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



       1
       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



       2
        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.

                                              2

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

                                              3

                     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.

                                             4
