Master Mechanical Insulation v. Richard Simmons , 232 W. Va. 581 ( 2013 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2013 Term FILED
__________ November 6, 2013
released at 3:00 p.m.
RORY L. PERRY II, CLERK
No. 12-1206 SUPREME COURT OF APPEALS
__________ OF WEST VIRGINIA
MASTER MECHANICAL INSULATION, INC.,
Defendant Below, Petitioner
v.
RICHARD SIMMONS,
Plaintiff Below, Respondent
______________________________________________________
Appeal from the Circuit Court of Cabell County
Honorable F. Jane Hustead, Judge
Civil Action No. 06-C-0133
CERTIFIED QUESTIONS ANSWERED
_________________________________________________________
Submitted: October 1, 2013
Filed: November 6, 2013
Robert H. Sweeeney, Jr., Esq. J. Michael Ranson, Esq.
Nathanial A. Kuratomi, Esq. George Morrone III, Esq.
Jenkins Fenstermaker PLLC Ranson Law Offices
Huntington, West Virginia Charleston, West Virginia
Counsel for Petitioner
G. Patrick Jacobs, Esq.
Jacobs Law Offices
Charleston, West Virginia
Counsel for Respondent
JUSTICE LOUGHRY delivered the Opinion of the Court.
CHIEF JUSTICE BENJAMIN concurs, in part, and dissents, in part, and reserves the
right to file a separate opinion.
JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
1. “The appellate standard of review of questions of law answered and
certified by a circuit court is de novo.” Syl. Pt. 1, Gallapoo v. Wal-Mart Stores, Inc., 197
W.Va. 172, 475 S.E.2d 172 (1996).
2. The language set forth in West Virginia Code § 23-4-2(f) (2005), which
addresses the implementation of statutory amendments enacted to West Virginia Code § 23­
4-2 during the 2005 session of the Legislature, pertains to “deliberate intent” cases in which
the injuries occurred after July 1, 2005, and also to actions that are filed on or after July 1,
2005.
3. “When an employee asserts a deliberate intention cause of action against
his/her employer, pursuant to W.Va. Code §§ 23-4-2(b)-(c) (1991) (Cum. Supp. 1991), the
employer may not assert the employee’s contributory negligence as a defense to such
action.” Syl. Pt. 8, Roberts v. Consolidation Coal Co., 208 W.Va. 218, 539 S.E.2d 478
(2000).
i
4. An employer in a “deliberate intent” action brought pursuant to West
Virginia Code § 23-4-2(d)(2)(ii) (2010) may introduce evidence that is relevant to the issues
of whether an employee’s conduct created a specific unsafe working condition; whether the
employer had actual knowledge of that alleged specific unsafe working condition; and
whether the injuries at issue were the proximate result of that specific unsafe working
condition.
ii
LOUGHRY, Justice:
By order entered on October 16, 2012, the Circuit Court of Cabell County
certified three questions to this Court that pertain to the filing of a statutory claim asserting
deliberate intention1 by the respondent Richard Simmons. The first question involves an
issue of statutory interpretation; the second query seeks clarification regarding the evidentiary
effect of Roberts v. Consolidation Coal Co.,2 and the third inquiry pertains to the evidentiary
effect of a ruling that Mr. Simmons is eligible for workers’ compensation benefits. We will
answer each of the certified questions in turn.
I. Factual and Procedural Background
The facts of this case, taken from the trial court’s order, are largely undisputed.
Mr. Simmons was injured on April 9, 2004, in Portsmouth, Ohio, while engaged in certain
activities at an apartment complex that was being demolished by the petitioner Master
Mechanical Insulation, Inc. (“Master Mechanical”). Master Mechanical had a contract to
perform asbestos abatement activities at the site. As a member of the Asbestos Worker’s
Union Local 207, Mr. Simmons was employed periodically by Master Mechanical. Prior to
the date of the injury at issue, Mr. Simmons had last worked at this site on April 6, 2004.
1
See W.Va. Code § 23-4-2(d)(2)(ii) (2010).
2
208 W.Va. 218, 539 S.E.2d 478 (2000).
1
On Thursday, April 8, 2004, after having completed a forty-hour work week,
Mike Plants,3 a supervisor for Master Mechanical, telephoned the chief supervisor, Richard
Meckstroth, to discuss additional work in need of completion that week. During that
conversation, Mr. Plants told Mr. Meckstroth that since two workers4 were being sent to
Portsmouth the next day to prepare for the following week’s work, he would travel to the site
to confirm that everything was in order.5 When the telephone conversation ended, Mr.
