Georgette A. Morton v. W. Va. Office of Insurance Commissioner/Seneca Health Services ( 2013 )

No. 11-1382 Georgette A. Morton v. West Virginia Office of Insurance
Commissioner and Seneca Health Services, Inc.
FILED
October 4, 2013
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Davis J., dissenting:
In this proceeding, the petitioner was injured during the course of her
employment. The majority opinion has determined that merely because the petitioner was
helping a co-worker1 lift a personal box when she was injured, the petitioner’s injury was not
covered by our workers’ compensation laws. I find the majority’s decision to be legally
unsound. Therefore, for the reasons set out below, I dissent.
The fact section of the majority opinion points out that the box that the
petitioner was helping the co-worker move “had been left in petitioner’s office.” This critical
fact is never considered in the majority opinion’s analysis. That is, the co-worker’s box,
which was large and contained maternity clothes, was not in some area of the employment
premises that had no direct relationship with the petitioner. The petitioner’s workspace was
directly impacted by the presence of the large box. It is obvious that removal of the large box
from the petitioner’s workspace benefitted the employer by allowing the petitioner to have
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The majority opinion points out that the co-worker was a contract employee who did
not work in the office with the petitioner.
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all the space she needed to efficiently perform the tasks she was assigned.2 The petitioner’s
efforts to help the co-worker remove the box “[are] not a frolic of her own but a condition
of her employment–an obstacle in the path of her efforts to further her employer’s business
objectives[.]” State ex rel. Wyoming Workers’ Comp. Div. v. Espinoza, 924 P.2d 979, 981
(Wyo. 1996).
The court in Clodgo v. Rentavision, Inc., 701 A.2d 1044 (Vt. 1997), has
summed up the type of employee conduct in this case as follows:
An accident occurs in the course of employment when it was
within the period of time the employee was on duty at a place
where the employee was reasonably expected to be while
fulfilling the duties of the employment contract. Thus, while
some [personal conduct] among employees during work hours
can be expected and is not an automatic bar to compensation,
the key inquiry is whether the employee deviated too far from
his or her duties.
Clodgo, 701 A.2d at 1046 (citation omitted). In the instant case, it simply cannot be said that
the petitioner deviated too far from her job duties by helping a co-worker remove a large box
from her workspace. “[T]o hold that anything but the strictest adherence and attention to the
employer’s work prevents recovery of compensation would be, in the first instance,
unrealistic, and in the second, outside of established principles of workers’ compensation
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Equally important, there was no evidence showing that the employer had a policy that
prohibited employees from moving objects that could impact the efficient performance of
their work.
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law.” Varela v. Fisher Roofing Co., Inc., 567 N.W.2d 569, 575 (Neb. Ct. App. 1997).
The majority opinion admits that this case was a close call. The majority
further suggests that if the rule of liberality could be applied, the outcome of the case might
be different. Although the majority opinion is correct in noting that the Legislature abolished
the rule of liberality, the majority neglected to consider the application of W. Va. Code § 23­
4-1g(a) (2003) (Repl. Vol. 2010) to the facts of this case. This statute has been explained as
follows:
In its attempt to abolish the rule of
liberality, the legislature failed to understand how
the rule operates. This point is made clear from a
review of the 2003 enactment of West Virginia
Code section 23-4-1g(a). This provision states in
relevant part:
If, after weighing all of the evidence regarding an
issue in which a claimant has an interest, there is
a finding that an equal amount of evidentiary
weight exists favoring conflicting matters for
resolution, the resolution that is most consistent
with the claimant’s position will be adopted.
A plain reading of West Virginia Code
section 23-4-1g(a) unquestionably shows that it
embodies the substance of the rule of liberality.
. . ..
The . . . statute demands that the employee
prevail whenever evidence is equally balanced.
. . . This requirement is the essence of the rule of
liberality. That is, the rule of liberality “dictates
that the claimant be given the benefit of all
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reasonable inferences the record will allow; and
any conflicts must be resolved in favor of the
claimant.” Javins v. Workers’ Comp. Comm’r,
320 S.E.2d 119, 130 (W. Va. 1984). See also
Workman v. Workmen’s Comp. Comm’r, 236
S.E.2d 236 (W. Va. 1977); Myers v. State
Workmen’s Comp. Comm’r, 239 S.E.2d 124(W. Va. 1977); Pennington v. State Workmen’s
Comp. Comm’r, 175 S.E.2d 440 (W. Va. 1970);
McGeary v. State Comp. Dir., 135 S.E.2d 345(W. Va. 1964); Demastes v. State Comp. Comm’r,
165 S.E. 667 (W. Va. 1932).
Robin Jean Davis and Louis J. Palmer, Jr., Workers’ Compensation Litigation in West
Virginia: Assessing the Impact of the Rule of Liberality and the Need for Fiscal Reform,”
107 W. Va. L. Rev. 43, 102 (2004) (footnote omitted, citing referenced quoted).
Insofar as the evidence in this case presented a close call as to whether the
petitioner’s injury occurred during the course of, and resulted from, her employment, W. Va.
Code § 23-4-1g(a) required that the case be resolved in favor of the petitioner.
In the final analysis, an employee would be foolish to show kindness toward
a fellow employee by assisting a fellow employee with anything that the employer has not
specifically authorized. Simply put, the majority opinion will have a chilling effect on
employee relationships and morale throughout the State.
In view of the foregoing, I respectfully dissent.
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