| Norman W. White
Brian L. Ooten
Shaffer & Shaffer, PLLC
Attorneys for Plaintiffs
| Ancil G. Ramey
H. Toney Stroud
Steptoe & Johnson, PLLC
Attorneys for Defendant
JUSTICE BENJAMIN delivered the Opinion of the Court.
CHIEF JUSTICE DAVIS and JUSTICE MAYNARD concur and reserve the right to file a concurring opinion.
JUSTICE ALBRIGHT concurs in part, dissents in part and reserves the right to file a separate opinion.
JUSTICE STARCHER dissents and reserves the right to file a dissenting opinion.
The pertinent facts related to the claims of plaintiff, Berchie Eugene Bias, are
undisputed and are set forth in the circuit court's certification order:
This action arises as the result of an incident that occurred on September 18, 1999, at the Harris #1 coal mine located in Boone County, West Virginia, owned and operated by the defendant. On this date, plaintiff, Berchie Bias and two other co-workers were assigned to install a belt take-up in a particular section of the mine. At approximately 10:00 a.m., the three workers observed a cloud of smoke approaching them and immediately called their supervisor for help from the emergency phone in the jeep they were using. Unbeknownst to the plaintiff and his co-workers at the time, the smoke was the result of belt slippage caused by a slip switch that had been short circuited. The defendant was issued a Federal citation for the short circuited switch. This slip switch, if operable, would shut down the belt in the event of belt slippage to prevent smoking or a possible fire.
Plaintiff and his co-workers were told by the supervisor to shut off the main belt, which was about 100 feet away through a cross cut. While his co-workers attempted to find fresh air, plaintiff went to shut down the main belt. After shutting down the belt, plaintiff indicated that thick smoke had gotten between him and the area in which he had been walking in, and therefore, he did not know where the escape ways were located. Plaintiff went through a door and into a return entry in the opposite direction from the smoke. Plaintiff alleges he knew the return would eventually have smoke in it because the ventilation system was not working properly and he was very afraid. Plaintiff walked down the return about 100 feet and then cut back towards the area in which he had been working in, and eventually ran into two mechanics who began walking him out of the mine. The three eventually ran into a jeep and were transported to the mouth of the entry. Plaintiff alleges he was trapped in the smoke for approximately an hour and a half (1 ½).
Plaintiff worked for the next two days and alleges on the third day he became very distraught. Plaintiff reported he was in a poor emotional state, having slept very little due to nightmares about being trapped in the mine. Plaintiff was transported to Charleston Area Medical Center and then transferred to Highlands Hospital, where he spent 9 days. Plaintiff subsequently brought this action, alleging that as a result of the aforementioned incident, he suffered various serious emotional injuries.
Plaintiff alleges that his employer, Eastern Associated Coal Company (Eastern), is liable for his emotional injuries under the deliberate intention exception to the West Virginia Workers' Compensation Act, W.Va. Code § 23-4-2 (1994), and also under the common law for its intentional and negligent infliction of such emotional injuries. In support of his motion for a pre-trial ruling that his common law negligence action can be maintained, plaintiff argues that because W.Va. Code § 23-4-1f (1993) precludes him from recovering compensation for his claimed mental-mental injuries (See footnote 1) under the Workers' Compensation Act, the employer immunity provision of the Act, found at W.Va. Code § 23- 2-6 (1991), does not apply. Eastern disagrees, contending that the immunity provision bars the plaintiff's civil negligence action for emotional distress despite there being no compensation available for the claimed injury under the Act.
In its Certification Order entered on February 17, 2004, the circuit court found for purposes of the order that plaintiff can bring a common law negligence action against his employer. The court thereupon ordered that the question referenced above, together with the court's ruling regarding the question, be certified to this Court pursuant to Rule 13 of the West Virginia Rules of Appellate Procedure.
W.Va. Code § 23-4-1f was enacted as a part of Chapter 171, Acts, Regular
Session, 1993, that was approved by the legislature on April 16, 1993. It provides:
For 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.