Simmons asked Mr. Plants if he could ride with him to the Portsmouth job site.
After Mr. Simmons and Mr. Plants arrived at the job site on Friday, April 9,
2004, Mr. Simmons helped unload supplies. Neither Mr. Simmons nor Mr. Plants were paid
for any work they performed at the Portsmouth job site on that date.6 The two Master
Mechanical employees who were assigned to work at the Portsmouth job site on April 9,
2004, were Joe Plants and Eddie Borden. At some point, Mike Plants had a discussion with
Joe Plants, Eddie Borden, and Richard Simmons. Mike Plants told Joe Plants to remove a
decontamination unit that was in Building B of the work site and relocate it in Building C.
3
Mr. Plants is also a member of the Asbestos Worker’s Union; he is paid by the hour
and is owed overtime when appropriate.
4
Joe Plants and Eddie Borden.
5
On occasion, Mr. Plants performed work-related activities without remuneration for
Master Mechanical.
6
According to the trial court’s findings of fact, Joe Plants and Mike Plants
occasionally performed work-related activities for Master Mechanical without pay.
2
After Mike Plants instructed Joe Plants to retrieve the decontamination unit
located in Building B, Mr. Simmons accompanied Joe Plants to Building B. The unit was
located on the second floor balcony, which was in excess of ten feet off the ground. The
railings on the balcony had been removed for purposes of the work at issue. Mr. Simmons
went to the second floor of the building to remove the decontamination unit while Mr. Plants
remained on the ground level. The plan was for Mr. Simmons to push the unit over the edge
of the second floor.7 In the process of pushing the unit, Mr. Simmons fell off the edge of the
balcony and suffered injuries as a result of the fall.
Mr. Simmons filed a workers’ compensation claim for his injuries and the
claim was denied. The denial of benefits was upheld by the Office of Judges and the Board
of Review. On September 19, 2008, this Court found that the injuries sustained by Mr.
Simmons were compensable under the West Virginia Workers’ Compensation Act. Upon
this finding of compensability, Mr. Simmons amended his previously-filed negligence action
and asserted a deliberate intent claim against Master Mechanical.8
By order entered on October 16, 2012, the circuit court certified the following
questions:
7
The unit was situated at least ten feet from the edge of the balcony.
8
Mr. Simmons dismissed his negligence count.
3
1. Is Simmons’ claim against Master Mechanical governed by
the 2005 amendment to the deliberate intent statute, W.Va. Code
§ 23-4-2(d)(2)(ii), pursuant to Roney v. Gencorp, 431 F. Supp. 2d
622 (S.D. W.Va. 2006) and Corley v. Eastern Assoc. Coal
Corp., 2009 U.S. Dist. LEXIS 22080 (N.D. W.Va. 2009)?
Circuit Court’s Answer: Yes.
2. In light of the Supreme Court of Appeals’ decision in
Roberts v. Consolidation Coal Co., 539 S.E.2d 478 (W.Va.
2000) and the facts as set forth above, is an employer prohibited
from introducing evidence or testimony, or arguing that an
employee’s conduct in the performance of the work for the
employer was the proximate cause of the plaintiff’s injury?
Circuit Court’s Answer: Yes.
3. In light of the Supreme Court’s ruling of September 19, 2008
that Simmons’ injury was compensable under the West Virginia
Worker’s Compensation Act, is Master Mechanical precluded
from arguing that Simmons was at the site of his own volition,
and voluntarily agreed to remove the decontamination unit from
the second floor of Building B?
Circuit Court’s Answer: Yes.
II. Standard of Review
That our review is plenary is well-established. See State v. Bostic, 229 W.Va.
513, 518, 729 S.E.2d 835, 840 (2012). In syllabus point one of Gallapoo v. Wal-Mart
Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996), we held: “The appellate standard of
review of questions of law answered and certified by a circuit court is de novo.” We proceed
to determine whether the circuit court committed error by answering each of the certified
questions in the affirmative.
4
III. Discussion
A. Applicability of 2005 Amendments
During the 2005 West Virginia legislative session, certain amendments were
enacted to the “deliberate intent” statute. See 2005 W.Va. Acts, ch. 248 (eff. July 1, 2005).
