Application Of The Workers’ Compensation Exclusivity Bar To Disability Discrimination Claims Under The West Virginia Human Rights Act

In this issue of the Labor and Employment Group’s Views and Visions e-alert, we cover a new case addressing the situation of an employee who claimed she was physically harmed by her employer’s failure to make a reasonable accommodation. In Messer v. Huntington Anesthesia Group, Inc., Slip Op. No. 31737, which was decided by the West Virginia Supreme Court of Appeals on July 7, 2005, an employee attempted to seek recovery under the West Virginia Human Rights Act (WVHRA) for workplace injuries that were compensable under the Workers’ Compensation Act (WCA). The Supreme Court applied the workers’ compensation exclusivity bar to her claims of injuries for which workers’ compensation benefits may be sought, including aggravations and physical and non-physical conditions flowing directly and uniquely from the injury, but did not apply the exclusivity bar to her claims of injuries caused by the unlawful discriminatory acts of an employer which are not otherwise recoverable under the WCA. The 4-1 opinion was written by Justice Benjamin, with Justice Maynard dissenting.

The Messer plaintiff, a certified registered nurse anesthetist, sustained a herniated disc from a workplace back injury and had medical restrictions which imposed lifting restrictions and precluded her from working over eight hours a day. Because her employer, a medical practice, allegedly ignored her restrictions, she claimed that her physical condition progressed and worsened to the point that she was no longer able to perform her job. She then sued her employer under the WVHRA alleging failure to provide reasonable accommodation for her disability. The employer filed a motion to dismiss based upon the exclusivity provisions of the WCA. The trial court granted the employer’s motion, finding that the WVHRA did not create a cause of action for workplace injuries and that such injuries were under the exclusive jurisdiction of the WCA.

On appeal, the Supreme Court affirmed in part and reversed in part the trial court’s ruling. The Court reasoned that the plaintiff’s cause of action for discrimination was not based on her employer’s liability for a compensable work injury within the meaning of the WCA. Instead, it was based on the employer’s alleged subsequent discriminatory conduct that, although incidentally related her compensable work-related injury, gives rise to entirely separate liability under the WVHRA. Therefore, the Court found that since the two laws seek to remedy two separate harms, physical injury and discrimination, no conflict exists. The injury that the plaintiff seeks to redress under the WVHRA “is the indignity of the alleged discrimination against her because of her disability.”

In Messer, the Court noted that the plaintiff actually alleged two separate types of injuries.Accordingly, to the extent that her injuries were of the type for which workers’ compensation benefits may be sought, including aggravations and physical and non-physical conditions flowing directly and uniquely from such injury, the exclusivity provisions of the WCA prohibit recovery outside the WCA. However, to the extent that her injuries were directly and proximately caused by the unlawful discriminatory acts of her employer, and are of a type not otherwise recoverable under the WCA, the exclusivity provisions of the WCA are inapplicable. The Court therefore concluded that while an aggravation of the plaintiff’s physical injury by the conduct of her employer may be compensable and thus subject to the exclusivity provisions of the WCA, the claim against her employer for violation of the WVHRA and resulting non-physical injuries, such as mental and emotional distress and anguish, directly resulting from such violation and not associated with the physical injury or the worsening thereof are not barred by the exclusivity provisions of the WCA.

The Messer decision makes plain that any attempt to seek recovery under the WVHRA for compensable injuries subject to the WCA, including aggravations and physical and non-physical injuries flowing from such injuries, is barred by the exclusivity provisions of the WCA. Ultimately, whether a plaintiff’s non-physical injuries are recoverable under the WVHRA will depend upon whether such conditions are associated with a compensable injury or are related to alleged discriminatory conduct in violation of the WVHRA.

To read the full text of the opinion, visit the West Virginia Supreme Court of Appeals opinions page. The case was defended by our firm, so please feel free to contact one of the members of the firm’s Labor and Employment or Workers’ Compensation Groups if you have any questions about this case or the application of the WVHRA or WCA to your workplace.

The authors present these materials with the understanding that the information provided is not legal advice. Due to the rapidly changing nature of the law, information contained in this publication may become outdated. Anyone using these materials should always research original sources of authority and update this information to ensure accuracy when dealing with a specific matter. No person should act or rely upon the information contained in this publication without seeking the advice of an attorney.