          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                 September 2013 Term

                                                                          FILED
                                                                     October 4, 2013
                                      No. 11-1382                      released at 3:00 p.m.
                                                                     RORY L. PERRY II, CLERK

                                                                   SUPREME COURT OF APPEALS

                                                                        OF WEST VIRGINIA




                             GEORGETTE A. MORTON,
                              Claimant Below, Petitioner

                                           v.


         WEST VIRGINIA OFFICE OF INSURANCE COMMISSIONER and

                    SENECA HEALTH SERVICES, INC.,

                              Respondents




               Appeal from the Workers’ Compensation Board of Review

                            Board of Review No. 2045565

                               Claim No. 2011008468


                                      AFFIRMED



                            Submitted: September 24, 2013

                               Filed: October 4, 2013


Reginald D. Henry, Esq.                          Marion E. Ray, Esq.
Beckley, West Virginia                           BOWLES RICE MCDAVID GRAFF &
Attorney for Petitioner                          LOVE LLP
                                                 Charleston, West Virginia
                                                 Attorney for Respondent Seneca Health
                                                 Services, Inc.


The Opinion of the Court was delivered PER CURIAM.


JUSTICE DAVIS dissents and reserves the right to file a separate opinion.

                            SYLLABUS BY THE COURT


             1.      “‘In order for a claim to be held compensable under the Workmen’s

Compensation Act, three elements must coexist: (1) a personal injury (2) received in the

course of employment and (3) resulting from that employment.’         Syllabus Point 1,

Barnett v. State Workmen’s Compensation Commissioner, 153 W.Va. 796, 172 S.E.2d

698 (1970).” Syl. Pt. 1, Williby v. W. Va. Office of the Ins. Comm’r, 224 W. Va. 358, 686

S.E.2d 9 (2009).



             2.     “In determining whether an injury resulted from claimant’s

employment, a causal connection between the injury and employment must be shown to

have existed.” Syl. Pt. 3, Emmel v. State Comp. Dir., 150 W. Va. 277, 145 S.E.2d 29

(1965).



             3.     “Whether an injury occurs . . . resulting from the employment so as

to be compensable under the workmen’s compensation act depends upon the particular

facts in each case.” Syl. Pt. 2, in part, Emmel v. State Comp. Dir., 150 W. Va. 277, 145

S.E.2d 29 (1965).




                                            i
Per Curiam:



              Petitioner Georgette Morton (hereinafter “petitioner”) appeals the

September 14, 2011, order of the Workers’ Compensation Board of Review (“BOR”). In

that order, the BOR affirmed the Office of Judges’ (“OOJ”) decision which affirmed the

claims administrator’s rejection of Ms. Morton’s claim because her injury was not

attributable to an injury or disease received “in the course of and resulting from” her

employment as required by West Virginia Code § 23-4-1(a) (2008). Upon careful review

of the briefs, the appendix record, the arguments of the parties, and the applicable legal

authority, we find that the BOR’s decision was neither in clear violation of any

constitutional or statutory provision, the result of erroneous conclusions of law, nor

based upon a material misstatement or mischaracterization of the evidentiary record;

therefore, we affirm the BOR’s order.



                      I. FACTS AND PROCEDURAL HISTORY

               Petitioner is employed by respondent Seneca Health Services, Inc.

(hereinafter “Seneca”) as a secretary.1 On September 13, 2010, petitioner injured her




       1
         This job title is derived from the job description made part of the appendix
record. In her testimony, however, petitioner insisted that she is referred to as “support
staff” and not called or designated a “secretary,” although she conceded that she provided
secretarial or clerical functions as part of her duties. The “purpose” of her job as set forth
in the job description is: “[p]rovide secretarial, reception and data entry functions
necessary for accurate processing of clinical and administrative data. Provide support
staff functions which result in a positive and professional representation of Seneca.” The
                                              1

right wrist and shoulder while assisting a Seneca contract employee lift a box of

maternity clothes which had been left in petitioner’s office. The box of clothes had

apparently been loaned by the contract employee to another employee, who returned the

clothes by leaving the box in petitioner’s office for the contract employee to pick up. The

contract employee, who did not work in the office with petitioner, asked petitioner for

help in lifting and transporting the box to her vehicle. Petitioner agreed and, upon lifting

the box, lost her balance and fell backwards, injuring her right wrist and shoulder.