The 1993 enactment of W.Va. Code § 23-4-1f was a legislative countermand of this Court's decision in Breeden v. Workmen's Compensation Commissioner, 168 W.Va. 573, 285 S.E.2d 398 (1981), which had held as stated in Syllabus Point 2: 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 W.Va. Code § 23-4-1 (1981 Replacement Vol.). (See footnote 2) Despite its repudiation by the Legislature, Breeden is noteworthy in two respects. First, it recognized that an emotional injury is a personal injury for purposes of the Workers' Compensation Act. Second, it recognized that the infliction of emotional distress may be a compensable injury even though not accompanied by a physical injury, despite the fact that at the time of the Breeden decision, in 1981, it was the general rule that there was no common law cause of action in this State for the negligent infliction of emotional distress absent a physical injury. Breeden, 168 W.Va. at 650-654, 285 S.E.2d at 635-639.
Neither the title of the bill in which W. Va. Code § 23-4-1f was enacted, nor the text of that Code section indicates any expressed intent on the part of the legislature to immunize employers from a common law action which may have existed at the time of its passage for negligent infliction of emotional distress upon an employee when not accompanied by a physical injury. Eleven years following Breeden, but before the passage of W.Va. Code § 23-4-1f, our common-law departed from the requirement that emotional claims be manifested, at least in part, by demonstrable physical injuries. In Marlin we acknowledged that Ricottilli v. Summersville Memorial Hospital, 188 W.Va. 674, 425 S.E.2d 629 (1992), which this Court decided on December 18, 1992, five months before the enactment of W.Va. Code § 23-4-1f (1993), represent[ed] a transition from our earlier law requiring that a claim for negligent infliction of emotional distress be accompanied by demonstrable physical injuries and a progression by this Court away from the requirement of a precedent physical injury in order to recover in cases involving negligent infliction of emotional distress. Marlin, 198 W.Va. at 651-2, 482 S.E.2d at 636-7. At the time of the passage of W.Va. Code § 23-4-1f (1993) on April 16, 1993, the Legislature not only had notice of, but, we believe, was fully aware of this Court's decision in Ricottilli and its transition from the general rule that a negligent infliction of emotional distress claim must be manifested by a physical injury. In view of this notice and awareness, we conclude that had the Legislature intended W.Va. Code § 23-4-1f to preclude any claims other than workers' compensation claims, the Legislature would have done so in clear language.
Consideration of whether an employee who sustains a mental injury without
physical manifestation may maintain a common law negligence action against his employer
necessarily must be resolved by application of W.Va. Code § 23-2-6 (1991). This Code
section provides in relevant part that [a]ny employer subject to this chapter who shall
subscribe and pay into the workers' compensation fund the premiums provided by this
chapter or who shall elect to make direct payments of compensation as herein provided shall
not be liable to respond in damages at common law or by statute for the injury or death of any
employee, however occurring. This immunity language was a part of the original workers'
compensation law, Acts 1913, Ch.10, § 22 and has not been substantively changed since
1913 in the various re-enactments of the Code section in which it appears.
The Legislature intended for W.Va. Code § 23-2-6 (1991) to provide qualifying employers sweeping immunity from common-law tort liability for negligently inflicted injuries. As this Court succinctly stated in State ex rel. Frazier v. Hrko, 203 W.Va. 652, 659, 510 S.E.2d 486, 493 (1998), [w]hen an employer subscribes to and pays premiums into the Fund, and complies with all other requirements 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 . This immunity is not easily forfeited. As suggested in Smith v. Monsanto Company, 822 F.Supp. 327, 330 (S.D. W.Va. 1992), an employer who is otherwise entitled to immunity under § 23-2-6 may lose that 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, see W.Va. Code § 23-2-8, or (2) by deliberately intending to produce injury or death to the employee. (See footnote 4) (Citation omitted.)
