No. 33337 – Mary H. Wetzel, individually and as executrix of the Estate of Robert H.
Wetzel, deceased v. Employers Service Corporation of West Virginia
December 5, 2007
Maynard, J., concurring:
released at 10:00 a.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
I agree with the majority opinion but write separately to briefly address some
of the issues raised by my colleagues in their dissenting opinions.
The facts and the law of this case are simple. The facts concern a disagreement
between an employee, Mr. Wetzel, and ESC, the workers’ compensation administrator of
self-insured employer Chemical Leaman, over the denial of payments for certain medical
treatments based on ESC’s determination that the treatments did not involve a compensable
injury. The law of this case is likewise simple. It is indisputable that under the workers’
compensation system created by the Legislature, self-insured employers and their agents
enjoy immunity from suit with a few exceptions. This Court has recognized that the
immunity provided by the workers’ compensation system “is not easily forfeited.” State ex
rel. Abraham Linc. Corp. v. Bedell, 216 W.Va. 99, 104, 602 S.E.2d 542, 547 (2004).
Under the Act, an employer who is otherwise entitled to
immunity under § 23-2-6 may lose immunity in only one of two
ways: (1) by defaulting in payments required by the Act or
otherwise failing to comply with the provisions of the Act, or (2)
by deliberately intending to produce injury or death to the
Abraham Linc., id., quoting Smith v. Monsanto Co., 822 F.Supp. 327, 330 (S.D.W.Va. 1992).
Because the instant dispute arose from a work-related injury and payment for costs associated
with the injury are governed by the workers’ compensation act, it is logical that the majority
would begin with the presumption that ESC is immune and then proceed to determine
whether any of the exceptions to immunity apply.
My dissenting colleagues would have us believe that ESC lost its immunity
pursuant to W.Va. Code § 23-2-8 by defaulting on payments of compensation and expenses
to injured employees. In other words, they say that denying several of Mr. Wetzel’s requests
for payments constituted a default of required payments. This is incorrect. There is
absolutely nothing in our statutory or case law that provides that when a self-insured
employer or its agent denies a request for payment based on its determination that the
medical care was not necessary to treat a compensable injury, the employer or its agent
automatically loses its immunity. Such a proposition is wholly untenable. If such were the
case, self-insured employers or their agents would be required to pay all requests regardless
of their validity for fear of losing statutory immunity and being forced to defend a bad faith
In fact, employers and their agents are required to pay only valid workers’
compensation related payment requests. Whether or not a specific payment request is valid
is often a matter of dispute that must be settled after the claimant administratively protests
the payment denial, a remedy of which Mr. Wetzel did not avail himself.
My dissenting colleagues also argue that several courts across the nation have
held that employers, workers’ compensation insurers, and workers’ compensation claims
handlers are not immune from actions that seek damages caused by alleged bad faith refusal
to pay benefits. However, this Court has never recognized such a bad faith claim nor is the
existence of such a claim apparent in our workers’ compensation act. Also, with regard to
the decisions of other courts, “in actions seeking to impose tort liability on an insurer for
wrongful delay or refusal to make benefit payments, the courts frequently have held that the
action was barred by the compensation statute as a whole, or, more particularly, by the
statute’s exclusive remedy provision or its penalty provision.” Michael A. Rosenhouse,
“Tort Liability of Worker’s Compensation Insurer for Wrongful Delay or Refusal to Make
Payments Due, 8 ALR4th 902 (1981) (footnotes omitted). Clearly, the majority opinion is
consistent with the law of this Court, statutory law, and the decisions of many other courts.
In sum, despite the views of my dissenting colleagues, I believe the majority
opinion is well reasoned and conforms to both the spirit and letter of the law as expressed in
our workers’ compensation act. Accordingly, I concur.