              The claims administrator denied the claim as not being received “in the

course of and resulting from” petitioner’s employment.         Upon appeal to the OOJ,

petitioner argued that, as “support staff,” her duties included assisting staff members in

any tasks with which they required or requested assistance and she perceived no

limitations to her duties in that regard. Petitioner conceded that the box was wholly

unrelated to Seneca’s business, that the contract worker was not her supervisor and had

never given her orders or assignments previously, and that the employer was not at fault

for her injury. Petitioner argued simply that acquiescing to any request for assistance by

another employee falls within the scope of her job duties and that the employer benefits

by having employees who “work collaboratively and cooperatively with one another.”



              Affirming the claims administrator’s denial of the claim, the OOJ found

that the employer derived no “special benefit” from the removal of the box from the

“essential functions” of the job as enumerated by Seneca are entirely clerical and include
“[o]ther duties as assigned by supervisor.” (emphasis added).
                                             2
premises and that moving the box was “a voluntary act on the part of the claimant to

assist a coworker in a personal errand.” The OOJ’s decision “[b]orrow[ed] from the

philosophy” of Williby v. West Virginia Office of the Insurance Commissioner, 224 W.

Va. 358, 686 S.E.2d 9 (2009), finding that there was no “expressed or implied

requirement that the claimant assist her coworkers in such activities of personal

convenience    notwithstanding the      claimant’s    mistaken    perception       of her job

responsibility.” The OOJ further found that “there are always logical limits to what the

claimant’s job responsibilities were with regard to assisting coworkers. To the extent that

she was assisting a coworker in a purely personal matter . . . the employer derived no

benefit from the activity[.]” The BOR affirmed the OOJ’s decision by order dated

September 14, 2011, from which order petitioner now appeals.



                             II. STANDARD OF REVIEW

              With respect to this Court’s standard of review of a decision of the BOR,

West Virginia Code § 23-5-15(c) (2005) provides, in pertinent part:

              If the decision of the board represents an affirmation of a
              prior ruling by both the commission and the Office of Judges
              that was entered on the same issue in the same claim, the
              decision of the board may be reversed or modified by the
              Supreme Court of Appeals only if the decision is in clear
              violation of constitutional or statutory provision, is clearly the
              result of erroneous conclusions of law, or is based upon the
              board’s material misstatement or mischaracterization of
              particular components of the evidentiary record. The court
              may not conduct a de novo re-weighing of the evidentiary
              record.



                                              3

However, as recognized in Justice v. West Virginia Office of the Insurance Commission,

230 W.Va. 80, 83, 736 S.E.2d 80, 83 (2012), “we apply a de novo standard of review to

questions of law arising in the context of decisions issued by the Workers’ Compensation

Appeal Board.      With the cessation of the Workers’ Compensation Commission

(“Commission”), the appeals to this judicial body are now taken from the Board of

Review.” (citations omitted). Under these intersecting standards, as pertains to the issue

presented herein, we turn to the parties’ arguments.




                                   III. DISCUSSION

              The issue presented in this case is straightforward. Petitioner contends that

the BOR erred in finding that the injury sustained while assisting her co-worker in lifting

the box of maternity clothes which was located in petitioner’s office was not “in the

course of and resulting from” her employment. She argues that although her primary

duties were clerical in nature, her formal designation as “support staff” effectively

required her to assist co-workers with any task with which they requested assistance. She

argues that the employer received a tangible benefit through the employees working

cooperatively and collegially with one another, which entailed accommodating a

reasonable request for assistance. Seneca counters that it is undisputed that petitioner’s

job title and outlined duties in no way encompass assisting employees with lifting items,

much less items of a wholly personal, non-work-related nature; therefore, her injury was

not “in the course of and resulting from” her employment. Seneca further contends that it


                                             4

is simply illogical for petitioner to suggest that she perceived no limitations to her

purported obligation to assist co-workers as part of her job duties.



              As to the elements which must be proven to establish compensability, this

Court has previously recognized that

              “[i]n order for a claim to be held compensable under the
              Workmen’s Compensation Act, three elements must coexist:
              (1) a personal injury (2) received in the course of employment
              and (3) resulting from that employment.” Syllabus Point 1,
              Barnett v. State Workmen’s Compensation Commissioner,
              153 W.Va. 796, 172 S.E.2d 698 (1970).

Syl. Pt. 1, Williby, 224 W. Va. 358, 686 S.E.2d 9. Importantly, “[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.” Emmel v. State Comp. Dir., 150 W. Va. 277, 281,

145 S.E.2d 29, 32 (1965). The distinction between the two phrases has been described as

follows: “The task of construction is made easier by breaking the phrase ‘in half, with

the “arising out of” [or “resulting from”] portion construed to refer to causal origin, and

the “course of employment” portion to the time, place, and circumstances of the accident

in relation to the employment.’” Coleman v. Cycle Transformer Corp., 520 A.2d 1341,

1343 (N. J. 1986) (quoting 1A Larson, Workmen’s Compensation Law, § 6.10 (1985)).

