State News : West Virginia

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West Virginia




West Virginia News: Employer and Co-Employee Immunity, COVID-19 Compensability, and Intentional Tort Damages Cap

West Virginia Supreme Court of Appeals


Employer and Co-Employee Immunity


Precision Pipeline, LLC, et. al v. Weese, ___ S.E.2d ___, 2023 WL 2365328 (W.Va. 03/06/2023)


In Precision Pipeline, the Supreme Court reinforced what it termed as “sweeping” immunity from common law tort liability provided to employers by the workers’ compensation statute. The workers’ compensation act shields an insured employer from liability outside the workers’ compensation system for workplace injuries. Similarly, an employee of an insured employer who negligently injures a fellow employee during the course of their employment is not liable to respond in damages to the injured fellow employee for the personal injuries caused.


Mr. Weese was injured in course and scope of his employment with Precision Pipeline and brought claims of negligent hiring, retention, and supervision against his employer with respect to co-employees, negligence claims against the employer and co-employees, a vicarious liability claim against his employer, and a claim for punitive damages. The Court reversed the circuit court’s order denying a motion to dismiss because workers’ compensation immunity bars the employee’s claims.


Weese severely injured his left leg at work and was treated at the accident scene by an on-site EMT Vanessa Stromberg who also was employed by Precision. Weese argued the EMT was not licensed and “provided no actual medical assistance or intervention on site;” and that “no ambulance or outside medical assistance” was summoned in violation of West Virginia law and public policy to treat medical emergencies. Weese alleged that he has been unable to work and has suffered permanent injuries as a direct result of Precision's negligence “in seeking acute medical care for [him]” and “the lack of competent immediate [sic] medical care.” Weese also alleged in his complaint that “supervisors and other Precision Pipeline employees received monetary bonuses based in part on workplace safety and limiting reportable workplace injuries[,]” and that petitioners “conspired to provide the bare minimum emergency medical response to [respondent] to ensure that safety bonuses were not affected.” Because Weese’s injury occurred in the course and scope of his employment, he received workers’ compensation benefits for his injury. He also claimed negligent hiring, retention, and supervision against Precision with respect to a co-employee superintendent and the co-employee EMT (Count 1); negligence against Precision Pipeline and the two co-employees (Count 2); vicarious liability against Precision (Count 3); and punitive damages (Count 4). The defendants moved to dismiss asserting workers’ compensation immunity under W. Va. Code § 23-2-6 (2003) and § 23-2-6a (1949). 


The Court described workers’ compensation immunity from common law tort liability as sweeping:

The Legislature intended for W.Va. Code § 23-2-6 (1991) to provide qualifying employers sweeping immunity from common-law tort liability for negligently inflicted injuries. As this Court succinctly stated in State ex rel. Frazier v. Hrko, 203 W.Va. 652, 659, 510 S.E.2d 486, 493 (1998), ‘[w]hen an employer subscribes to and pays premiums into the Fund, and complies with all other requirements of the Act, the employer is entitled to immunity for any injury occurring to an employee and ‘shall not be liable to respond in damages at common law or by statute.’ W. Va. Code § 23–2–6 [1991].

Precision Pipeline, LLC v. Weese, 2023 WL 2365328, at *3 (quoting Bias v. E. Assoc'd. Coal Corp., 220 W. Va. 190, 194, 640 S.E.2d 540, 544 (2006)).


The Court noted that the workers’ compensation immunity extends to negligent co-workers:

The sweeping immunity afforded to employers by West Virginia Code § 23-2-6 extends to acts of fellow employees by virtue of West Virginia Code § 23-2-6a, which provides: ‘The immunity from liability set out in the preceding section shall extend to every officer, manager, agent, representative or employee of such employer when he is acting in furtherance of the employer's business and does not inflict an injury with deliberate intention.’

Precision Pipeline, LLC v. Weese, 2023 WL 2365328, at *3.