Included in the statutory changes was language by which the requisite showing of an
employer’s “subjective realization” of an unsafe working condition was altered to require
evidence of the employer’s “actual knowledge” of an alleged unsafe working condition. See
W.Va. Code § 23-4-2(d)(2)(ii)(B) (2005). The Legislature expressly provided that the 2005
amendments applied to “all injuries occurring and all actions filed on or after the first day of
July, Two Thousand Five.” Id. at § 23-4-2(f). Seeking to come within the pre-2005
amendment standards, Mr. Simmons argues that the Legislature intended that the new
language would be applied prospectively and only to those cases where both the injury and
the filing of the civil action occur after July 1, 2005.
In support of his position, Mr. Simmons suggests that the use of the term “and”
indicates that the two specified occurrences–“injuries occurring” and “actions filed”–must
coexist to invoke the provisions of the amended statute. W.Va. Code § 23-4-2(f). As the
injury at issue occurred prior to July 1, 2005, Mr. Simmons argues that the 2005 amendments
are not applicable to his case. Relying on the statutory maxim that every word chosen must
be accorded specific meaning, he maintains that the circuit court erred in deciding that either
5
the injury or the filing of the action could independently trigger the application of the 2005
amendments. See State ex rel. City of Huntington v. Lombardo, 149 W.Va. 671, 698, 143
S.E.2d 535, 551 (1965) (“A cardinal rule of statutory construction is that significance and
effect must, if possible, be given to every section, clause, word or part of a statute.”).
To illustrate his point, Mr. Simmons refers to a decision of this Court in which
we addressed the significance of the inclusion of the term “and” within another workers’
compensation statute. In Emmel v. State Compensation Director, 150 W.Va. 277, 145 S.E.2d
29 (1965), we discussed the burden imposed on a workers’ compensation claimant to prove
that he/she sustained an injury both in the course of and resulting from his/her employment.
As the Court explained, “[t]he two phrases, ‘in the course of’ and ‘resulting from’ are not
synonymous and both elements must concur in order to make a claim compensable.” Id. at
281, 145 S.E.2d at 32. Given the unmistakable emphasis in Emmel on the conjunctive nature
of the term “and,” Mr. Simmons posits that the statutory language at issue in this case should
be similarly applied in the conjunctive rather than the disjunctive.
In response, Master Mechanical maintains that the conjunctive meaning of
“and” is met by virtue of the fact the 2005 amendments apply to two separate events: (1)
injuries that occur after July 1, 2005, and (2) claims that are filed after July 1, 2005,
regardless of when the injury occurred. Rather than reading the statutory language in a
6
precedent condition fashion as suggested by Mr. Simmons, the statute need only be read as
pertaining to both situations specified above. That this interpretation is logical is easily
demonstrated.
Given that the effective date of the statutory amendments at issue is the same
date chosen by the Legislature to implement the changes, it is logical to assume that the
Legislature sought to apply the new provisions to all “deliberate intent” actions where the
injuries occurred post July 1, 2005, as well as those actions that were filed on that date or
later but involved injuries which occurred pre-amendment. In this fashion, the Legislature
brought every deliberate intent action that was filed after July 1, 2005, under the new law.
Mr. Simmons’ argument that the conjunctive “and” requires that both events must take place
post July 1, 2005, fails because there is no common word or phrase to which both events
relate. In illustration, the term employment in the phrase “both in the course of and resulting
from his employment” at issue in Emmel clearly pertained to both parts of the clause. In this
case, however, the use of the term “and” is used only in the sense of providing an additional
factual scenario that may invoke the amended statutory language rather than identifying a
necessary element required to establish a statutory claim. This distinction is critical.