With respect to the requirement that an injury “result[] from” employment, this Court has

held: “In determining whether an injury resulted from claimant’s employment, a causal

connection between the injury and employment must be shown to have existed.” Syl. Pt.

3, Emmel, 150 W. Va. 277, 145 S.E.2d 29.


                                             5

               In the instant case, there is no question that petitioner’s injury occurred in

the course of employment in terms of time, place, and circumstances; therefore, the

“course of employment” prong is easily satisfied. Petitioner was on Seneca’s premises,

during her regular work hours, ostensibly tending to her duties at the time the request for

assistance in lifting the box was made. The dispute herein concerns whether her injury

was “resulting from,” that is, causally related to her employment: As well-demonstrated

by the case at bar, “[w]hether an injury occurs . . . resulting from the employment so as to

be compensable under the workmen’s compensation act depends upon the particular facts

in each case.” Syl. Pt. 2, in part, Id.



               With regard to our existing jurisprudence, Emmel is the most factually

analogous case inasmuch as it deals with an on-premises injury occasioned by a “purely

personal” activity, but suffers from some stark dissimilarities. In Emmel, the claimant

clocked out and availed himself of the on-premises taproom provided by the employer—

which was likewise made available to the general public—where he fell and struck his

head. 150 W. Va. at 279, 145 S.E.2d at 31. The employer admonished employees not to

linger in the taproom more than thirty minutes; however, claimant was there well in

excess of that when he fell. Id. Citing language from a leading treatise and without

formulating a particular rule, this Court found that there was no causal connection

between Emmel’s injury and his employment because he was not engaged in the

performance of his work duties or “something incidental thereto,” nor was he acting in



                                              6

“furtherance of the employer’s business.”2 Id. at 282, 145 S.E.2d at 32. The Court found

that Emmel’s injury was merely a “vague incident of employment.” Id. at 284, 145

S.E.2d at 34. In the instant case, petitioner was in her regular workplace during regular

work hours, making Emmel quite distinguishable.



              Even less helpful to our analysis is Williby, cited by the OOJ. Williby is a

“coming and going” case involving a claimant who was injured on her way back to the

office from a break.       Williby discusses the various exceptions to the general

compensability bar for injuries sustained while coming to or going from work including

the “special errand” exception and the “zone of employment” concept, which deals with

the place of the injury. 224 W. Va. at 363, 686 S.E.2d at 14. The OOJ in the instant case

did in fact merely “borrow” from these concepts, as they pertain to injuries sustained off

of work premises during an undisputed “break” from work and as such, are not

particularly helpful to resolution of the more narrowly-focused issue of causation

presented in the case sub judice.




       2
        The Court cited further language from the treatise noting that a worker “‘not
engaged in performing the particular duties for which he was employed, or in something
incidental thereto, is not in the course of his employment, even though he may be in the
general sphere of it[.]’” Emmel, 150 W. Va. at 282, 145 S.E.2d at 32-33.

                                            7

             Although much has been written about the terms “resulting from” and

“course of employment” in a general sense,3 several treatises have crystallized the issue

presented herein as being one of compensability for injuries sustained while engaged in

activity, the primary purpose of which is a co-employee’s personal benefit. See Larson,

supra, at § 27.01[5]. To that end, the leading treatise on workers’ compensation states

that with regard to injuries which occur while rendering “aid” to a co-employee, “[i]f the

aid takes the form of merely helping the co-employee with some matter entirely personal

to the co-employee, it is outside the course of employment, unless the deviation involved

is insubstantial.” Id.; see also 82 Am.Jur.2d Workers’ Compensation § 257 (2003)

(“Injuries received by an employee while voluntarily engaged in some activity having no

essential relation to, or connection with, the employment, and undertaken solely for the

pleasure, convenience, or benefit of the employee or a third person, are ordinarily not

compensable[.]”). On the other hand, it is also recognized that “an action done by an

employee for the benefit of himself or herself or a third person may be so related to or

connected with the employment as to make it a reasonable incident of the employment.”