The Court found it was undisputed Weese filed for workers’ compensation benefits for his injury, and Weese’s receipt of workers’ compensation benefits “. . . necessarily embraces a determination that his injuries were sustained during the course of and as a result of his employment.” Precision Pipeline, 2023 WL 2365328, at *4 (quoting with emphasis added Bennett v. Buckner, 150 W. Va. 648, 653, 149 S.E.2d 201, 204 (1966)). Citing no supporting legal authority, Weese claimed Precision's negligence in hiring, retaining, and supervising the employee as an EMT is not the type of employer negligence contemplated by West Virginia’s workers’ compensation law such that immunity should bar his claim. See id. The Court found this argument ignored the clear and unambiguous language of the statute expressing a clear legislative intent to provide immunity.


West Virginia Code § 23-2-6 expressly provides that qualified employers are “not liable to respond in damages at common law ... for the injury or death of any employee, however occurring[.]” Id., in pertinent part (emphasis added). As we have already noted, “however occurring” means “an employee who is injured in the course of and as a result of his employment, and one who, under the common-law principles of master and servant, could have maintained an action against his employer.” Falls, 223 W. Va. at 72, 672 S.E.2d at 208 (emphasis added). Clearly, respondent, who concedes that he was injured in the course of and as a result of his employment, could have maintained an action against Precision under the common law principles of master and servant. Accordingly, workers’ compensation immunity bars respondent's claim for negligent hiring, retention, and supervision.

Precision Pipeline, LLC v. Weese, 2023 WL 2365328, at *4 (quoting Falls v. Union Drilling, Inc., 223 W. Va. 68, 72, 672 S.E.2d 204, 208 (2008)).


The Court similarly found that Weese’s co-employees are immune from suit.

It is beyond cavil that Stromberg and other employees were acting in furtherance of Precision's business when they attended to respondent following his injury. The allegations in respondent's complaint state that Petitioner Vanessa Stromberg, a supposed EMT employed by Precision, was summoned to the site where respondent was injured, that she failed to provide medical assistance, and that she and other Precision employees drove past a nearby hospital in order to transport respondent first to Precision's office, transferring him to another vehicle, and finally driving him to MedExpress. Respondent's own account of the events at issue – including that the employees’ actions were motivated by monetary safety bonuses allegedly offered by their employer – clearly shows that they were acting in furtherance of their employer's business, albeit negligently so. As such, Stromberg and her fellow employees are immune from suit.

Precision Pipeline, LLC v. Weese, 2023 WL 2365328, at *5.


Intermediate Court of Appeals


In the Spring Term of Court in 2023, the Intermediate Court of Appeals of West Virginia (ICA) continues to issue decisions of importance in workers’ compensation cases. Two opinions of note address the question whether a COVID infection is an ordinary disease of life or an occupational disease.


COVID Compensability


PrimeCare Medical of WV, Inc., v. Brittany Foster, No. 22-ICA-138, 2023 WL 2364951 (W. Va. App. 03/06/2023)


In the first signed opinion in the Spring Term of 2023, the ICA reversed the Board of Review and remanded the case to determine whether claimant met the six statutory factors for establishing a communicable disease of ordinary life was compensable. The ICA found that the Board of Review's order failed to provide sufficient findings of fact and conclusions of law to support its ruling. West Virginia Code § 23-4-1(f) (2021) provides that no ordinary disease of life to which the general public is exposed outside of employment is compensable under workers’ compensation unless the disease was incurred in the course of and resulted from employment. To make such a determination, a detailed analysis of the six factors listed in West Virginia Code § 23-4-1(f) must be completed. No such analysis was completed by the BOR, so the ICA vacate the BOR's final order and remanded the case with direction to make specific findings of fact and conclusions of law for each of the individual factors under West Virginia Code § 23-4-1(f). PrimeCare Medical of WV, Inc. v. Foster, 2023 WL 2364951, at *1 (W.Va. App., 2023).


Foster was employed by PrimeCare as the Health Services Administrator at Southern Regional Jail, and had administered COVID-19 tests to inmates in the medical unit at the jail. When testing, Foster wore full personal protective equipment including an N95 mask. Foster attended a management staff meeting with the heads of each department in the jail. Several days after the meeting, PrimeCare sent everyone who attended the meeting home to quarantine, due to members of the staff testing positive for COVID-19. During Foster’s quarantine period, she engaged in several non-work related activities, including a trip to a drive-through zoo with her mother, father, and two nieces and a visit to the emergency room on August 4, 2020. On August 4, 2020, Foster submitted to a COVID-19 test at Summers County Appalachian Regional Healthcare Hospital, which was negative. On August 11, 2020, Foster took a second COVID-19 test, which was positive. Foster was hospitalized from August 11, 2020, to August 24, 2020, due to pneumonia. As of August 20, 2020, Ms. Foster tested negative for COVID-19.