Upon a reasoned consideration of the position advanced by Mr. Simmons, we
wholly reject his contention that the Legislature intended for its 2005 amendments to affect
7
only those cases in which both the injury and the filing of the action occurred after July 1,
2005. Accordingly, we hold that the language set forth in West Virginia Code § 23-4-2(f)
(2005), which addresses the implementation of statutory amendments enacted to West
Virginia Code § 23-4-2 during the 2005 session of the Legislature, pertains to “deliberate
intent” cases in which the injuries occurred after July 1, 2005, and also to actions that are
filed on or after July 1, 2005. Our decision on this issue is in accord with the circuit court’s
affirmative response to the first certified question.9
B. Relevance of Employee’s Conduct
Mr. Simmons seeks to prevent Master Mechanical from introducing any
evidence at trial with regard to his conduct at the Portsmouth job site on the date of his
injury. As support for his position, he looks to this Court’s holding in syllabus point eight
of Roberts v. Consolidation Coal Co., 208 W.Va. 218, 539 S.E.2d 478 (2000), that “[w]hen
an employee asserts a deliberate intention cause of action against his/her employer, pursuant
to W.Va. Code §§ 23-4-2(b)-(c) (1991) (Cum. Supp. 1991), the employer may not assert the
employee’s contributory negligence as a defense to such action.” Based solely on this point
of law, Mr. Simmons argues that his conduct has no probative value with regard to the five
9
Two federal courts in this state have interpreted the statutory provision at issue
consistent with the decision we reach in this case. See Corley v. Eastern Ass’d Coal Corp.,
2009 WL 723120 (N.D. W.Va. 2009); Roney v. Gencorp., 431 F. Supp. 2d 622 (S.D. W.Va.
2006).
8
statutory elements necessary to prove a “deliberate intent” action. See W.Va. Code § 23-4­
2(d)(2)(ii).
We revisited the statutory origins of our workers’ compensation system in
Roberts, observing that “the right to workmen’s compensation benefits is based wholly on
statutes, [and] in no sense based on the common law.” 208 W.Va. at 234, 539 S.E.2d at 494
(quoting Bounds v. State Workmen’s Comp. Comm’r, 153 W.Va. 670, 672, 172 S.E.2d 379,
383 (1970)). Within the statute that creates a “deliberate intent” action is the following
statement of legislative intent concerning the demarcation between common law and our
workers’ compensation laws:
It is declared that enactment of this chapter and the
establishment of the workers’ compensation system in this
chapter was and is intended to remove from the common law
tort system all disputes between or among employers and
employees regarding the compensation to be received for injury
or death to an employee except as expressly provided in this
chapter and to establish a system which compensates even
though the injury or death of an employee may be caused by his
or her own fault or the fault of a coemployee; that the immunity
established in sections six [§ 23-3-6] and six-a [§ 23-3-6a],
article two of this chapter is an essential aspect of this workers’
compensation system; that the intent of the Legislature in
providing immunity from common lawsuit was and is to protect
those immunized from litigation outside the workers’
compensation system except as expressly provided in this
chapter; that, in enacting the immunity provision of this chapter,
the Legislature intended to create a legislative standard for loss
of that immunity of more narrow application and containing
more specific mandatory elements than the common law tort
system concept. . . .
9
W.Va. Code § 23-4-2(d)(1) (emphasis supplied).
In considering whether the affirmative defense of contributory negligence
could be asserted in Roberts, we recognized that there are only two legislated defenses to a
workers’ compensation claim: intoxication and self-inflicted injury. See 208 W.Va. at 236,
539 S.E.2d at 496. As a result, we decided against the “adoption, by way of implication, of
additional defenses sounding in contributory negligence,” reasoning that this “would be
inconsistent with the definite legislative intent ‘to establish a system which compensates
even though the injury or death of an employee may be caused by his own fault.’” Id.
(quoting W.Va. Code § 23-4-2(d)(1)).10
In view of our holding in Roberts that the defense of contributory negligence
may not be asserted in a “deliberate intent” action, Mr. Simmons contends that evidence of
an employee’s conduct with relation to the work place injury is barred. Consistent with his
position that the facts relevant to proximate causation are not relevant to his “deliberate
intent” action, Mr. Simmons seeks to prevent any evidence of his conduct from being
admitted at trial. In making these arguments, Mr. Simmons not only confuses the distinction
between liability and causation but he also misapprehends the statutory design of a
10
When Roberts was issued, the quoted statutory language appeared at subsection
(c)(1); to avoid confusion we identify the current location of the language–subsection (d)(1).
10
“deliberate intent” action.
