CHARLESTON – Coal miner Berchie Bias cannot sue his employer over his fear of smoky death, the West Virginia Supreme Court of Appeals has decided.

Three of five justices agreed that state law immunizes employers from claims of mental injury without physical manifestation.

Justice Larry Starcher, however, dissented with all his heart, saying it is "the opinion I have most disagreed with in all my years on this court."

The majority reasoned that such an injury does not qualify for worker's compensation benefits, so it does not qualify for damages in civil court.

Justice Brent Benjamin wrote for the majority that employer immunity "is applicable to such an injury and has been so since the Worker's Compensation Act was enacted."

Bias sued Eastern Associated Coal in Boone County, after spending about 90 minutes trapped in smoke.

Bias survived by running into two mechanics and catching a ride to safety in a Jeep.

Bias alleged he suffered nightmares, lost sleep, became distraught, and spent nine days at Highlands Hospital.

Circuit Judge Lee Schlaegel ruled in 2004 that Bias could bring a common law negligence action against Eastern, but Schlaegel certified the question to the Supreme Court of Appeals.

Norman White and Brian Ooten of Madison represented Bias before the Court. Ancil Ramey and Toney Stroud of Charleston represented Eastern.

The Justices ruled June 8 that Bias could not sue.

Benjamin wrote that the Legislature prohibited worker's compensation benefits for psychological claims with no physical manifestation.

He wrote that the Legislature immunized employers from negligence claims to protect them from litigation outside the worker's compensation system.

Chief Justice Robin Davis and Justice Spike Maynard concurred. Justice Joseph Albright concurred in part and dissented in part.

Starcher's dissent was passionate.

He wrote, "the majority's opinion is, without a doubt, the opinion I have most disagreed with in all my years on this court."

He called it "a remarkable alignment of bad reasoning, bad policy, and skewed legal research.

"I cannot begin to fathom or attempt to describe what may have motivated the majority's decision."

He wrote that the majority suggested that the mental injury was a mere trifle.

He wrote, "The shock of a terrifying event –- like a rape, a robbery at gunpoint, or fearing death by suffocation when lost in the smoky darkness of a mine for 90 minutes –- triggers chemical reactions in the brain that measurably scar and injure nerve tissue."

He wrote, "The majority opinion reflects a disdain for the extreme fear of death that coal miners like Mr. Bias face on a daily basis –- a fear that has become all too real this year -– and the disabling effect that fear can have on a miner's psyche."

He wrote that in 2006 at least 33 miners have died in America, 19 in West Virginia.

He wrote, "It pains me to hear of these deaths, and then read the majority opinion's callous treatment of Mr. Bias's claims."

He wrote that the majority violated the constitutional rights of every West Virginia citizen.

He wrote that the majority avoided the constitutional question because Bias's lawyers never raised it.

He wrote, "Each member of this court was required, by law and by the Constitution, to take an oath to support and defend the Constitution -- yet the members of the majority now find themselves undermining the Constitution simply because no one pointed out that, perhaps, they shouldn't do that."

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