Foster's medical records note that she has a history of recurrent bronchitis, suffers from morbid obesity, and had an issue with sinus tachycardia over the last few years. Beginning August 31, 2020, and continuing through March 9, 2022, Foster underwent treatment from multiple doctors for COVID-19, major depressive disorder, morbid obesity, asthma, congestive heart failure, dyspepsia, and tachycardia. PrimeCare Medical of WV, Inc. v. Foster, 2023 WL 2364951, at *1 (W. Va. App., 2023).


Claimant filed an application for workers’ compensation benefits (“WC-1”) alleging direct COVID-19 exposure while at work. The physician’s portion of the WC-1 form diagnosed Foster with COVID-19 but indicated “N/A” in response to whether the condition was a direct result of employment. Claimant completed a second WC-1 form again alleging direct COVID-19 exposure while at work. The physician completing the physician's portion of the second WC-1 form indicated “non-occupational condition” in response to whether the condition was a direct result of employment. On March 1, 2022, the claim administrator denied Foster's claim for COVID-19. This order was appealed.


Bruce Guberman, M.D., conducted an IME of Foster and determined that Foster's contraction of COVID-19 was an “occupational disease” based on the medical records and medical history reported by Foster. Dr. Guberman was subsequently deposed and acknowledged that no medical or scientific tests were available to determine the exact source of Foster's COVID-19 infection. Thomas Parker, M.D., issued a medical review report opining that Foster had COVID-19 in August of 2020, but that the condition was not an occupational disease. Further, Dr. Parker opined that Foster recovered from COVID-19 pneumonia very quickly based on the total lung capacity pulmonary function test from September 1, 2020. Dr. Parker attributed Foster's continuing pulmonary problems to asthma and tachycardia, which were well established in her medical records and pre-dated her COVID-19 diagnosis.


On August 29, 2022, the Board of Review reversed the claim administrator, held Foster's workers’ compensation claim compensable for COVID-19, and awarded her temporary total disability benefits from August 10, 2020, through March 9, 2022, to continue thereafter as substantiated by proper medical evidence.


The ICA examined the different routes some state legislatures have taken in addressing COVID-19 in the context of workers’ compensation, and the Court noted the limited number of appellate courts addressing the compensability of COVID-19 in workers’ compensation. The ICA also discussed the enactment by the West Virginia Legislature in March 2021 of the COVID-19 Job Protection Act in W. Va. Code § 55-19-6, that provides that workers’ compensation benefits are the sole remedy for any injury, disease, or death when the work-related injury, disease, or death is caused by COVID-19 received in the course of and resulting from covered employment.


COVID-19 is not compensable as an occupational disease unless it is incurred in the course of and resulting from employment. W. Va. Code § 23-4-1(f). No ordinary disease of life to which the general public is exposed outside of the employment is compensable except when it follows as an incident of occupational disease. “To determine if an ordinary disease of life follows as an incident of occupational disease, a six-factor analysis must be completed, and all factors must be met.” PrimeCare Medical of WV, Inc., 2023 WL 2364951, at *3.


W. Va. Code 23-4-1(f) provides the six-factor compensability test as follows:

A disease is considered to have been incurred in the course of or to have resulted from the employment only if it is apparent to the rational mind, upon consideration of all the circumstances: (1) that there is a direct causal connection between the conditions under which work is performed and the occupational disease; (2) that it can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment; (3) that it can be fairly traced to the employment as the proximate cause; (4) that it does not come from a hazard to which workmen would have been equally exposed outside of the employment; (5) that it is incidental to the character of the business and not independent of the relation of employer and employee; and (6) that it appears to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence, though it need not have been foreseen or expected before its contraction: Provided, That compensation is not payable for an occupational disease or death resulting from the disease unless the employee has been exposed to the hazards of the disease in the State of West Virginia over a continuous period that is determined to be sufficient, by rule of the board of managers, for the disease to have occurred in the course of and resulting from the employee's employment.


