Messer v. Huntington Anesthesia Group, Inc.

Decision Date07 July 2005
Docket NumberNo. 31739.,31739.
Citation620 S.E.2d 144
CourtWest Virginia Supreme Court
PartiesTheresa D. MESSER, Appellant, v. 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, Appellees.

Walt Auvil, The Employment Law Center, PLLC, Parkersburg, for Appellant.

Elizabeth D. Harter, Mark H. Dellinger, Bowles, Rice McDavid Graff & Love, LLP, Charleston, for Appellees.

Darrel V. McGraw, Jr., Attorney General, Jamie S. Alley, Assistant Attorney General, Paul R. Sheridan, Assistant Attorney General, West Virginia Attorney General's office, Charleston, 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.

BENJAMIN, Justice.

This 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:

1. The West Virginia Human Right Act does not create a cause of action for workplace injuries;

2. Any injuries as alleged and sustained are the exclusive jurisdiction of the Workers' Compensation Act.

Appellant, 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).

This 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.


Since 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 style accordingly.

The complaint 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.

The record 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."1 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.

As noted 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.


"Appellate 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 Runyan 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).

A. The Issue on Appeal and the Nature of Appellant's Claims

This appeal presents the issue of whether the exclusivity provisions of the West Virginia Workers' Compensation Act shield an employer from the injuries directly caused 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.

The essence 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...

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