimed injuries are not recoverable in a workers' compensation
claim, but admits that others are. In its brief as amicus curiae, the
HRC focuses its attention on Appellees' failure to accommodate, arguing [a]n
action alleging breach of the duty to reasonably accommodate is not an action
for workplace injury compensation.
The Workers' Compensation Act
essence of the exclusivity of the Workers' Compensation Act for work- related
injuries is found at W. Va. Code §23-2-6 (2003), which provides that
an employer is not liable to respond in damages at common law or by statute
for the injury or death of any employee, however occurring. (See
In State ex rel. Abraham Linc Corporation v. Bedell,
W. Va. 99, 602 S.E.2d 542, 546-547 (2004) (per curiam), we had an opportunity
to comment on the important principles underlying the Workers' Compensation
system and the scope of this exclusivity provision of W. Va. Code § 23-2-6
Workmen's Compensation Act was designed to remove negligently caused industrial
accidents from the common law tort system. Mandolidis v. Elkins Indus.,
161 W. Va. 695, 700, 246 S.E.2d 907, 911(1978), superseded
by statute as stated in Handley v. Union Carbide Corp.
, 804 F.2d 265, 269
Cir. 1986). The benefits of this system accrue both to
the employer, who is relieved from common-law tort liability for negligently
inflicted injuries, and to the employee, who is assured prompt payment of benefits. Meadows
, 172 W. Va. 457, 469, 307 S.E.2d 625, 638 (1983); see also Persinger
v. Peabody Coal Co.
, 196 W. Va. 707, 713, 474 S.E.2d 887, 893 (1996). State
ex rel. Abraham Linc. Corp.
, 216 W.Va. 99, 602 S.E.2d at 546. [In footnote
seven, the Court stated: That philosophy has commonly been described as
a quid pro quo
on both sides: in return for the purchase of insurance
against job-related injuries, the employer receives tort immunity; in return
for giving up the right to sue the employer, the employee receives swift and
sure benefits. Dominion Caisson Corp. v. Clark
, 614 A.2d 529, 532-33
(D.C. 1992) quoting Meiggs v. Associated Builders, Inc.
545 A.2d 631, 634 (D.C. 1988), cert. denied
, 490 U.S. 1116, 109 S. Ct.
3178, 104 L.Ed.2d 1040 (1989).]
this Court succinctly stated in State ex rel. Frazier v. Hrko
, 203 W. Va.
652, 510 S.E.2d 486 (1998), '[w]hen an employer subscribes to and pays
premiums into the Fund, and complies with all other requirement of the Act, the
employer is entitled to immunity for any injury occurring to an employee and
shall not be liable to respond in damages at common law or by statute.' W. Va.Code,
23 -2-6 . 203 W. Va. at 659, 510 S.E.2d at 493. Footnote eleven
explained: This statute is also known as the 'exclusivity'
provision, as it makes workers' compensation benefits the exclusive remedy for
personal injuries sustained by an employee injured in the course of an resulting
from his or her covered employment. Id. at 659 n. 11, 510 S.E.2d at 493
n. 11. State ex rel. Abraham Linc. Corp.
, 216 W.Va. 99, 602 S.E.2d at
immunity provided by § 23-2-6 is not easily forfeited. As the District Court
for the Southern District of West Virginia explained in Smith v. Monsanto
, 822 F. Supp. 327 (S.D.W.Va 1992), [u]nder the Act, an employer
who is otherwise entitled to immunity under § 23-2-6 may lose immunity in
only one of two ways: (1) by defaulting in payments required by the Act or otherwise
failing to comply with the provisions of the Act, or (2) by deliberately intending
to produce injury or death to the employee. 822 F.Supp. at 330 (citation
State ex rel. Abraham Linc. Corp.
, 216 W.Va. 99, 602 S.E.2d at 547. The
effect of this exclusivity is, by statute, far-reaching. In W. Va.Code §23-4-2(d)(1)
and (2) (2003), the Legislature declared:
. . that enactment of this chapter and the establishment of the workers' compensation
system in this chapter was and is intended to remove from the common law tort
system all disputes between or among employers and employees regarding the compensation
to be received for injury or death to an employee except as expressly provided
in this chapter . . . ; that the immunity established in sections six [§ 23-2-6]
and six-a [§ 23-2-6a], article two of this chapter is [deemed] an essential
aspect of this workers' compensation system; that the intent of the Legislature
in providing immunity from common lawsuit was and is to protect those immunized
from litigation outside the workers' compensation system except as expressly
provided in this chapter; that, in enacting the immunity provisions of this
chapter, the Legislature intended to create a legislative standard for loss of
that immunity of more narrow application and containing more specific mandatory
elements than the common law tort system concept and standard of willful, wanton
and reckless misconduct; and that it was and is the legislative intent to promote
prompt judicial resolution of the question of whether a suit prosecuted under
the asserted authority of this section is or is not prohibited by the immunity
granted under this chapter.
The immunity from suit provided under this section and under section six-a, article
two of this chapter may be lost only if the employer or person against whom liability
is asserted acted with deliberate intention. [sic]
Id. (Emphasis added).
considered together, the words injury and however occurring, in
W. Va. Code § 23-2-6 (2003) and the expression of legislative intent
in W. Va. Code § 23-4- 2 (d) (1) (2003) provide employers with an
expansive immunity from liability outside the
workers' compensation system for workplace injuries of employees. (See
footnote 3) This immunity, however, is not absolute. Exceptions
to this immunity are set forth specifically and implicitly in the Workers'
exceptions to the exclusivity provision of W. Va. Code § 23-2-6 (2003) exist,
the Legislature has been extremely restrictive in creating such exceptions. For
example, an employer is not immune from lawsuit for workplace injuries if the
acted with deliberate intention. W. Va. Code §23-4-2(d)(2)
(2003). (See footnote 4) Messer
does not claim that she comes within this exception.