82 Am.Jur.2d Workers’ Compensation § 257.



             Most of the extra-jurisdictional cases undertaking this analysis seem to fall

well to either side of this issue—either they are at least in some measure demonstrably

related to the employment (e.g., injuries occasioned by work equipment, during activities

      3
        “Few groups of statutory words in the history of law have had to bear the weight
of such a mountain of interpretation as has been heaped upon this slender foundation.”
Larson, supra, at § 6.10.
                                            8

which mutually and tangibly benefit the employer, etc.) or are fairly clearly outside of the

employment realm (e.g., off premises, after work hours, or so far afield of duties as to

bear little connection). Moreover, these cases are all heavily fact-driven and, unlike the

instant case, seem to have additional facts which somewhat obviously tip the balance in

favor of one outcome or the other.



              Two intermediate appellate cases from Illinois and Ohio which are

remarkably similar to each other present the most closely analogous scenarios to the case

sub judice; however, both ultimately contain additional determinative facts which are

largely absent in petitioner’s case.   In Circuit City Stores, Inc. v. Illinois Workers’

Compensation Commission, 909 N.E.2d 983 (Ill. App. 2009), an employee was injured

while helping a co-employee dislodge a snack from a vending machine on the employer’s

premises.    In upholding the Workers’ Compensation Commission’s finding of

compensability, the Appellate Court of Illinois held that “when an employee leaves his or

her work duties to render aid to a third party, the ‘in the course of’ determination hinges

on whether the employee’s departure was reasonably foreseeable.” Id. at 992. To that

end, the court highlighted the fact that “the vending machine was provided for the use

and comfort of Circuit City’s employees and that products were known to get stuck in the

machine.” Id. The court further underscored the fact that the employee adduced specific

evidence of management-level knowledge of the vending machine’s propensity to

malfunction and awareness that employees customarily shook the machine to dislodge

products. Id. As a result of the foregoing, the court found that the Commission’s

                                             9

determination that the claim was compensable was “not against the manifest weight of

the evidence.” Id. at 993.



              Similarly, but under a critically different standard of review, the Court of

Appeals of Ohio found entry of summary judgment for the employer to be error in

another case involving a vending machine injury. In Cotton v. Administrator, Bureau of

Workers’ Compensation, 948 N.E.2d 968 (Ohio Ct. App. 2011), the trial court found that

Cotton, a janitor supervisor, was not injured in the course of his employment when he

was injured while assisting a co-worker in retrieving potato chips which had gotten stuck

in a vending machine. Cotton was performing his customary janitorial duties in the break

room where the vending machine was located at the time of the incident and testified that

in addition to his regular janitorial duties, he “regularly pushed desks, bookshelves, and

other furniture” in the course of his employment. Id. at 973. Cotton contended that the

trial court erred in its entry of summary judgment and that he was “engaged in an activity

that is logically related to his employment as a janitor supervisor.”         Id. at 971.

Cautioning that it was “not prepared to conclude, as a matter of law, that Cotton’s

actions were within the scope of his employment,” the Court of Appeals reversed, finding

that issues of fact made summary judgment inappropriate and that “a reasonable fact-

finder could conclude [Cotton’s injury] was related to his janitorial duties.” Id. at 976

(emphasis added).




                                           10

              While these cases are factually similar to the case sub judice in that they

involve injuries sustained by employees on work premises, during work hours, while

doing a “favor” for a co-employee, both involve defective instrumentalities provided by

the employer on work premises for the known use of the employees. In the case at bar,

however, the instrumentality of injury—the box of maternity clothes and the function of

taking them to the contract worker’s car—has nothing whatsoever to do with Seneca’s

business or workplace, aside from the fact that the box fortuitously happened to have

been left there for the convenience of the contract worker. Petitioner presented no

specific evidence that her supervisor or any management-level employees of Seneca were

actually even aware of the presence of the box.4



              Insofar as the relationship of the means of injury to work duties, in Cotton,

the employee testified that his customary duties included the type of general maintenance

and custodial activities to which assisting with a malfunctioning vending machine is akin.

Petitioner makes a similar, although broader, argument to that presented in Cotton,

contending that her job duties require her general assistance with the needs of her co­

workers and that she assisted in moving filing cabinets, desks, chairs, and other office

equipment. However, when asked to specifically describe her daily duties, petitioner