As an initial matter, we observe that the legislative design of providing a
system of recovery even in the occurrence of a self-caused injury11 still succeeds even when
an employee’s actions are considered for purposes of a “deliberate intent” action. Under the
statutory scheme, the employee’s actions12 are not relevant for purposes of the workers’
compensation benefits provided by statute. See W.Va. Code § 23-4-2(a). When, however,
the employee or other statutorily-specified representative decides to seek recovery for “any
excess of damages over the amount received or receivable” in workers’ compensation by
asserting a “deliberate intent” action, the right of additional recovery is wholly controlled by
the five-prong standard provided for establishing this statutory claim. W.Va. Code § 23-4­
2(c); -2(d)(2)(ii). In specific contrast to our no-fault system of workers’ compensation, the
elements of a “deliberate intent” action suggest that an employee’s actions may be relevant
to his/her right of recovery.
Through his attempts to exclude evidence of his actions, Mr. Simmons
overlooks the statutorily-specified elements of the “deliberate intent” action that clearly
invite and, in some instances, may actually require a consideration of an employee’s actions
11
We are not referring to instances of self-inflicted injury. See W.Va. Code § 23-4­
2(a).
12
Barring self-inflicted injury or alcohol-induced injury. See W.Va. Code § 23-4-2(a).
11
relevant to the resulting injuries. The first prong of the five-part “deliberate intent” standard
requires proof “[t]hat a specific unsafe working condition existed in the workplace which
presented a high degree of risk and a strong probability of serious injury or death.” W.Va.
Code § 23-4-2(d)(2)(ii)(A). Mr. Simmons contends that he need only submit evidence to
show that he was “working on an unprotected second floor balcony without fall protection
. . . to establish part (A)” and that his “conduct is irrelevant with respect to the unsafe
working condition in this case.” We disagree.
Both before and since the issuance of our Roberts decision, this Court has made
clear that an employee cannot create the unsafe working condition that is at the center of his
“deliberate intent” cause of action. In Deskins v. S.W. Jack Drilling Co., 215 W.Va. 525, 600
S.E.2d 237 (2004), we recognized the role that the employee played with regard to the
alleged unsafe working condition:
there was no unsafe working condition in this case until the
appellant moved in between the two pieces of equipment as they
were being pushed together. In other words, the specific unsafe
working condition only existed when the appellant went into the
area between the pipe rack and the pipe tub as the equipment
was being moved into position by the dozer. The appellees
[employer] had no knowledge that the appellant went into the
dangerous area as he had been seen moving away from the
equipment after his supervisor instructed him to do so. As the
circuit court noted, “the specific unsafe working condition . . .
occurred within seconds after he was instructed to, and did,
move to a safe area.”
Id. at 531, 600 S.E.2d at 243.
12
Seeking to characterize Deskins as inapposite, Mr. Simmons argues that “[t]he
focus in Deskins was not on the employee’s conduct, but on the employer’s.” While the
element of the five-prong “deliberate intent” test that the circuit court examined was the
employer’s subjective realization of a specific unsafe working condition,13 the effect the
employee’s actions had with regard to the creation of the unsafe working condition was
pivotal to the court’s grant of summary judgment in favor of the employer. In affirming that
ruling, this Court underscored the interplay between the employee’s actions in creating a
“sudden” unsafe working condition and the ability of the employer to “realize and appreciate
the risk.” 215 W.Va. at 531, 600 S.E.2d at 243.
Similarly, in Blevins v. Beckley Magnetite, Inc., 185 W.Va. 633, 408 S.E.2d
385 (1991), this Court considered the fact that the employee’s own actions in removing a
gate installed as a safety mechanism near an operating conveyor belt created the very unsafe
working condition for which he sought recovery.14 Id. at 639-40, 408 S.E.2d at 391-92. We
upheld the trial court’s grant of judgment notwithstanding the verdict in the employer’s
favor based on the grounds that the jury had not been presented with sufficient evidence to
establish the employer had a subjective realization and appreciation of an unsafe working
13
In 2005, the Legislature amended the statute to replace “subjective realization” with
“actual knowledge.” See 2005 W.Va. Acts, ch.248; W.Va. Code § 23-4-2(d)(2)(ii)(B)(2005).
14
We found that “[a] specific unsafe working condition . . . only existed when the
appellant went into the guarded area, without first turning off the equipment, . . . failing to
comply with safety procedures.” 185 W.Va. at 639, 408 S.E.2d at 391.