has also specifically set forth private civil remedies outside of the exclusivity
provision for certain discriminatory practices by an employer related to employees
who have compensable injuries. W. Va. Code § 23-5A-1, et seq. (See
footnote 5) Though Messer
apparently does not invoke these anti-discrimination provisions of the Workers'
Compensation Act, we do find such provisions revealing with respect to the
types of acts and resulting injuries which the Legislature has envisioned to
fall within and without of the exclusivity provision of W. Va. Code § 23-2-6
exceptions reveal that the most significant word in the exclusivity provision
of W. Va. Code §23-2-6 (2003) for purposes of the issues before us
in the instant matter is the term injury. In considering any potential
exception to the exclusivity provision, i.e., that an employer is
not liable to respond in damages at common law or by statute for the injury or
death of any employee, however occurring, we must look to the
other provisions of the Workers' Compensation Act to determine the Legislature's
intent in defining what is and what is not a compensable injury for
purposes of the exclusivity provision. Id. W. Va. Code § 23-4-1, et
seq., establishes that injuries and defined occupational diseases incurred in
the course of and resulting from [an employee's] covered employment are
compensable injuries. W. Va. Code, § 23-4-1, et seq. Implicit in
this statutory definition of injury is the limitation that only
occupational diseases as hereinafter defined are compensable. W.
Va. Code § 23-4-1(b) (2003). We must draw from this express limitation
that the Legislature intended certain work-related events, here, occupational
diseases not hereinafter defined to not come within the meaning
of injury for purposes of the Workers' Compensation Act generally
and the exclusivity provision specifically.
also expressly exempted other work-related injuries from the definition of what
may be a compensable injury for purposes of the Workers' Compensation Act. For
instance, W. Va. Code § 23-4-1f (1993) states that [f]or the
purposes of this chapter, no alleged injury or disease shall be recognized as
a compensable injury or disease which was solely caused by nonphysical means
and which did not result in any physical
injury or disease to the person claiming benefits. It is the purpose of this
section to clarify that so-called mental-mental claims are not compensable
under this chapter. (See
list of work-related injuries exempted from the provisions of the Workers' Compensation
Act (and, consequently, from the exclusivity provision of W. Va. Code § 23-2-6
(2003)), are the other express statutory exceptions within the Workers' Compensation
Act discussed above; namely, injuries caused by an employer's deliberate
intention, as defined by W. Va. Code § 23-4-2 (2003), and injuries
caused by certain discriminatory actions by an employer, as set forth in W. Va.
Code § 23-5A-1, et seq. We find these latter two exceptions especially
noteworthy for purposes of the matter before us since, in both instances, the
Legislature has focused on the acts which underlie the resulting work-related
injury as being determinative of whether the exclusivity provision is applicable.
C. The West Virginia Human Rights
of the WVHRA (See footnote
is, among other things, to assure equal employment opportunities
to individuals with certain disabilities by making certain discriminatory practices
unlawful. W. Va. Code § 5-11-9 (1998). (See
The term 'discriminate'
or 'discrimination' means to exclude from, or fail or refuse to extend to,
a person equal opportunities because of . . . disability . . . . W. Va.
Code § 5-11-3(h) (1998). Disability means a mental or physical impairment
which substantially limits one or more of a person's major life activities.
W. Va. Code § 5-11-3(m) (1998). (See
May 19, 1994, the HRC adopted legislative Rules Regarding Discrimination
Against Individuals With Disabilities, which appear in W. Va.
C.S.R. §77-1-1 et seq. W. Va. C.S.R. § 77-1-4.5 obligates an employer to make
reasonable accommodation to the known physical or mental impairments of qualified
individuals with disabilities where necessary to enable a qualified individual
with a disability to perform the essential functions of the job.
v. Elk Run Coal Company, Inc., 198 W. Va. 51, 64, 479 S.E.2d 561, 574
(1996), this Court acknowledged that although the WVHRA does not have an explicit
provision obligating employers to provide reasonable accommodation for disabled
individuals, the West Virginia [HRC] and this Court have inferred that
our [HRA] imposes this duty of reasonable accommodation. In support of
this observation, the Skaggs Court referenced 77 W. Va. C.S.R. 1, § 4.4
(1994) and Morris Mem. Convalescent Nursing Home, Inc. v. W. Va. Human Rights
Comm'n., 189 W. Va. 314, 431 S.E.2d 353 (1993), and Coffman v. W.
Va. Bd. of Regents, 182 W. Va. 73, 386 S.E.2d 1 (1988).
Court's decision in Coffman is remarkable in three respects: It was
this Court's first disability discrimination case under the WVHRA it was later
overruled, and it foreshadowed the issue on appeal in this case. Coffman, while
employed as a Custodian I at the West Virginia University Hospital, injured
her back in emptying garbage cans. She missed a month's work because of her
injuries during which time she received temporary total disability benefits
from workers' compensation. Upon returning to her position as
Custodian I, her back continued to be painful and an orthopedist who examined
her recommended that Coffman no longer work in either the housekeeping or dietary
departments and that she not be placed in a position that required prolonged
sitting. Some two months later, her employment was terminated by her employer.
She thereupon filed a complaint in the Circuit Court of Monongalia County charging
that she had been wrongfully discharged because of her disability. A jury returned
a verdict in her favor in the amount of $55,600. The Board of Regents appealed
and this Court reversed the judgment of the circuit court, set the verdict
aside, and remanded the case with instructions to enter judgment in favor of
the employer. The basis of this Court's decision was that
accommodation' requires only that an employer make reasonable modifications or
adjustments designed as attempts to enable a handicapped employer to remain in
the position for which he was hired. Where a handicapped employee can no longer
perform the essential functions of that position, reasonable accommodation does
not require the employer to reassign him to another position in order to provide
him with work which he can perform.
Id. at 78, 6.
Skaggs overruled Coffman and
in doing so stated that Coffman was flat out wrong, both on its
facts and in its dicta ruling out transfers as a reasonable accommodation.
198 W.Va. at 69, 479 S.E.2d at 579. However, Coffman is of interest
to our consideration of the issues in the present matter. In its footnote 16,
the Coffman Court stated:
party has challenged the fact and we, therefore, acknowledge that Coffman was
handicapped by West Virginia law. We, however, note that she became handicapped
as a result of an injury sustained on the job during the course of her employment.