While exceptions to the immunity provided by W.Va. Code § 23-2-6 exist, the Legislature has been extremely restrictive in creating them. (See footnote 5) An employer who defaults on its payments as required by the Workers Compensation Act or is otherwise out of compliance with the Act has no immunity according to the plain language of W.Va. Code § 23-2-6. An employer is likewise not immune from lawsuit for workplace injuries if the employer acted with deliberate intention as provided in W.Va. Code § 23-4-2. An employer is also not immune from liability for certain other intentional actions, such as discriminatory practices as provided in W.Va. Code § 23-5A-1 et seq. and in The West Virginia Human Rights Act, W.Va. Code § 5-11-1 et seq. (See footnote 6)
Plaintiff argues that our decision in Jones v. Rinehart & Dennis Company, Inc.,
113 W.Va. 414, 168 S.E. 482 (1933), supports his position that because his claimed mental
injury without physical manifestation is not compensable by reason of W.Va. Code § 23-4-
1F, his employer should not be immune to a common law negligence action for that injury
under W.Va. Code § 23-2-6. Specifically, plaintiff contends that in Jones, which considered
the disease of silicosis, this Court created another exception to W.Va. Code § 23-2-6 (1923)
for injuries such as he claims here. We disagree. Even if Jones had not been legislatively
nullified by subsequent statutory enactments, plaintiff's injury claim herein is not of a type
similar to the disease claim present in Jones. (See footnote 7)
In Jones, this Court, in 1933, distinguished between work-related harm which was caused by a definite, isolated, fortuitous occurrence, for which the workers' compensation system had originally been enacted, (See footnote 8) and a disease such as silicosis, which was caused by exposure to silica extending through a long period of employment, which was not of a type originally cognizable under W.Va. Code § 23-4-1. In view of the Legislature's original decision for the workers' compensation system, by way of W.Va. Code § 23-4-1 (1923), to recognize only work-related injuries and diseases which were caused by definite, isolated fortuitous events, the Jones Court concluded that the immunity provisions of W.Va. Code § 23-2-6 were only applicable to such injuries and diseases, since they were all that was then cognizable under W.Va. Code § 23-4-1 (1923). Since silicosis was not a disease which was then cognizable under W.Va. Code § 23-4-1 (1923), the Jones Court held in its Syllabus Point 4 that employers are not exempt from liability for non-compensable disease (caused by negligence of the employer) or death resulting from such disease.
The holding of the Jones Court was effectively annulled in 1945, by the Legislature's subsequent decision to amend W.Va. Code § 23-4-1 to recognize the disease of silicosis. Four years later, in 1949, the Legislature expanded W.Va. Code § 23-4-1 to recognize other occupational diseases which might occur in the workplace so long as the injury or disease occurred both in the course of and resulting from a claimant's employment. As we stated in Powell v. State Workers' Comp. Comm'r. 166 W.Va. 327, 273 S.E.2d 832 (1980), occupational diseases other than those specifically listed have been covered by W.Va. Code § 23-4-1 since it was amended by the Legislature in 1949. See, also, Miles v. State Compensation Comm'r., 136 W.Va. 183, 67 S.E.2d 34 (1951). Thus, the reasoning from Jones which the plaintiff urges upon us was legislatively nullified.
Even if such reasoning were still valid, the so-called mental-mental injury
at issue herein, occurring within a period of 90 minutes or so, was not at all similar to the
slowly developing kind of disease at issue in Jones. Rather, it was apparently caused by a
definite, isolated, fortuitous, occurrence when plaintiff was trapped in a smoky
environment within a mine. As such, the type of claim at issue here is much more like that
of a typical injury claim, than that in the Jones case. The employer immunity provisions of
W.Va. Code § 23-2-6 always have been applicable to such claimed injuries.
Nor is plaintiff's attempt to invoke Jones helped by Breeden. In its Syllabus Point 2, the Breeden Court held that a mental or emotional injury is a personal injury for purposes of the Workers' Compensation Act. Breeden therefore removes any doubt that, as of 1983 when Breeden was decided, psychological (or mental) claims were of a type cognizable under W.Va. Code § 23-4-1. (See footnote 9) In later enacting W.Va. Code § 23-4-1f, the Legislature did not eliminate psychological (or mental) claims from the workers' compensation system. It simply forbid making such claims compensable and paying benefits when no physical harm was manifested. The type of injury present in Jones and the rationale used by the Court in Jones simply is not present here. By its terms, the employer immunity provision of W.Va. Code § 23-2-6 is applicable to such an injury and has been so since the Workers' Compensation Act was enacted.