13
condition. Id. at 640-41, 408 S.E.2d at 392-93. Seeking to minimize the significance of the
employee’s actions in that decision, Mr. Simmons propounds that Blevins is inapplicable
because there was no discussion about proximate causation.15
Mr. Simmons’ attempt to distinguish our decisions in Deskins and Blevins
based on which of the five statutory elements were analyzed for purposes of considering the
employee’s actions is unavailing. To suggest that an employee’s actions are relevant only
for purposes of establishing the existence of an unsafe working condition and the employer’s
awareness of that condition, as it was in both Deskins and Blevins, but not for purposes of
proximate causation is altogether illogical. The fact that the proximate causation prong is
expressly tied to the “specific unsafe working condition” by statute further demonstrates the
fallacy of this contention. W.Va. Code § 23-4-2(d)(2)(ii)(E); see supra note 15.
15
The fifth factor required to establish a “deliberate intent” action demands a showing
that the employee “suffered serious compensable injury or compensable death . . . as a direct
and proximate result of the specific unsafe working condition.” W.Va. Code § 23-4­
2(d)(2)(ii)(E).
14
The law is clear that, as part of a “deliberate intent” action, a jury is entitled
to hear evidence of whether an employee’s actions created the alleged specific unsafe
working condition as well as whether an employer had actual knowledge of the alleged
specific unsafe working condition. See W.Va. Code § 23-4-2(d)(2)(ii) (mandating jury
determination of five elements of “deliberate intent” claim); Deskins, 215 W.Va. at 531, 600
S.E.2d at 243; Blevins, 185 W.Va . at 641, 408 S.E.2d at 393. Master Mechanical correctly
asserts that this Court’s ruling in Roberts with regard to the non-availability of the defense
of contributory negligence in a “deliberate intent” action has no bearing on the elements that
are required to be established in such a case. Absent successful demonstration of all five of
the statutory elements provided in West Virginia Code § 23-4-2(d)(2)(ii)(A)-(E), an
employee cannot recover under a theory of “deliberate intent.” W.Va. Code § 23-4­
2(d)(2)(iii)(B) (providing that failure to prove one or more statutory factors specified in
subsection (d)(2)(ii)(A)-(E) mandates summary judgment or directed verdict); Syl. Pt. 2,
Helmick v. Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991) (“To establish
‘deliberate intention’ in an action under W.Va. Code § 23-4-2(c)(2)(ii) (1998), a plaintiff or
cross-claimant must offer evidence to prove each of the five specific statutory
requirements.”); accord Marcus v. Holley, 217 W.Va. 508, 520, 618 S.E.2d 517, 529 (2005)
(recognizing that “deliberate intent” plaintiff “must make a prima facie showing of dispute
on each of the five factors” to withstand summary judgment motion) (citing Mumaw v. U.S.
Silica Co., 204 W.Va. 6, 9, 511 S.E.2d 117, 120 (1998)).
15
The position advocated by Mr. Simmons would amount to a judicial rewriting
of the standard expressly legislated for proving a “deliberate intent” claim. If we adopted
his position and prevented an employer from introducing evidence clearly relevant to the
issues of the alleged specific unsafe working condition and the resultant injury, we would
be eliminating the critical element of causation provided in the statute. See W.Va. Code §
23-4-2(d)(2)(ii)(E). Under the five-prong standard adopted to identify the limited instances
in which a subscribing employer’s immunity is statutorily abrogated, the issue of an
employee’s conduct is clearly relevant for purposes of determining, inter alia, the existence
of a specific unsafe working condition; the employer’s actual knowledge of that specific
unsafe working condition; and whether the employee’s injuries were the direct and proximate
result of that specific unsafe working condition. Nothing in this Court’s decision in Roberts
prevents the employer from introducing evidence that is relevant to the five statutory factors
necessary to prove a statutory claim of “deliberate intent.” Accordingly, we hold that an
employer in a “deliberate intent” action brought pursuant to West Virginia Code § 23-4­
2(d)(2)(ii) may introduce evidence that is relevant to the issues of whether an employee’s
conduct created a specific unsafe working condition; whether the employer had actual
knowledge of that alleged specific unsafe working condition; and whether the injuries at
issue were the proximate result of that specific unsafe working condition. Accordingly, we
answer the second certified question in the negative.