In this regard, we are concerned as to why Coffman did not pursue a claim for
workers' compensation benefits beyond the 30-day period of temporary total disability.
The appellants do not raise the issue of workers' compensation and we, therefore,
do not address it. We note that the intent of the legislature inherent in the
enacting of the handicapped provisions of the West Virginia Human Rights Act
was to assure equal opportunities for the handicapped in housing and employment.
W. Va. Code § 5-11-2. Thus, we cannot conclude that the legislature
intended the handicapped provisions of the West Virginia Human Rights Act as
an alternative source of compensation for injuries sustained on the job.
Coffman, 182 W.Va. at 79, 386 S.E.2d at 7. (Emphasis added.)
dissenting opinion to the Coffman decision, Justice Miller stated that
he was at a loss to understand footnote 16 of the majority's opinion [for]
[i]t seems to suggest that the legislature did not intend to accord handicapped
workers any right if they were injured on the job. Id. at 85, 13.
Justice Miller went on to observe that workers' compensation benefits [both
awards for temporary and permanent disability] relate to the employee's injuries
and have nothing to do with his status under the handicap law. This
latter provision is designed to prevent discrimination against a person who
has a handicap. Id. at 85-86, 13-14. Nor, he said, is
it possible to ascribe any legislative intent that employees handicapped as
a result of occupational injuries were to be excluded from the coverage of
the handicap discrimination law. Id. at 86, 14. Justice Miller
concluded his dissent with these statements:
type of issue has been raised in several cases, and the courts have had no difficulty
in rejecting it on the basis that each statute is designed to accomplish distinctly
different purposes. The Workers' Compensation Act affords compensation for a
worker's injuries and permanent disabilities. The handicap provisions of the
Human Rights Act enables him to continue in employment if his injuries do not
prevent him from performing the essential functions of his job with the help
of reasonable accommodation. E.g. Boscaglia v. Michigan Bell Telephone Co.,
420 Mich. 308, 362 N.W.2d 642 (1984); Reese v. Sears, Roebuck & Co. 107 Wash.
2d 563, 731 P.2d 497 (1982) (En Banc); cf. Jones v. Los Angeles Community
College Dist., 198 Cal. App. 3d 794, 244 Cal. Rptr. 37 (1988).
Id. at 86, 14.
sixteen years since Justice Miller's dissent in Coffman, there have been
a number of decisions in other jurisdictions where alleged employer disability
discrimination against an employee has resulted from a workplace physical injury.
In those decisions, the courts have had to reconcile the exclusivity provisions
of their states' workers' compensation statutes and their human rights, civil
rights and fair employment acts.
Employment-Related Injuries: Workers' Compensation and Civil Rights Coverage
Cases From Other Jurisdictions
review of the status of law regarding the interaction of workers' compensation
laws and civil rights laws from other jurisdictions in the United States provides
a valuable insight into how other states have considered the issue before us
herein. While each state necessarily has its own unique set of workers' compensation
and civil rights laws, the underlying public policies for such laws have many
similarities to our workers' compensation and civil rights laws. Though not
precedential, a look to other states provides us some persuasive direction
into our consideration of this appeal.
v. Dillmeir Enterprises, Inc., 956 S.W.2d 155 (Ark. 1997), Davis sustained
bilateral carpal syndrome resulting from her employment for which she was
compensated under Arkansas' workers' compensation laws. 956 S.W.2d at 156.
She was assigned a rating of five percent permanent physical impairment in
each upper extremity. Having obtained a release from further treatment, Davis
reported to work and was immediately terminated from employment by her employer.
She thereupon brought an action
against her former employer for discrimination based upon a physical disability,
in violation of the Arkansas Civil Rights Act for which she claimed damages
in the form of lost wages, mental anguish, and loss of dignity. She also asked
for punitive damages. The trial court dismissed the complaint reasoning
that it was the General Assembly's intent that the remedies provided under
the Workers' Compensation Act were to be exclusive. Id. at 157.
the injury sustained by Davis by her termination from that caused by her compensable
physical injury, the Supreme Court of Arkansas reversed the trial court's dismissal
of Davis' complaint and remanded the case to allow Davis to proceed with her
termination claim under the Arkansas Civil Rights Act. The Court reasoned as
is no remedy under the Workers' Compensation Act for an employee who is terminated
from his or her job on the basis of a disability. Thus, the exclusive-remedy
provision of the Act does not preclude Appellant from bringing an action under
the Arkansas Civil Rights Act based upon Appellee's alleged discrimination in
terminating her on the bases of her permanent restrictions and impairments. In
this respect, we agree with the reasoning espoused by the Washington Supreme
Court [in Reese v. Sears, Roebuck & Co., 107 Wash.2d 563, 731 P.2d
497 (Wash.1987), overruled on other grounds by Phillips v. City of Seattle, 111
Wash.2d 903, 766 P.2d 1099 (Wash. 1989)] that it matters not how the disability
came about; rather, the focus should be upon the subsequent deliberate action
by the employer in terminating the employee based upon a disability. Additionally,
we are persuaded that the rights and remedies provided by both Acts are considerably
different and serve to fulfill different purposes. Appellant has alleged two
separate injuries_one being a work-related physical injury, for which she
has received workers' compensation benefits, and one being a subsequent nonphysical
injury arising from Appellee's action in terminating her based upon her physical
disability. The first injury is exclusively cognizable under the Workers' Compensation
Act, while the subsequent injury is of the type envisioned by the Arkansas
Civil Rights Act of 1993.
Id. at 160-61. (Emphasis added.)
of Moorpark v. Superior Court of Ventura County, 959 P.2d 752 (Cal. 1998),
plaintiff was an administrative secretary employed by the city who
suffered a work- related knee injury. Her supervisor terminated her employment
because her injury prevented her from performing essential job functions.
