Persinger v. Peabody Coal Co., 23023

Citation474 S.E.2d 887,196 W.Va. 707
Decision Date12 July 1996
Docket NumberNo. 23023,23023
CourtSupreme Court of West Virginia
PartiesRoger PERSINGER, Plaintiff Below, v. PEABODY COAL COMPANY, Defendant Below.

Syllabus by the Court

1. West Virginia Code § 23-2-6 (1994) does not preclude an employee from maintaining a separate and distinct cause of action against an employer for damages as a result of the employer knowingly and intentionally fraudulently misrepresenting facts to the Workers' Compensation Fund that are not only in opposition to the employee's claim, but are made with the intention of depriving the employee of benefits rightfully due him.

2. Pursuant to West Virginia Code §§ 23-4-1a and 23-4-1c (1994), an employer has a statutory right as a party to a workers' compensation action to contest the compensability of an employee's injury and/or to object to any subsequent finding or award.

3. An employee's cause of action against his/her employer for fraudulent misrepresentation concerning the employee's workers' compensation claim must be pled with particularity and must be supported by factual allegations identifying the employer's particular acts or circumstances which distinguish the intentional tort of fraudulent misrepresentation from the employer's negligent misrepresentation or mere delay in processing or payment of said claim, the latter two of which are not sufficient to support an employee's independent cause of action.

4. In order for a plaintiff employee to prevail on the narrowly construed cause of action by the employee against an employer for fraudulent misrepresentation concerning the employee's workers' compensation claim, the employee must (1) plead his or her claim with particularity, specifically identifying the facts and circumstances that constitute the fraudulent misrepresentation, and (2) prove by clear and convincing evidence all essential elements of the claim, including the injury resulting from the fraudulent conduct. A plaintiff employee is not entitled to recover unless the evidence at trial is persuasive enough for both the judge and jury to find substantial, outrageous and reprehensible conduct which falls outside of the permissible boundary of protected behavior under the statute. If the pleadings or evidence adduced is insufficient to establish either of the two factors stated above, the trial court may dismiss the action pursuant to Rule 12(b), Rule 56 or Rule 50 of the West Virginia Rules of Civil Procedure.

Roger D. Forman, Mary Glass Newbrough, Forman & Crane, Charleston, for Plaintiff.

Gerard R. Stowers, Michael J. Schessler, Bowles, Rice, McDavid, Graff & Love, Charleston, for Defendant.

WORKMAN, Justice:

This case is before the Court upon the following certified questions posed by the July 26, 1995, order of the United States District Court of the Southern District of West Virginia at Beckley May an employee, who has filed a Workers' Compensation claim and who has been awarded benefits by the West Virginia Workers' Compensation Fund, maintain a cause of action against his employer for damages as a result of the employer knowingly filing a false and/or misleading statement with the Fund in opposition to the employee's claim?

If such a cause of action for fraud is available, what damages are available to the employee?

I.

This action arises out of an injury which the Plaintiff, Roger Persinger, claims he sustained on June 17, 1992, while he was employed by the Defendant, Peabody Coal Company ("Peabody") at the Montcoal No. 7 Mine Preparation Plant refuse area as a slate truck driver. According to the accident report filled out by the Plaintiff's supervisor, Don Deskins, in connection with the Plaintiff's report of the injury to him, the Plaintiff was hauling slate from the preparation plant to the site where it was to be dumped, when his truck "hit a bump in the road, the bump jarred him and he hit in the seat solid[,]" due to his air suspension seat deflating completely. During his deposition, Mr. Deskins stated that at the time the Plaintiff reported his injury, the Plaintiff told him that "this was a reoccurrence of an old injury[,]" and that he observed that the Plaintiff "was bent holding his lower back[.]" Despite what the Plaintiff reported and what Mr. Deskins observed, Mr. Deskins stated that he had doubts regarding the Plaintiff's injuries, because "[b]ack injuries are always suspect to me." Mr. Deskins indicated, however, that he did not convey his doubt regarding the Plaintiff's injury to anyone else. 1 The Plaintiff left work after reporting the incident.

The next morning, the Plaintiff went to Raleigh General Hospital where, upon examination, he was diagnosed as suffering from an acute lumbar sprain. The Plaintiff was given a cane, placed on pain medications, and referred to Dr. George Orphanos. Dr. Orphanos saw the Plaintiff on June 24, 1992, and, based on his examination, noted that "[m]ost probably lumbar sacral sp[r]ain occur[r]ed[.]" The Plaintiff continued to see Dr. Orphanos until January 29, 1993, when he was released from the doctor's care. During Dr. Orphano's treatment of the Plaintiff, the doctor opined that his patient "remained disabled until the time of release" from his care. 2

On June 18, 1992, the Plaintiff filed a workers' compensation claim with the West Virginia Workers' Compensation Fund ("Fund") regarding his injury. In opposition to the Plaintiff's claim, Steve Farley, the Defendant's Employee Relations Representative, completed the employer's portion of the Workers' Compensation claim and stated on said form that "No known job-related injury occurred on 6-17-92. Please see attached documentation." 3 The Plaintiff alleges that "[t]here was no information contained in Mr. Farley's notes that would support a denial of Mr. Persinger's work injury." The Plaintiff, through discovery, has also unearthed information in the form of a notarized letter dated July 17, 1994, from Larry D. McKnight, a UMWA Workers' Compensation Representative working at Peabody, which indicated that "Mr Farley told me of an incident concerning Roger Persinger's accident of June 17, 1992. He told me that Mr. Gerald Blair, Compensation Representative of Peabody Coal Co., had conspired with Mr. Bill Pennington, Slate Truck Foreman ..., to deny Mr. Roger Persinger his Compensation Benefits."

