Deller v. Naymick, No. CC950

CourtSupreme Court of West Virginia
Writing for the CourtMcHUGH; McGRAW
PartiesFrederick H. DELLER and Jerri Deller v. George NAYMICK, M.D.
Docket NumberNo. CC950
Decision Date21 November 1985

Page 73

342 S.E.2d 73
176 W.Va. 108
Frederick H. DELLER and Jerri Deller
v.
George NAYMICK, M.D.
No. CC950.
Supreme Court of Appeals of
West Virginia.
Nov. 21, 1985.
Dissenting Opinion April 4, 1986.

Page 74

[176 W.Va. 109] Syllabus by the Court

1. A professional person is an "employee" for workers' compensation purposes when he or she provides his or her services "to an employer largely to the exclusion of otherwise special employment, for a certain fixed and determined period, at a regular salary, and hold[s] [himself or herself] in readiness at all times to serve [his or her] employer[.]" West Virginia Coal & Coke Corp. v. State Compensation Commissioner, 116 W.Va. 701, 704, 182 S.E. 826, 828 (1935).

2. "If a doctor, who is employed by a subscriber to the Workmen's [Workers'] Compensation Fund to render medical and surgical aid and treatment to its employees, is so unskil[l]ful and negligent in his treatment of an employee, injured in the course of and resulting from his employment, that the injury is aggravated thereby, such action on the part of the doctor comes within the [Workers'] Compensation Act. Therefore, under such a state of facts, an action is not maintainable against the doctor." Hinkelman v. Wheeling Steel Corp., 114 W.Va. 269, 171 S.E. 538 (1933).

3. The so-called "dual capacity" or "dual persona " doctrine does not except a full-time, salaried doctor employed by a subscriber to the Workers' Compensation Fund or by a self-insured employer from the immunity provided by W.Va.Code, 23-2-6a [1949].

4. The immunity from tort liability provided by W.Va.Code, 23-2-6a [1949] is not waived to the extent that liability insurance coverage is available.

Barry M. Hill, Zagulaa & Hill, Weirton, for appellants.

Carl N. Frankovitch, Frankovitch & Anetakis, Weirton, William C. Gallagher, O'Brian, Cassidy & Gallagher, Wheeling, for appellee.

McHUGH, Justice:

This case is before this Court upon certified questions from the Circuit Court of Hancock County, West Virginia. It presents questions as to the applicability of coemployee immunity to a doctor employed by a subscriber to the Workers' Compensation Fund or by a self-insured employer and the effect, if any, of the carrying of liability insurance on such immunity.

Frederick H. Deller, one of the plaintiffs herein 1 [hereinafter, "the injured employee"], suffered a minor knee injury in the course of and resulting from employment with Weirton Steel Division of National Steel Corporation, 2 [hereinafter, "the employer"]. The injured employee was immediately treated at the employer's dispensary for the job-related injury by the defendant, George Naymick, M.D., a duly licensed physician [hereinafter, "the doctor"]. The doctor worked, as a salaried employee, eight hours a day, Monday through Friday, at the employer's dispensary. The dispensary for employees was staffed by the doctor; the medical director (a physician) who supervised him; one other full-time and one part-time physician; and 16 nurses (normally six of whom worked day shift). The doctor was also employed as a physician for an hour a day, two days a week, by another manufacturing company. He also

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had a limited private [176 W.Va. 110] practice while not acting as a doctor for the two companies.

The injured employee later received workers' compensation for the knee injury. Thereafter, the injured employee brought this medical malpractice action against the doctor, alleging that the doctor had re-used the same hypodermic syringe on at least five occasions, causing osteomyelitis of the knee. The injured employee did not include the employer as a defendant.

Upon deposition the doctor admitted that, in a medical sense, a physician/patient relationship arises when he performs his medical services for the employer, and that, although the employer has the right to administrative supervision over him, he is not subject to the employer's control professionally. He has his own medical malpractice insurance, and the employer has liability insurance. Both of these policies expressly exclude coverage, though, when workers' compensation is applicable to compensate the person injured.

The doctor's motion, under Rule 12(b)(6), W.Va.R.Civ.P., to dismiss the complaint for failure to state a claim upon which relief can be granted was denied by the trial court. The motion to dismiss was based upon the alleged immunity from suit provided by W.Va.Code, 23-2-6a [1949]. 3 Upon the joint motion of the parties the trial court certified two questions to this Court (paraphrased by us): 4

(1) is a full-time, salaried doctor employed by a subscriber to the Workers' Compensation Fund or by a self-insured employer 5 subject to a coemployee's medical malpractice action, because of the "dual capacity" doctrine, despite the provisions of W.Va.Code, 23-2-6a [1949]?

(2) is the immunity from tort liability provided by W.Va.Code, 23-2-6a [1949] inapplicable to the extent that the doctor employed by a subscriber to the Workers' Compensation Fund or by a self-insured employer is covered by liability insurance?

The trial court answered the first question negatively but answered the second question affirmatively. We agree with the first conclusion but disagree with the second conclusion.

I. Coemployee Immunity

"The Workmen's [Workers'] Compensation Act was designed to remove negligently caused industrial accidents from the common law tort system." Mandolidis v. Elkins Industries, Inc., 161 W.Va. 695, 700, 246 S.E.2d 907, 911 (1978) (emphasis in original). "The benefits of this [statutory]

Page 76

system accrue both to the employer, who is relieved from common-law tort liability for negligently inflicted injuries, and to the [176 W.Va. 111] employee, who is assured prompt payment of benefits." Meadows v. Lewis, 172 W.Va. 457, 469, 307 S.E.2d 625, 638 (1983). Workers' compensation is the exclusive remedy against a coemployee when he acts in furtherance of the employer's business and does not inflict an injury with deliberate intention. See W.Va.Code, 23-2-6a [1949], supra, n. 3.

The immunity from tort liability provided by W.Va.Code, 23-2-6a [1949] to, among others, coemployees is the same as the immunity from tort liability provided by W.Va.Code, 23-2-6 [1974] to an employer. See Bennett v. Buckner, 150 W.Va. 648, 654, 149 S.E.2d 201, 205 (1966). This statutory immunity of a coemployee is not violative of the due process provisions of the State and Federal Constitutions because, like the employer, a coemployee is involved in a compromise of rights; among employees, the quid pro quo is that each employee surrenders his common law right to bring tort actions against other employees in return for immunity to their tort suits. See Crawford v. Parsons, 141 W.Va. 752, 759, 92 S.E.2d 913, 917 (1956). Moreover, a person may be a coemployee, for the purpose of immunity under W.Va.Code, 23-2-6a [1949], even though he is employed to perform a different task in a different place than the injured employee. See Bennett v. Buckner, supra, 150 W.Va. at 652, 149 S.E.2d at 203.

W.Va.Code, 23-2-6a [1949] applies when the person causing the injury to or the death of an employee (1) is an officer, manager, agent, representative or employee of the employer; (2) is acting in furtherance of the employer's business; and (3) does not inflict an injury with deliberate intention. In this case there is no allegation of deliberate intention; instead, there is an allegation of negligence. The other two requirements for statutory immunity from liability are met in this case.

The doctor herein is an "employee." W.Va.Code, 23-2-1a [1975] 6 contains the comprehensive statutory definition of "employees" for purposes of workers' compensation. " 'Employee,' the term used in our statute [ W.Va.Code, 23-2-1a [1975]], is a broader term than 'workman' ['worker'] and is applicable to all persons in the service of the employer. [citation omitted] The breadth of the term may be limited by statutory exception." West Virginia Coal & Coke Corp. v. State Compensation Commissioner, 116 W.Va. 701, 704, 182 S.E. 826, 828 (1935). Ordinarily, a member of a profession is not considered to be an "employee," within the meaning of workers' compensation laws, because he usually provides his services for a limited purpose and only for particular transactions. Id., 116 W.Va. at 704, 182 S.E. at 827-28. On the other hand, a professional person is an "employee" for workers' compensation purposes when he or she provides his or her services "to an employer largely to the exclusion of otherwise special employment, for a certain fixed and determined period, at a regular salary, and hold[s] [himself or herself] in readiness at all times to serve [his or her] employer[.]" Id., 116 W.Va. at 704, 182 S.E. at 828. Such is the case here. West Virginia Coal & Coke, supra, contains this holding in syllabus point 3:

Where there is a contract of employment between a physician and a subscriber to the Workmen's [Workers'] Compensation Fund whereby the physician, for stipulated remuneration, undertakes to

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render professional service to employees of such subscriber for a definite period, and places his services and professional ability at the call of his employer, the physician will be considered an employee [176 W.Va. 112] within the meaning of the Workmen's [Workers'] Compensation Act.