Plaintiff filed a lawsuit against the city claiming discrimination based
on a physical disability in violation of California's Fair Employment and
Housing Act (FEHA). The city defended asserting that plaintiff's action was
barred by the exclusivity provisions of the workers' compensation law. The
trial court disagreed and the Supreme Court of California affirmed.
in Moorpark was whether California Labor Code section 132a provided the
exclusive remedy for discrimination based on a work-related disability, precluding
FEHA or common law wrongful discharge claims. Section 132a prohibited
employers from discriminating against employees who are injured in the
course and scope of their employment. City of Moorpark, 959 P.2d
at 756. The California court had earlier ruled that when an injury of the kind
described in section 132a results in disability, that section prohibits discrimination
based on the disability. Judson Steel Corp. v. Workers' Comp. Appeals Bd., 586
P.2d 564 (Cal. 1978). In addition, the FEHA prohibited various types of employment
discrimination, including discrimination based on a disability.
The Moorpark court
found that the existence of a workers' compensation remedy does not, by itself,
establish the exclusivity of that remedy, and emphasized that section 132a does
not contain an exclusive remedy clause. Id. at 1154. The court also determined
that the general exclusivity provisions of the state's workers' compensation
code, sections 3600, subdivision (a) and 3602, subdivision (a) did not establish
that section 132a is an exclusive remedy for work-related injury discrimination.
The court reasoned that the plain language of the exclusive remedy provisions
contained in subdivisions (a) of sections 3600 and 3602 apparently limits
those provisions to division 4 remedies. Remedies that the Legislature placed
in other divisions of the Labor Code are simply not subject to the workers' compensation
exclusive remedy provisions. Id. at 759. Section 132a was contained
in division 1 of the Labor Code.
found that terminations in violation of section 132a fall outside of the compensation
bargain because such conduct is 'obnoxious to the interests of the state
and contrary to public policy and sound morality.' Id., quoting, Gantt
v. Sentry Insurance, 825 P.2d 680, 692 (Cal. 1992) Lastly, the court emphasized
the broad scope of the FHA and concluded that it would be inconsistent with the
purposes of that legislation to limit its applicability to disabilities unrelated
to work. See also the following decisions of California courts which discuss Moorpark: Amalgamated
Transit Union, Local 1277 v. Los Angeles County Metropolitan Transportation
Authority, 132 Cal. Rptr.2d 207 (Cal. Ct. App. 2003); Burton v. Ralph
Grocery Company, 2002 WL 31031038 (Cal. Ct. App. 2002) (Not Officially Published); Ruiz
v. Cabrera, 120 Cal. Rptr.2d 320 (Cal. Ct. App. 2002); Badged v. Department
of Rehabilitation, 118 Cal. Rptr.2d 443 (Cal. Ct. App. 2002); and Foreland
v. County of Humboldt, 82 Cal. Rptr.2d 359 (Cal. Ct. App. 1999).
with the reasoning of the California court that it would be inconsistent with
the purposes of the WVHRA to limit its applicability to physical-injury disabilities
unrelated to work. Workers who are discriminated against because of a work- related
injury should not be entitled to less protection under the law than workers disabled
by non-work-related injuries.
v. Richardson-Greenshields Securities, Inc., 552 So.2d 1099 (Fla. 1989),
the Supreme Court of Florida answered in the negative the following certified
question: Whether the workers' compensation statute [of Florida] provides
the exclusive remedy for a claim based on sexual harassment in the workplace. Byrd,
552 So.2d at 1100. In its opinion, the court noted that
compensation is directed essentially at compensating a worker for lost resources
and earnings. This is a vastly different concern than is addressed by the sexual
harassment laws. While workplace injuries rob a person of resources, sexual harassment
robs the person of dignity and self esteem. Workers' compensation addresses
purely economic injury; sexual harassment laws are concerned with a much more
intangible injury to personal rights. To the extent these injuries are separable,
we believe that they both should be, and can be, enforced separately.
Id. at 1104 (footnote omitted). (Emphasis added.)
Supreme Court therefore agrees with the Arkansas court in Davis v. Delmar
Enterprises, Inc., supra, that physical injuries and nonphysical injuries
resulting from disability discrimination can be enforced separately, the first
under the Workers' Compensation Act, the second under the WVHRA.
v. Glazer Steel Corporation, 606 So.2d 518 (La. 1992), plaintiff was not
rehired because of a compensable injury. After having settled a worker's compensation
claim for the physical injury, plaintiff filed a civil claim against his former
employer for discrimination against the handicapped under the Louisiana Civil
Right Act for Handicapped Persons. The trial court dismissed the claim and the
court of appeals affirmed holding that the discrimination claim was as
outgrowth of the industrial accident and thus barred by the exclusive remedy
of workers' compensation. Cox, 606 So.2d at 520. The Louisiana Supreme
Court reversed on the ground that the coverage of the Civil Rights Act is not
within the scope of the workers' compensation law and is not barred by that law. Id. In
a concurring opinion, two of the justices of the court stated that plaintiff's
cause of action for discrimination is not based on the employer's liability for
the injury, but on the employer's liability for subsequent conduct that, although
incidentally related to the on-the-job injury, gave rise to entirely separate
liability under an entirely separate statute. Id. at 521.
v. Bangor Federal Credit Union, 568 A.2d 507 (Me. 1989), plaintiff resigned
from her job because her employer declined to accommodate a work-related
disability. She obtained workers' compensation benefits and thereupon filed
a claim against her former employer under Maine's Human Right Act. The employer
argued the exclusivity of workers' compensation. The Supreme Judicial Court
of Maine sustained her claim, recognizing that the state's Workers' Compensation
Act and Human Rights Act were created for very different purposes and
the injuries recognized under those acts are markedly different. Id. at
508. The court reasoned that [t]he injury that [plaintiff's] complaint
seeks to redress under the Human Rights Act is the indignity of the loss of
an employment opportunity because of her physical handicap. This is an injury
distinct from the physical injury for which she was compensated and concerning
which she signed a release under the Workers' Compensation Act. Id.
v. Michigan Bell Telephone Company and Pacheco v. Clifton, 420 Mich.
