No.33210 - SER Donald Darling v. Darrell V. McGraw, Attorney General of the State of
West Virginia, and State of West Virginia Board of Risk and Insurance
Albright, Justice, concurring, in part, and dissenting, in part:
While I concur with the majority's conclusion that Mr. Darling has failed to
demonstrate the requirements for the issuance of a writ of mandamus, I dissent to emphasize,
as I previously articulated in my partial dissent to Bias v. Eastern Associated Coal Corp.,
W.Va. 190, 640 S.E.2d 540 (2006) (Albright, J., concurring, in part, dissenting, in part),
that the majority is wrong in concluding that West Virginia Code § 23-2-6 (2003) (Repl.
Vol. 2005) bars a common law negligence action for a mental-mental claim. (See footnote 1)
convinced then and am even more convinced now that the existence of a qualifying
compensable injury within the meaning of workers' compensation law is coterminous with
the extension of immunity to employers. Bias,
220 W.Va. at __, 640 S.E.2d at 550
(Albright, J., concurring, in part, dissenting, in part). Because there is no question that a
mental-mental claim is expressly excluded by the terms of West Virginia Code § 23-4-1(f)
(1993) (Repl. Vol. 2005) from the workers' compensation schema, I remain resolute in my
opinion that employers do not have immunity from common law claims which arise from
If you accept that immunity from common-law claims is nonexistent for claims
that are not within the scope of workers' compensation law, logic requires that employees
be permitted to seek recovery for mental-mental claims from their employers under
common law precepts. As I discussed in my partial dissent to Bias,
when the quid pro quo
nature of workers' compensation has been shown to be illusory, as in the case of mental-
mental claims, the rationale for extending immunity to employers for such work-related
claims is similarly nonexistent. A well-recognized commentator has observed that it ought
logically to follow that the employer should be spared damage liability only when
compensation liability has actually been provided in its place, or, to state the matter from the
employee's point of view, rights of action for damages should not be deemed taken away
except when something of value has been put in their place. Arthur Larson & Lex K.
Larson, Larson's Workers' Compensation Law
§ 100.04, 100-23 (2006); see Williams v.
Hillsborough County School Bd.
, 389 So.2d 1218, 1219 (Fla. 1st
Dist. App. 1980) (holding
that employee whose work-related neurosis was not compensable under workers'
compensation act due to lack of physical injury could seek common law remedies); Maney
v. Louisiana Pacific Corp.
, 15 P.3d 962, 966 (Mont. 2000) (recognizing that [i]f an
employee's injury is not compensable under the [Workers' Compensation] Act, the
exclusive remedy provision does not preclude a tort action against the employer); Smothers
v. Gresham Transfer, Inc.,
23 P.3d 333 (Or. 2001) (rejecting exclusive remedy provision of
workers' compensation act as unconstitutional on grounds that there was no quid pro quo
within statutory system to counter loss of right to sue); Nassa v. Hook-SupeRx, Inc.,
A.2d 368, 375 (R.I. 2002) (holding that the workers' compensation exclusive-remedy
provision bars an independent lawsuit only when an employee suffers 'an injury' for which
compensation is available).
Firmly believing that the benefit of the bargain analysis which underlies the
establishment of a workers' compensation system completely fails when recovery is
expressly denied by statute for an employment-related injury, I reaffirm my opinion that the
result reached by the majority in Bias
should be overruled. See
W.Va. Code § 23-4-1(f).
I am authorized to state that Justice Starcher joins in this separate opinion.
While Mr. Darling is adamant that the mandamus petition he filed with this
Court is not predicated in common law (he characterizes it as solely statutory in nature), the
essence of a mental-mental claim that falls outside the statutory parameters of workers'
compensation is clearly negligence.