The Court held:

With this statutory framework in mind, we hold that although there is no prohibition on a claim for workers’ compensation benefits arising from or relating to COVID-19, it is generally not compensable, as it is a disease of ordinary life, unless the six factors contained in § 23-4-1(f) are met. While this undoubtedly creates a high burden on the claimant in establishing his or her case, it does not bar the compensability of COVID-19 claims when this burden is met.

PrimeCare Medical of WV, Inc., 2023 WL 2364951, at *4.


COVID Compensability


Vaughn Hutchison v. Raytheon Corp., No. 22-ICA-105, 2023 WL 2568817 (W. Va. App. 03/20/2023) (memorandum decision)

In Hutchison v. Raytheon Corp., No. 22-ICA-105, 2023 WL 2568817 (W. Va. App. 03/20/2023) (memorandum decision), the ICA held that a determination of COVID-19 as an occupational disease requires the Board of Review to meaningfully assess the facts of each claim under the six-factors set forth in W. Va. Code 23-4-1(f), as discussed in PrimeCare Medical of WV, Inc., v. Brittany Foster, No. 22-ICA-138, 2023 WL 2364951 (W. Va. App. 03/06/2023). Hutchison failed to satisfy all of the six factors and the denial of his COVID-19 claim was affirmed.


Hutchison was employed by Raytheon as a builder of aircraft de-icing units. During the shut downs caused by the COVID-19 pandemic, Hutchison and his co-workers were deemed “essential workers” and the Raytheon facility operated normally with no reduction in the number of employees working any given shift. Hutchison testified co-workers were in close proximity to one another, and no social distancing or masking protocols were in place at the facility. Hutchison alleged he was exposed to and contracted COVID-19 in his workplace during an outbreak among employees when he and eight others tested positive. Hutchison v. Raytheon Corporation, 2023 WL 2568817, at *1.


Hutchison admitted that he attended church approximately three times monthly where congregation attendance consisted of approximately two hundred people. Hutchison was not aware of the health department considering his church to be a place of COVID-19 outbreak. The record is silent as to whether any COVID-19 safety protocols were employed by the church.


After contracting COVID-19, Hutchison was hospitalized and treated for atypical pneumonia from COVID-19 infection and dyspnea. He also reported to the hospital emergency department for shortness of breath, viral pneumonitis, and a respiratory tract infection from COVID-19. Hutchison completed a West Virginia Workers’ Compensation Employees’ and Physicians’ Report of Occupational Injury or Disease (“WC-1”) form alleging that he had contracted COVID-19 due to his workplace exposure. The physician's portion of the application was completed by Zach Halsey, D.O., who confirmed the diagnosis of COVID-19. Hutchison v. Raytheon, 2023 WL 2568817, at *2.


The claim administrator denied Hutchison's workers’ compensation claim based upon a lack of a causal connection between Hutchison's COVID-19 diagnosis and his work per W. Va. Code § 23-4-1(f), as COVID-19 is a disease of ordinary life to which the public is exposed outside of work. Hutchison protested and the Office of Judges affirmed the order of the claim administrator, concluding that COVID-19 is a disease of life to which the public at large is exposed and Hutchison's exposure at work did not arise to a level where such exposure could be deemed to have arisen in the course of and resulting from his employment. The Board of Review affirmed the decision of the Office of Judges.

On appeal, the ICA stated that an analysis of compensability of COVID-19 required Hutchison to satisfy all six factors set forth in W. Va. Code § 23-4-1(f) to prove compensability. In this case, the Board of Review found that COVID-19 is a disease of life to which the public at large is exposed and concluded that Hutchison's exposure at work did not arise to a level which could be deemed to have arisen in the course of and resulting from his employment. The Board of Review determined that even if it were to concede factors one, two, and three, that Hutchison could not satisfy the remaining factors. Specifically, after discussing the evidence introduced regarding Hutchinson's exposure at work and potential exposure at other locations including church, the Board of Review found “as the claimant described his exposure at Raytheon Corp., it would be difficult to find that COVID-19 comes from a hazard to which a workman would have been not exposed outside of employment.” The Board of Review also concluded that the exposure was not incidental to the character of the business, and that it did not have its origin in a risk connected with the employment. Hutchison v. Raytheon, 2023 WL 2568817, at *3.