308, 362 N. W.2d 642 (Mich. 1985), Boscaglia filed an action against
her former employer alleging violations of Michigan's Fair Employment Practices
Act and Civil Rights Act. She claimed she was demoted as a result of sex
discrimination. Various employment problems allegedly arose after her demotion,
including an accusation by her supervisor of coming to work late. She ultimately
sought psychiatric treatment and quit her job. She filed a claim for workers'
compensation and was awarded benefits for mental and emotional
disability during the pendency of her civil action. A second plaintiff, Pacheco,
alleged various acts of discrimination against him by his employer, including
a suspension, demotion, discharge, and various acts of derision and harassment.
He claimed that the acts of discrimination stemmed from his Spanish-American
heritage. He did not file a workers' compensation claim.
to what the court described as the principal question before it in
the two cases, the court held that the exclusive remedy provision of the
workers' compensation act [does not bar] an action seeking recovery for physical,
mental, or emotional injury resulting from an employer's violation of the fair
employment practices act (FEPA) or the Michigan civil rights act. Boscaglia,
362 N.W.2d at 643. The court in its opinion noted that '[t]he evils at which
the civil rights acts are aimed are different from those at which the workers'
compensation act is directed, Id. at 315; at 645.
The Boscaglia decision
was cited by Justice Miller in his Coffman dissent as authority for his
view that it was not possible to ascribe [to the West Virginia Legislature]
any legislative intent that employees handicapped as a result of occupational
injuries were to be excluded from the coverage of the handicap discrimination
law. Coffman, 182 W.Va. at 86, 386 S.E.2d at 14.
v. F.C. Hayer Co., Inc., 447 N.W.2d 180 (Minn. 1989), the Supreme Court
of Minnesota ruled against an injured employee based upon its perception
of the legislature's intent and the election of the plaintiff to recover
workers' compensation benefits, which the court said barred his recovery
under other theories. The Minnesota Supreme Court said that only one issue
was presented to it in the case, namely, whether the exclusive remedy
provision of the Workers' Compensation Act precludes an action by a disabled
individual against his former employer for disability discrimination under
the Minnesota Human Rights Act where the individual becomes disabled as a
result of work- related injuries and the former employer refuses to rehire
the individual because of the disability. Karst, 447 N.W.2d
at 181. The Court resolved the issue in the affirmative principally on the
ground that it believed the legislature intended the decision of whether
or not to rehire an injured worker and the consequences flowing from that
decision to be within the scope of the Workers' Compensation Act. Id. at
184. The Court concluded its opinion with the statement that in light
of the vital importance of the exclusivity provision to the workers' compensation
system and in the absence of a clear legislative intent to impose the liability
of the Human Rights Act in addition to that under the Workers' Compensation
Act, we decline to interpret the Human Rights Act as applicable here. Id.
v. Porter Paint Company, 575 N. E.2d 428 (Ohio 1991), the Ohio Supreme
Court held that Ohio's workers' compensation statute is not the exclusive
remedy for claims based upon sexual harassment in the workplace. Noting the
scope and purpose of Ohio's workers' compensation statute does not differ
from Florida's, the court cited, quoted, and relied upon the decision of
the Florida Supreme Court in Byrd v. Richardson- Greenshields Securities,
Inc., 552 So.2d 1099 (Fla. 1989). In so doing the court noted workers'
compensation is directed essentially at compensating a worker for lost resources
and earnings. This is a vastly different concern than is addressed by the
sexual harassment laws. While workplace injuries rob a person of resources,
sexual harassment robs the person of dignity and self esteem. Workers' compensation
addresses purely economic injury; sexual harassment laws are concerned with
a much more intangible injury to personal rights. Kerans, 575
N.E.2d at 431, quoting Byrd, 552 So.2d at 1104.
9. Rhode Island
v. State of Rhode Island, Department of Children, Youth and Families,
723 A.2d 287 (R.I. 1999), plaintiff was sexually harassed in her workplace
and was compensated by Rhode Island's workers' compensation system for a
stress injury. She subsequently filed a civil complaint under the state's Fair
Employment Practices Act and the Civil Rights of People with Disabilities statutes.
In holding for plaintiff, the Rhode Island Supreme Court concluded:
the Legislature did not intend the exclusivity provision of the Workers' Compensation
Act to bar the independent statutory claims created by the FEPA or the CRA .
. . the exclusivity clause of the Workers' Compensation Act as interpreted by
defendants could render the FEPA and the CRA nugatory and ineffective . . . under
our interpretation, the exclusivity clause does not bar a claim if to do so would
frustrate a broad, fundamental public policy which fulfills paramount purposes,
such as a claim under the FEPA or the CRA.
Id. at 291-92.
v. Sears, Roebuck & Co., and Beauchamp v. Columbia Lighting, Inc.,
107 Wash.2d 563, 731 P.2d 497 (Wash. 1987), overruled on other grounds by, Phillips
v. City of Seattle, 766 P.2d 1099 (Wash. 1989), two consolidated cases,
Reese suffered a work- related foot injury for which he received workers'
compensation benefits. After being injured, Reese sought to continue work by
performing Grade 12 clerical and light manual work. Reese, 731
P.2d at 499. Sears refused to make any accommodation for Reese's new handicap July 6, 2005 and refused to continue employing Reese absent a full
medical release, which his physician could not give. Thereupon, Sears terminated
Reese's employment. Reese thereupon brought an action for handicap discrimination
under the state's Law Against Discrimination.
filed a workers' compensation claim for work-related chronic bronchitis. The
claim was still in dispute at the time of the Supreme Court of Washington's decision
in his civil action against Columbia. The civil action was based on Columbia's
refusal to accommodate Beauchamp's need to wear a gas mask and its refusal to
allow him to return to work.
and Columbia defended the respective actions against them on the basis of the
exclusivity provision of the state's workers' compensation law. The court in
rejecting the defense stated:
legislative acts is a traditional responsibility of this court. Even if an apparent
conflict existed between [the state's workers' compensation statutes] and the
Law Against Discrimination, we would be obliged to reconcile that conflict and
give effect to both statutory schemes, if this could be achieved without distorting
the statutory language. Here, however, there is no conflict between the two statutory
schemes. Under [the state's workers' compensation statutes], appellant employees
sought recovery for their out of pocket costs (lost wages, medical bills, disability
allowance) attributed to a
specifically defined physical injury or a disease that arose out of their employment.