16
C. Evidence Relating to Employee’s Work Site Presence
Through the final certified question, Mr. Simmons seeks to prevent Master
Mechanical from introducing evidence at trial with regard to the voluntary nature of his
completion of work at the Portsmouth site on the date of his injury. We find it necessary to
reframe the third certified question to remove language which pertained to whether Master
Mechanical was prohibited from arguing that Mr. Simmons was at the work site of his own
volition.16 See City of Fairmont v. Retail, Wholesale, & Dep’t Store Union, 166 W.Va. 1,
3-4, 283 S.E.2d 589, 590 (1980) (recognizing that this Court has “traditionally maintained
that upon receiving certified questions we retain some flexibility in determining how and to
what extent they will be answered”). Accordingly, we address the following question:
In light of the Supreme Court’s ruling of September 19, 2008,
that Mr. Simmons’ injury was compensable under the West
Virginia Worker’s Compensation Act, is Master Mechanical
precluded from arguing that Mr. Simmons voluntarily agreed to
remove the decontamination unit from the second floor of
Building B?
Because an award of workers’ compensation benefits requires proof that the
16
To the extent that the third certified question raised the issue of whether Master
Mechanical is precluded from introducing any evidence that would conflict with the
predicate finding necessary for an award of workers’ compensation–that Mr. Simmons was
acting in the course of his employment at the time of his injury–that issue has been resolved
with this Court’s September 19, 2008, compensability ruling. The fact that Mr. Simmons
voluntarily traveled to the work site on that day simply has no bearing on the issue of whether
he can establish the required elements of a “deliberate intent” claim.
17
employee sustained injury in the course of and resulting from his employment,17 Mr.
Simmons argues that his benefit award necessarily serves as a bar to any evidence Master
Mechanical seeks to introduce pertaining to his presence and actions at the work site.18 He
contends that his “purpose or motivation for being on the worksite has no bearing on
whether an unsafe working condition existed and no bearing on what MMI [Master
Mechanical] knew about.”
Responding to these arguments, Master Mechanical asserts that the finding that
his injury comes within the parameters of basic workers’ compensation is wholly distinct
from his attempt to recover additional compensation for the alleged “deliberate intent” of
his employer relative to that injury. Compensability determinations made pursuant to West
Virginia Code §§ 23-4-1 to -1g (2010) do not require determinations as to the existence of
unsafe working conditions; an employer’s knowledge of those unsafe working conditions;
whether an employer intentionally exposed an employee to an unsafe working condition; or
whether the injury resulted from a specific unsafe working condition. In short, the
compensability requirements set forth in section one, which are relatively easy to meet, stand
in stark contrast to the five-part “deliberate intent” standard set forth in section two. Cf.
W.Va. Code §§ 23-4-1 to -1g to 23-4-2(d)(2)(ii). Master Mechanical argues, and we agree,
17
See Syl. Pt. 1, Barnett v. State Workmen’s Comp. Comm’r, 153 W.Va. 796, 172
S.E.2d 698 (1970).
18
See supra note 16.
18
that the drastically different standards of recovery prevent the issuance of a compensability
ruling for basic workers’ compensation from having a preclusive effect on the introduction
of evidence in a “deliberate intent” action.
Given the clearly distinct type of recovery that the Legislature envisioned in
fashioning the “deliberate intent” standard–one that exists only upon proof of each of those
five specified elements–there is absolutely no basis for concluding that a compensability
ruling has any evidentiary effect with regard to the proof of those unique statutory elements.
Just as we refused to judicially rewrite the five-prong standard to prevent the introduction
of evidence regarding an employee’s actions, we similarly will not refashion the standard
to prohibit relevant evidence bearing on the issue of whether “the employer . . . intentionally
thereafter exposed an employee to the specific unsafe working condition.” W.Va. Code §
23-4-2(d)(2)(ii)(D). Master Mechanical has the right to offer evidence to contradict Mr.
Simmons’ anticipated testimony that he was intentionally directed and exposed to an unsafe
working condition. Were we to rule otherwise, we would be lessening the statutory burden
of proof required for recovery in a “deliberate intent” action. See W.Va. Code § 23-4­
2(d)(2)(iii)(B). Accordingly, we respond to the third certified question in the negative.
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IV. Conclusion
Based on the foregoing, each of the questions posed by the Circuit Court of
Cabell County in its order of October 16, 2012, has been answered: the first in the positive;
the second in the negative; and the third, as reframed, in the negative.
Certified questions answered.
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