The ICA agreed and concluded that the Board of Review was not clearly wrong in finding that Hutchison failed to meet his burden to prove that his contraction of COVID-19 was the result of his employment. “Per our decision in PrimeCare, if the BOR finds that the claimant has failed to satisfy any of the six factors under West Virginia Code § 23-4-1(f), further analysis is unwarranted.” Hutchison v. Raytheon, 2023 WL 2568817, at *3 (emphasis in original).




In Jessica Cassel v. Aspen Builders, Inc., No. 22-ICA-211, 2023 WL 2366502 (W. Va. App., 03/06/2023) (memorandum decision), the ICA addressed the question whether a fatal dependents’ benefits claim was properly filed in West Virginia when the employee’s death occurred on a job site in Kentucky. The claim administrator issued an order denying dependent benefits for lack of jurisdiction because Mr. Cassel was killed while working in Kentucky on a non-temporary basis. To be entitled to benefits under the West Virginia Workers’ Compensation system an employee's work in another state must be on a temporary or transitory basis. See West Virginia Code § 23-2-1a (2021). Cassel v. Aspen Builders, Inc., 2023 WL 2366502, at *1. The ICA found that the Board of Review was not clearly wrong in finding that Mr. Cassel’s work in Kentucky was not temporary or transitory due to testimony from the employer that Mr. Cassel would be working in Kentucky for over thirty days and the project he was working on when he sustained the fatal injury did continue beyond thirty days. The ICA found no error in the Board of Review’s ruling that Ms. Cassel is not entitled to Workers’ Compensation benefits in West Virginia.


West Virginia Legislative Session 2023


Intentional Tort Legislation Damages Cap


House Bill 3270 amends West Virginia Code § 23-4-2 and the deliberate intent exception to the exclusive remedy of workers’ compensation insurance for employee recovery for workplace injuries. The amendments limit noneconomic damages to $500,000 and heightens the burden of proof in deliberate intent cases based on occupational pneumoconiosis. The bill is effective 90 days from passage on June 8, 2023. The section applies to causes of action accruing on or after July 1, 2023.


House Bill 3270 created a new section W. Va. Code § 23-4-2a. In any deliberate intent lawsuit, the maximum amount recoverable as compensatory damages for noneconomic loss may not exceed the higher of two times the economic damages before the workers’ compensation offset or $500,000 for each person, regardless of the number of plaintiffs or defendants or, in the case of wrongful death, the number of distributees.


House Bill 3270 also sets a higher standard of proof necessary to bring a deliberate intent case when the underlying workplace claim is for occupational pneumoconiosis, set forth in W. Va. Code § 23-4-2(d)(2)(B)(v)(IV). House Bill 3270 added a threshold requirement that “the employee asserting a cause of action based upon this clause must prove that the employer fraudulently concealed or manipulated dust samples or air quality samples.”


Preferential Recall of Injured Employee


Another bill of interest to businesses in West Virginia is Senate Bill 661 that amends West Virginia Code §23-5A-3, relating to the preferential recall rights of an employee who is off work due to a compensable injury. The changes in the new statute include the employee’s demand for reinstatement to his/her former position must be in writing and delivered to the employer’s address by U.S. Mail with return receipt requested. The preferential recall time period remains one year provided the employee provides the employer a current mailing address during the one-year period. Finally, the new bill provides for a preferential recall time period of no greater than 120 days after the employee is released to return to work by a licensed physician when the injured employee is employed by contractors as defined by W. Va. Code §30-42-3 of the West Virginia Contractor Licensing Act. The employee of such an employer has an obligation to continually seek the possibility of employment during the preferential recall period, and the employee’s right to preferential recall terminates once the employer offers the employee his or her former position or a comparable position. The bill was signed by Governor Justice on March 29, 2023, and is effective 90 days from passage on June 9, 2023.


For any questions, please contact:

Dill Battle

Spilman Thomas & Battle, PLLC