contrast, under the Law Against Discrimination appellant employees claim they
were injured, not by the physical workplace injuries that gave rise to their
respective disabilities, but by a particular employer action taken months after
they became disabled. It is the employer response to the disabled worker
that is at issue . . . For purposes of the Law Against Discrimination, it does
not matter how the handicap arose; only the employer's response to the handicap
matters . . . Inasmuch as there is no conflict, we need not choose between giving
full effect to either the Law Against Discrimination or the [workers' compensation
statutes'] exclusive remedy provision. The Legislature's intent is upheld
by protecting the integrity of both statutory schemes. No one is excluded from
the protection of the Law Against Discrimination. Under [the workers' compensation
statutes], employees will continue to receive the sure but limited remedy for
their workplace injuries, and employers will remain protected from all court
actions arising out of those injuries.
Id. at 502-03. (internal citations omitted). (Emphasis added.)
The Reese decision was cited by Justice Miller in his Coffman dissent.
v. Labor and Industry Review Commission, 561 N.W.2d 678 (Wis. 1997),
at the outset of its opinion, the Wisconsin Supreme Court stated:
sole issue presented is whether Wis. Stat.§ 102.03(2), the exclusive remedy
provision of the Worker's Compensation Act
(Workers' Compensation Act), bars a claim under the Wisconsin Fair Employment
Act (WFEA), prohibiting discrimination in employment, when the facts that are
the basis for the discrimination claim might also support a worker's compensation
claim. We answer this question in the negative, concluding that the legislature
intended that the Workers' Compensation Act exclusive remedy provision does
not bar a claimant whose claim is covered under the Workers' Compensation Act
from pursuing a claim under the WFEA for discrimination in employment.
Beyers, 561 N.W.2d at 679.
other courts, the Wisconsin court noted [t]he purposes of the two statutes
are very different. The Workers' Compensation Act focuses on the employee and
his or her work-related injury while the WFEA focuses on employer conduct that
undermines equal opportunity in the workplace. Id. at 682. Later
in its opinion, the court made essentially the same point in quoting from the Byrd decision
of the Florida Supreme Court and the Boscaglia decision of the Michigan
Supreme Court. The Wisconsin court thereupon concluded that that the legislature
intended that the Workers' Compensation Act exclusive remedy provision does not
bar a complainant whose claim is covered under the Workers' Compensation Act
from pursuing a discrimination in employment claim under the WVEA. Id.
Harmonizing the Policies Respecting Workers' Compensation and Human Rights
State's Workers' Compensation Law, W. Va. Code Chapter 23, and The West
Virginia Human Rights Act, W. Va. Code Chapter 5, Article 11, set forth
two significant legislative public polices. We must therefore endeavor to uphold
the Legislature's intent by protecting the integrity of both statutory schemes. 'Consistency
in statutes is of prime importance, and, in the absence of a showing to the
contrary, all laws are presumed to be consistent with each other. Where it
is possible to do so, it is the duty of the courts, in the construction of
statutes, to harmonize and reconcile laws, and to adopt that construction of
a statutory provision which harmonizes and reconciles it with other statutory
provisions * * *' 50 Am. Jur., Statutes, Section 363 and citing 82 C.J.S.,
Statutes, § 365, as well as State ex rel. Revercomb v. O'Brien,
91 S.E.2d 865; State ex rel. Thompson v. Morton,
W. Va., 84 S.E.2d
791; State v. Snyder
, 89 W. Va. 96, 108 S.E.588; Farmers & Merchants
Bank of Reedsville v. Kingwood National Bank
, 85 W. Va. 371, 101 S.E.
734. State ex rel. Pinson v. Varney
, 142 W. Va. 105, 109-10,
96 S.E.2d 72, 75 (1956). The second sentence in Pinson
was quoted with approval in State v. Williams
, 196 W. Va.
639, 641, 474 S.E.2d 569, 572 (1996), to which quoted sentence the Williams
added the words to give full force and effect to each, if possible. (See
Messer's cause of action for discrimination is not based on her employer's liability
for a compensable work-related injury within the meaning of the Workers' Compensation
Act. Rather, it is based on Appellees' alleged subsequent discriminatory conduct
that, although incidentally related to the compensable work-related injury, gives
rise to an entirely separate liability under the WVHRA. Any apparent conflict
between West Virginia's Workers' Compensation Act and the WVHRA that may arise
can be harmonized by recognizing, as many courts have done, that the rights and
remedies of the Acts are considerably different and serve to fulfill different
purposes. Thus we hold that the
first of the two Acts is directed at compensating an employee who has suffered
an injury or disease in the course of and resulting from his/her employment
and at shielding the employer from liability outside the workers' compensation
system for such injury. The second is directed towards actions of an employer
in discriminating against an employee because of his or her disability. Since
the Acts seek to remedy two separate harms, physical injury and discrimination,
no conflict exists between the two Acts and it would be inconsistent with the
purposes of the West Virginia Human Rights Act, W. Va. Code §5-11-1 et
, to limit its applicability to physical - injury disabilities unrelated
to work. The injury that Messer seeks to redress under the WVHRA is the indignity
of the alleged discrimination against her because of her disability.