The Plaintiff's workers' compensation claim was originally denied. He appealed the decision, however, and was awarded workers' compensation benefits dating back to the date of the injury. 4

The Plaintiff then filed a civil action for fraud against the Defendant in the United States District Court for the Southern District of West Virginia at Beckley. The Plaintiff alleges in the action that in response to his workers' compensation claim, the Defendant, through its management employees, filed with the Fund a statement which they knew to be false and misleading. The Plaintiff claims that this action caused his claim to be denied originally, and subsequently caused him "to expend all of his life savings to support his family, to borrow from others and as a consequence suffered serious physical and psychiatric injuries." 5

The Defendant contends that there is no private cause of action for wrongfully protesting a workers' compensation claim and, even if such a private right of action exists, the Plaintiff has no damages because he ultimately received workers' compensation benefits. Further, the Defendant, indicates in its brief before this Court that even if such a claim exists, that it protested the claim believing the circumstances of the Plaintiff's claim were suspicious and not work-related, because its investigation revealed the seat to be operational and the Plaintiff's description of the accident did not seem to correspond with the physical facts. Moreover, during discovery, the Defendant indicated that it learned that the Plaintiff was assisted in filing his workers' compensation claim by a close friend and union representative, Terry Cameron. Mr. Cameron, who was deposed twice, initially invoked his Fifth Amendment right against self-incrimination and refused to testify during a deposition. He later testified and admitted to removing documents from the Defendant's files related to the truck in which the Plaintiff was injured. Further, Mr. Cameron recently has given a written statement to a fraud investigator working for the Fund wherein he admits that he and the Plaintiff set out to defraud the Fund when the Plaintiff hurt his back at home by conspiring to make the injury appear to be work-related.

The district court has denied, without prejudice, the Defendant's motion for summary judgment with regard to the Plaintiff's cause of action in fraud. Based on our review of the record, the parties' briefs and arguments, and all other matters submitted before this Court, we find that an employee can maintain a private cause of action in fraud against his employer for damages as a result of the employer's knowingly and intentionally filing a false statement with the Fund in opposition to the employee's claim.

II.

The first certified question concerns whether a private cause of action in fraud for damages exists in favor of an employee who alleges that his employer knowingly filed a false or misleading statement with the Fund in opposition to the employee's claim, even though the employee was ultimately awarded benefits from the Fund. The Plaintiff argues that West Virginia Code § 23-2-6 (1994), which grants an exemption from damages arising out of common law actions to employers who contribute to the Fund, removes the cloak of immunity where an employer fails to comply fully with all the provisions of chapter 23 of the West Virginia Code. 6 See W.Va.Code § 23-2-6. The Plaintiff asserts that the Defendant did not fully comply with the provisions in chapter 23 when it submitted a false statement to the Fund in contravention of West...

To continue reading

Request your trial
25 cases
  • Perrine v. E.I. Du Pont De Nemours And Co., 34333
    • United States
    • Supreme Court of West Virginia
    • March 26, 2010
    ...Kessel v. Leavitt, 204 W.Va. 95, 511 S.E.2d 720 (1998) (tortious interference with parental relationship); Persinger v. Peabody Coal Co., 196 W.Va. 707, 474 S.E.2d 887 (1996) (employer's fraudulent misrepresentation of employee's Workers' Compensation claim); Shamblin v. Nationwide Mut. Ins......
  • Messer v. Huntington Anesthesia Group, Inc., 31739.
    • United States
    • Supreme Court of West Virginia
    • July 7, 2005
    ...prompt payment of benefits." Meadows v. Lewis, 172 W.Va. 457, 469, 307 S.E.2d 625, 638 (1983); see also Persinger v. Peabody Coal Co., 196 W.Va. 707, 713, 474 S.E.2d 887, 893 (1996). State ex rel. Abraham Linc Corp., 216 W.Va. 99, 602 S.E.2d at 546. [In footnote seven, the Court stated: "Th......
  • Bailey v. Norfolk and Western Ry. Co., 26004.
    • United States
    • Supreme Court of West Virginia
    • December 15, 1999
    ...152, 503 S.E.2d 6 (1998) (recognizing a new unlitigated cause of action on appeal and remanding for trial); Persinger v. Peabody Coal Co., 196 W.Va. 707, 474 S.E.2d 887 (1996) (recognizing a new unlitigated cause of action on a certified question to the Court and remanding for trial); Mando......
  • State ex rel. Abraham Linc. Corp. v. Bedell, 31538.
    • United States
    • Supreme Court of West Virginia
    • July 1, 2004
    ...prompt payment of benefits." Meadows v. Lewis, 172 W.Va. 457, 469, 307 S.E.2d 625, 638 (1983); see also Persinger v. Peabody Coal Co., 196 W.Va. 707, 713, 474 S.E.2d 887, 893 (1996).7 A. The Statutory West Virginia Code § 23-2-6 (1991) (Repl.Vol.2002)8 provides exemption from common law tor......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT