Bias v. Eastern Associated Coal Corp.

• Decision Date: 08 June 2006
• Docket Number: No. 32778.,32778.
• Court: West Virginia Supreme Court
• Parties: Berchie Eugene BIAS and Patricia Carol Bias, Plaintiffs, v. EASTERN ASSOCIATED COAL CORPORATION, Defendant.

640 S.E.2d 540

Berchie Eugene BIAS and Patricia Carol Bias, Plaintiffs, v. EASTERN ASSOCIATED COAL CORPORATION, Defendant.

No. 32778.

Supreme Court of Appeals of West Virginia.

Submitted: January 10, 2005.

Decided: June 8, 2006.

Concurring and Dissenting Opinion of Justice Albright June 23, 2006.

Dissenting Opinion of Justice Starcher July 13, 2006.

Concurring Opinion of Justice Davis July 18, 2006.

Syllabus by the Court

1. "`The appellate standard of review of questions of law answered and certified by a circuit court is de novo.' Syllabus point 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996)." Syllabus point 2, Keplinger v. Virginia Elec. & Power Co., 208 W.Va. 11, 537 S.E.2d 632 (2000).

2. An employer who is otherwise entitled to the immunity provided by W.Va.Code § 23-2-6 (1991) may lose that immunity in only one of three ways: (1) by defaulting in payments required by the Workers' Compensation Act or otherwise failing to be in compliance with the Act; (2) by acting with "deliberate intention" to cause an employee's injury as set forth in W.Va.Code § 23-4-2(d); or (3) in such other circumstances where the Legislature has by statute expressly provided an employee a private remedy outside the workers' compensation system.

3. An employee who is precluded by W.Va.Code § 23-4-1f (1993) from receiving workers' compensation benefits for a mental injury without physical manifestation cannot, because of the immunity afforded employers by W.Va.Code § 23-2-6 (1991), maintain a common law negligence action against his employer for such injury.

Norman W. White, Brian L. Ooten, Shaffer & Shaffer, P.L.L.C., Madison, for Plaintiffs.

Ancil G. Ramey, H. Toney Stroud, Steptoe & Johnson, P.L.L.C., Charleston, for Defendant.

BENJAMIN, Justice:

The Circuit Court of Boone County has certified to this Court the following question of law:

Whether an employee who sustains a mental injury without physical manifestation and, as such, is precluded from receiving Workers' Compensation benefits pursuant to West Virginia Code § 23-4-1f, can maintain a common law negligence action against his employer, despite the immunity afforded by West Virginia Code § 23-2-6.

We answer the question in the negative.

I. FACTS AND PROCEDURAL HISTORY

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 (1½).

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" injuries¹ 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.

II. STANDARD OF REVIEW

It is well-settled law that "`[t]he appellate standard of review of questions of law answered and certified by a circuit court is de novo.' Syllabus point 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996)." Syl. Pt. 2, Keplinger v. Virginia Elec. & Power Co., 208 W.Va. 11, 537 S.E.2d 632 (2000). Accord Syl. Pt. 1, Perito v. County of Brooke, 215 W.Va. 178, 597 S.E.2d 311 (2004); Syl. Pt. 2, Charter Communications v. Community Antenna Serv. Inc., 211 W.Va. 71, 561 S.E.2d 793 (2002). Accordingly, we proceed to conduct a plenary review of the certified question.

III. DISCUSSION

The parties agree with the acknowledgment in the certified question that W.Va. Code § 23-4-1f (1993) precludes an employee such as the plaintiff from receiving workers' compensation benefits for a so-called "mental—mental injury", i.e., a mental injury with a non-physical cause. They disagree as to whether W.Va.Code § 23-2-6 (1991) immunizes an employer against a civil negligence action brought by an employee who alleges a "mental—mental injury" which was incurred in the workplace. Plaintiff contends that the employer-immunity provision of W. Va.Code § 23-2-6 applies only when a workplace injury is compensable and benefits may be recoverable under the Workers' Compensation Act. Eastern, however, argues that W.Va.Code §§ 23-2-6 and 23-4-1f fully immunize it from all such workers' compensation claims and from all common law causes of action for such non-compensable "mental— mental" injuries, including, as here, a cause of action for negligent infliction of emotional distress where that claimed work-related injury is not compensable by virtue of W.Va. Code § 23-4-1f.

A. Non-Compensable Psychiatric Injuries and Disease

We commence with a discussion of W.Va. Code § 23-4-1f (1993), in part, because Eastern contends that in addition to making so-called "mental-mental" claims non-compensable under the Workers' Compensation Act, the Legislature also evidenced an intent in enacting that section to preclude employees from pursuing common law actions for such injuries. We disagree and conclude that W.Va.Code § 23-4-1f (1993) cannot be read so broadly.

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.)."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...