which Appellees would attach to the exclusivity clause would render the WVHRA
ineffective and useless to a large group of West Virginians who have compensable
work-related injuries. Such an interpretation would frustrate a broad, fundamental
public policy which fulfills paramount purposes and would effectively relegate
one class of employee to an inferior status compared to another class of employee
who have injuries or disabilities which are not work-related. Being enacted later
in time to the Workers' Compensation Act, the WVHRA makes no distinction between
classes of employees to which civil rights protection is extended. Had the Legislature
desired to treat employees with work-related disabilities differently, it would
have done so within the
WVHRA. It did not do so. That the Workers' Compensation Act itself excludes
from its immunities injuries caused by certain acts, including deliberate intent
acts at W. Va. Code § 23-4-2 and discriminatory acts at W. Va. Code § 23-5A-1, et
., provides a further measure of assurance that the Legislature intended
employees such as Messer to be protected by both
Messer has alleged essentially two separate types of injuries. To the extent
that a worker's injuries are of the type cognizable under W. Va. Code § 23-4-1
for which workers' compensation benefits may be sought, including aggravations
and physical and non-physical conditions which flow directly and uniquely from
such injury, we find that the exclusivity provision of the Workers' Compensation
Act prohibits recovery outside of the mechanisms set forth in the West Virginia
Workers' Compensation Act. To the extent that a worker's injuries are directly
and proximately caused by the unlawful discriminatory acts of his or her employer,
and are of a type not otherwise recoverable under the Workers' Compensation Act,
we hold that the exclusivity provision of the Workers' Compensation Act is inapplicable
as the Legislature did not intend such injuries to fall within the types of injuries
for which the Workers' Compensation Act was established. Thus, w
an aggravation or worsening of an employee's physical injury by the conduct of
employer may be compensable under and thus subject to, the exclusive remedy
provided by the Workers' Compensation Act, an employee's claim against an employer
for violation of The West Virginia Human Rights Act and resulting non-physical
injuries, such as mental and emotional distress and anguish, directly and proximately
resulting from such violation and not associated with the physical injury or
the aggravation or worsening thereof are not barred by the exclusivity provisions
of the Workers Compensation Act, W. Va Code § 23-2-6 (2003) and -6a
(1949). Such violation and the resulting nonphysical injuries are not within
the scope of the Workers' Compensation Act. Rather, they are separate liabilities
from the physical injury and were created by The West Virginia Human Rights
Act, an entirely different statute from the Workers' Compensation Act with
different policy objectives. (See
the reasons stated above, the circuit court's order of August 18, 2003, in
its Civil Action No. 02-C-0635, is affirmed, in part, reversed, in part, and remanded to the
circuit court to allow it to proceed, consistent with this opinion, without
being barred by the exclusivity
provisions of the Workers' Compensation Act. This Court expresses no opinion
as to whether Appellant's complaint states a cause of action against Appellees
for violation of The West Virginia Human Rights Act.
Affirmed, in part,
Reversed, in part and Remanded
are apparently based upon Exhibit 1 to Messer's Petition for Appeal. It is
a copy of an EEOC Determination letter, dated September 12, 2002,
addressed to Messer and Appellees from Eugene V. Nelson, Area Director, EEOC,
Pittsburgh Area Office, in regard to Charge Number: 172-A-11170. The Determination letter
contains the following information about Messer's physical condition: Charging
Party, a Nurse Anesthetist, alleged that the Respondent [Appellees] discriminated
against her because of her disability by failing to engage in the interactive
process for a reasonable
accommodation since August 8, 1997, and as a result, it became medically necessary
for her to return to Worker's Compensation in October, 2000. Appellees'
statement that [i]n October of 2000, Appellant re-opened her previous
worker's compensation claim therefore finds some support in the statement
in the Determination letter. The Determination letter
makes one finding and two determinations, namely: that Respondent failed
to adhere to the medical restrictions requested for Charging Party; that the
evidence obtained during the investigation does establish a violation of the
Americans with Disabilities Act (ADA) with respect to the reasonable accommodation
matter; and that the evidence obtained during the investigation
does not establish a violation of the American with Disabilities Act (ADA)
with respect to the benefits and compensation matter.
W. Va. Code §23-2-6
(2003), in relevant part, provides:
subject to this chapter who subscribes and pays into the workers'
compensation fund the premiums provided by this chapter or who elects to make
direct payments of compensation as provided in this section is not liable
to respond in damages at common law or by statute for the injury or death of
any employee, however occurring
, after so subscribing or electing, and during
any period in which the employer is not in
default in the payment of premiums or direct payments and has complied fully
with all other provisions of this chapter.
(Emphasis added). W. Va. Code § 23-2-6a (1949), in relevant part,
immunity from liability set out in the preceding section shall extend to every
officer, manager, agent, representative or employee of such employer when he
is acting in furtherance of the employer's business and does not inflict an injury
with deliberate intention.
Deborah A. Ballam, The
Workers' Compensation Exclusivity Doctrine: A Threat to Workers' Rights Under
State Employment Discrimination Statutes,
American Business Law Journal,
95, 102-106, (Spring, 1989), describes the exclusivity doctrine as being
the Sacred Cow of Workers' Compensation stating that most
courts and state legislatures have vigorously protected the concept of employer
immunity by aggressively promoting the exclusivity doctrine, even in cases
where the injury did not arise from normal incidents of the employment. Courts
have protected the doctrine by refusing, for the most part, to allow judicially
created exceptions, while the legislatures have protected the doctrine by
reacting with legislation repealing the few efforts the courts have made
to reduce its scope.
Messer contends in her
reply brief that West Virginia Code §§ 23-4-2 ('Deliberate
Intention') has no application to a WVHRA Claim citing Miller v. City
197 W. Va. 403, 475 S.E.2d 495 (1996). The Miller
however, did not involve a claim under the WVHRA. It was a deliberate
intention case wherein Miller alleged that her employer had engaged in
outrageous conduct that intentionally inflicted emotional distress on her.
The Court affirmed the circuit court's summary judgment in favor of the hospital
because Miller had failed to offer concrete evidence that the hospital's acts
violated a specific safety statute or standard as required by W. Va. Code §23-4-2
(c)(2)(ii)(C) (1994). In footnote 5 immediately following the Court's affirmation
of the circuit court's summary judgment, the Court stated: Although Ms.
Miller's claim does not fall within the 'deliberate intention' exception, because
her claim is work-related, any remedy she may have is set forth in the Workers'
Compensation Act, W. Va. Code §23-1-1 (1995) et seq. This opinion
addresses neither the merits of her claim, nor its compensability under the
Workers Compensation Act. Miller
, 197 W.Va. at 410, 475 S.E.2d
W. Va. Code §23-5A-1
(1978), in relevant part, provides:
employer shall discriminate in any manner against any of his present or former
employees because of such present or former employee's receipt of or attempt
to receive benefits under this chapter.