       4
        Petitioner testified very generally that her supervisor had been in her office while
the box was also present.

                                            11

testified that she performed “secretarial duties,” specifically typing, answering the phone,

and assisting staff members with computers and copiers.5



              Ultimately, however, neither Circuit City nor Cotton stand for the

proposition that the scenarios described therein were definitively “resulting from”

employment; rather, the courts therein defer rather heavily to their applicable standard of

review. In sum, what these cases actually reveal is that the determination of whether an

injury sustained while assisting a co-worker with a purely personal matter is causally

related to employment is an issue which is heavily fact-dependent and not easily resolved

by application of any particular rule of law.6




       5
         Upon brief questioning by her counsel, petitioner agreed that there had been prior
occasions where she had assisted in moving “personal items of employees” and that a
supervisor had observed such activity. Petitioner provided no detail whatsoever about the
types of personal items, how frequently such activity occurred, under what
circumstances, nor any specific incident known to or observed by her supervisor. As
such, this vague and unsupported testimony adds little to our analysis and was a matter
for the Administrative Law Judge to weigh and consider as to its “relevance, credibility,
materiality and reliability.” W. Va. Code § 23-4-1g(a) (2003).
       6
         Although not argued by the parties, we note that we do not find this case
amenable to analysis under the “Good Samaritan doctrine” recognized by some courts in
assessing compensability of injuries sustained while rendering aid to others. In cases
where this doctrine has been applied to find compensability, typically the aid rendered is
of an emergent nature and the employee’s “conditions of employment” positioned him or
her to undertake the rescue. See Olde South Custom Landscaping, Inc. v. Mathis, 494
S.E.2d 14 (Ga. Ct. App. 1997); see also Rockhaulers, Inc. v. Davis, 554 So.2d 654 (Fla.
Dist. Ct. App. 1989). Even in jurisdictions applying this doctrine, courts frequently also
require the act to “at least partially benefit his employer in order for an injury to be
considered incidental to or arising out of employment.” Quinney v. Md. Cas. Co., 347
So.2d 921, 923 (La. Ct. App. 1977); Roberts v. Burlington Ind., Inc., 364 S.E.2d 417, 421
(N.C. 1988) (“An injury to an employee while he is performing acts for the benefit of
                                             12

                Without question, this is a marginal case in terms of compensability and

reasonable minds certainly may differ. However, we can discern no particular benefit to

Seneca in petitioner’s admittedly kind, but purely gratuitous, gesture of assisting her co­

worker with the box. We find petitioner’s suggestion that helping to lift the box was

beneficial to the employer because it promotes generalized teamwork and camaraderie to

be unavailing and a slippery slope. Under this construct, the employer would essentially

become the insurer of anyone injured on the premises, regardless of the nature of the

activity giving rise to the injury, so long as an employee was assisting with the activity in

an effort to be helpful and collegial. Moreover, we are unpersuaded by petitioner’s

suggestion that due to her purported “support staff” designation 7 she was somehow

obligated to assist any employee with any task, without limitation. We agree with the

BOR that an injury which occurs while gratuitously assisting a co-employee with a task

of a purely personal nature, involving no instrumentalities of employment and without

any alleged involvement of or benefit to the employer, does not “result[] from”

employment.



                Finally, we emphasize that our recognition that this is a marginal case does

not permit us to simply substitute our judgment for that of the fact-finder below. We

believe that to reverse the BOR would constitute a re-weighing of the evidence which is



third persons does not arise out of the employment unless the acts benefit the employer to
an appreciable extent.”).
       7
           See n.1, supra.

                                             13

forbidden upon review by this Court pursuant to West Virginia Code § 23-5-15(c).

Moreover, West Virginia Code § 23-1-1(b) (2007) abrogated the historical “rule of

liberality” and provides that “workers’ compensation cases shall be decided on their

merits and that a rule of ‘liberal construction’ based on any ‘remedial’ basis of workers’

compensation legislation shall not affect the weighing of evidence in resolving such

cases.” See Bias v. Eastern Associated Coal Corp., 220 W.Va. 190, 209, 640 S.E.2d 540,

559 (2006) (Davis, C.J., concurring) (recognizing statutory abrogation of rule of liberality

in workers’ compensation claims).        More specifically, the Legislature has further

indicated that with regard to the rule of liberality: “No such principle may be used in the

application of law to the facts of a case arising out of this chapter or in determining the

constitutionality of this chapter.” W. Va. Code § 23-4-1g (2003) (emphasis added). As

such, in light of the intensely fact-driven nature of such cases, our required deference to

the fact-finder below, and the absence of an issue-determinative rule of law in this matter,

we are hard-pressed to find that the BOR’s determination constitutes a “clearly”

erroneous conclusion of law. Further, we find no clear violation of a constitutional or

statutory provision or misstatement or mischaracterization of the evidentiary record, as

would be necessary for this Court to reverse the BOR’s decision.




                                            14

                               IV. CONCLUSION

            For the foregoing reasons, we affirm the September 14, 2011, order of the

Board of Review.



                                                                           Affirmed.




                                        15