In addition to being an "employee" for the purpose of immunity from liability under W.Va.Code, 23-2-6a [1949], the doctor herein was "acting in furtherance of the employer's business" at the time in question as provided by such statute. "[The doctor's] services, which were rendered in furtherance of the employer's business, under express authority of the employer, ..., are the employer's acts." Hinkelman v. Wheeling Steel Corp., 114 W.Va. 269, 270, 171 S.E. 538, 539 (1933). 7 The sole syllabus point of Hinkelman is controlling here:

If a doctor, who is employed by a subscriber to the...

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26 practice notes
  • State ex rel. ACF Industries v. Vieweg, No. 25142.
    • United States
    • Supreme Court of West Virginia
    • February 5, 1999
    ...compensation benefits. Sec. 1, Chap. 15P, W. Va.Code, et seq. (Code 1913, sec. 657, et seq.) (Main Vol.1914); Deller v. Naymick, 176 W.Va. 108, 110-11, 342 S.E.2d 73, 75-76 (1985); Mains v. J.E. Harris Co., 119 W.Va. 730, 732-33, 197 S.E. 10,11 (1938). As a result of this legislative action......
  • Verizon West Virginia, Inc. v. West Virginia Bureau of Employment Programs, No. 30899.
    • United States
    • Supreme Court of West Virginia
    • July 9, 2003
    ..."elect[ed] to make direct payments of compensation in lieu of subscribing to the Workers' Page 38 Compensation Fund." Deller v. Naymick, 176 W. Va. 108, 110 n.5, 342 S.E.2d 73, 75 n.5 (1985). Consequently, "[e]xcept for the small charges for administrative expenses, self-insured employers m......
  • Suburban Hospital v. Kirson, No. 2
    • United States
    • Court of Appeals of Maryland
    • December 8, 2000
    ...of compensation claims; reasoning that selection was part of employer's duty to provide care reasonably required); Deller v. Naymick, 176 W.Va. 108, 342 S.E.2d 73, 78 (1985) (applying plain language of statute in holding that full-time company doctor has only one In addition to the precedin......
  • Leggett v. Eqt Prod. Co., No. 16-0136
    • United States
    • Supreme Court of West Virginia
    • May 26, 2017
    ...or obscure meaning." T. Weston, Inc. v. Mineral County, 219 W. Va. 564, 568, 638 S.E.2d 167, 171 (2006) (citing Deller v. Naymick, 176 W. Va. 108, 112, 342 S.E.2d 73, 77 (1985)). 17. This is where we believe the previous majority most clearly missed the mark. Caught up in the passionate and......
  • Request a trial to view additional results
26 cases
  • State ex rel. ACF Industries v. Vieweg, No. 25142.
    • United States
    • Supreme Court of West Virginia
    • February 5, 1999
    ...compensation benefits. Sec. 1, Chap. 15P, W. Va.Code, et seq. (Code 1913, sec. 657, et seq.) (Main Vol.1914); Deller v. Naymick, 176 W.Va. 108, 110-11, 342 S.E.2d 73, 75-76 (1985); Mains v. J.E. Harris Co., 119 W.Va. 730, 732-33, 197 S.E. 10,11 (1938). As a result of this legislative action......
  • Verizon West Virginia, Inc. v. West Virginia Bureau of Employment Programs, No. 30899.
    • United States
    • Supreme Court of West Virginia
    • July 9, 2003
    ..."elect[ed] to make direct payments of compensation in lieu of subscribing to the Workers' Page 38 Compensation Fund." Deller v. Naymick, 176 W. Va. 108, 110 n.5, 342 S.E.2d 73, 75 n.5 (1985). Consequently, "[e]xcept for the small charges for administrative expenses, self-insured employers m......
  • Suburban Hospital v. Kirson, No. 2
    • United States
    • Court of Appeals of Maryland
    • December 8, 2000
    ...of compensation claims; reasoning that selection was part of employer's duty to provide care reasonably required); Deller v. Naymick, 176 W.Va. 108, 342 S.E.2d 73, 78 (1985) (applying plain language of statute in holding that full-time company doctor has only one In addition to the precedin......
  • Leggett v. Eqt Prod. Co., No. 16-0136
    • United States
    • Supreme Court of West Virginia
    • May 26, 2017
    ...or obscure meaning." T. Weston, Inc. v. Mineral County, 219 W. Va. 564, 568, 638 S.E.2d 167, 171 (2006) (citing Deller v. Naymick, 176 W. Va. 108, 112, 342 S.E.2d 73, 77 (1985)). 17. This is where we believe the previous majority most clearly missed the mark. Caught up in the passionate and......
  • Request a trial to view additional results

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