W. Va. Code § 23-5A-2 (1982), in relevant part, provides:
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 . . . or cause coverage provided to be decreased during the entire period
for which that employee . . . is claiming or is receiving benefits under this
chapter for a temporary disability. . . . This section provides a private
remedy for the employee
. . . .
(Emphasis added.) W. Va. Code § 23-5A-3 (1990), in relevant part,
shall be a discriminatory practice within the meaning of section one [§ 23-5A-1]
of this article to terminate an injured employee while the injured employee is
off work due to a compensable injury . . . unless the injured employee has committed
a separate dischargeable offense. . . . It shall be a discriminatory practice
. . . for an employer to fail to reinstate an employee who has sustained a compensable
injury . . . . Any civil action brought under this section
shall be subject
to [collective bargaining agreements and related exceptions].
This section of the Code
was enacted in 1993 to overturn Breeden v. Workmen's Compensation Comm'r
et al., 168 W. Va. 573, 285 S.E.2d 398 (1981), wherein the Court created
a workers' compensation compensable injury called a mental-mental claim.
In that case, an employee filed a workers' compensation claim for a mental
disability which she suffered after being subjected to harassment from her
immediate supervisor. The Court held that an employee who sustains mental
or emotional injury which occurs as a result of continuous and intentional
harassment and humiliation from her supervisor extending over a period of time
has suffered a personal injury as required by [the workers' compensation statute]. See
Robin Jean Davis and Louis J. Palmer, Jr., Workers' Compensation Litigation
in West Virginia: Assessing the Impact of the Rule of Liberality and the Need
for Fiscal Reform
, 107 W. Va. L. Rev. 43, 79-80 (Fall 2004).
In Syllabus points 1 and
2 to Price v. Boone County Ambulance Authority
, 175 W. Va. 676,
337 S.E.2d 913 (1985), this Court interpreted W. Va. Code § 5-11-13
(1985) and declared (1) that [a] plaintiff may, as an alternative to
filing a complaint with the Human Rights Commission, initiate an action in
circuit court to enforce rights granted by the West Virginia Human Rights Act, and
(2) [t]he remedies available in circuit court for violation of W. Va.
Code § 5-11-9 are those set out in W. Va. Code § 5-11-13(c). W. Va.
Code 5-11- 13 (c) provides:
any action filed under this section, if the court finds that the respondent has
engaged in or is engaging in an unlawful discriminatory practice charged in the
complaint, the court shall enjoin the respondent from engaging in such unlawful
discriminatory practice and order affirmative action which may include, but is
not limited to, reinstatement or hiring of employees, granting of back pay or
any other legal or equitable relief as the court deems appropriate. In actions
brought under this section, the court in its discretion may award all or a portion
of the costs of litigation, including reasonable attorney fees and witness fees,
to the complainant.
W. Va. Code § 5-11-9
shall be an unlawful discriminatory practice, unless based upon a bona fide
occupational qualification, or except where based upon applicable security
regulations established by the United States or the state of West Virginia
or its agencies or political subdivisions:
For any employer to discriminate against an
individual with respect to compensation, hire, tenure, terms, conditions or
privileges of employment if the individual is able and competent to perform
the services required even if such individual is blind or disabled: [there
follows a proviso which is not relevant to the issues on appeal].
W. Va. Code § 5-11-3(m)
term disability means: (1) A mental or physical impairment which
substantially limits one or more of such person's major life activities. The
term major life activities includes functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning and working; (2) A record of such impairment; or (3) Being regarded
as having such an impairment. For the purposes of this article, this term [disability]
does not include persons whose current use of or addiction to alcohol or drugs
prevents such persons from performing the duties of the job in question or whose
employment, by reason of such current alcohol or drug abuse, would constitute
a direct threat to property or the safety of others.
See also Keatley
v. Mercer County Board of Education
, 200 W. Va. 487, 495, 490 S.E.2d
306, 314, fn 15 (1997)(quoting Williams
); In re Sorsby
W. Va. 708,713, 559 S.E.2d 45, 50 (W. Va. 2001)(Syl. Pt. 5, Lawson
v. County Comm'n
, 199 W. Va. 77, 483 S.E.2d 77(1996)(per curium)
which stated 'where two statutes are in apparent conflict, courts must, if
, construe them so as to give effect to each' Syllabus
Point 4, State ex rel. Graney v. Sims
, 144 W. Va. 72, 105 S.E.2d
886 (1958).'); Carvey v. West Virginia State Bd. of Educ.,
( W. Va. 1999) ( Where it is possible to do so, it
is the duty of the courts, in the construction of statutes, to harmonize
and reconcile laws, and to adopt that construction of a statutory provision
which harmonizes and reconciles it with other statutory provisions). Accord
v. County Com'n. of Mercer County
, 483 S.E.2d 77 (W. Va. 1996); United
Hosp. Center, Inc. v. Richardson,
757 F.2d 1445 (4th
1985) ('Should there be some inconsistency between the two statutes,
or sections of a single statute, courts, in construing the statutes, so far
as possible, should seek to steer a 'middle course that vitiates neither
provision but implements to the fullest extent possible the directives of
each.' Citizens to Save Spencer County v. EPA
, 600 F.2d 844, 871 D.C.Cir.
We encourage the Legislature
to consider the exclusivity provision with respect to the WVHRA further. We
believe that W. Va. Code § 23-5A-1, et seq
., may provide a statutory
vehicle to do so.
In so holding, we pause
to recognize the wisdom reflected some seventeen years ago by Justice Miller
in his dissent in Coffman, wherein he observed that workers' compensation
benefits relate to employee's injuries and have nothing to do with his status
under the handicap law. This latter provision is designed to prevent discrimination
against a person who has a handicap. Coffman, at 13-14, 85-86. Nor, he
wrote, is it possible to ascribe any legislative intent that employees
handicapped as a result of occupational injuries were to be excluded from coverage
of the handicap discrimination law. Id., at 14, 86.