WEST VIRGINIA RECORD

CHARLESTON – Fifteen Martinsburg firefighters who sued the city because they thought they could not pursue workers' compensation claims found out they should have applied for workers' comp after all.

The West Virginia Supreme Court of Appeals halted proceedings before Berkeley County Circuit Judge David Sanders on claims of the firefighters that they inhaled too much diesel exhaust.

Chief Justice Robin Davis and Justices Joseph Albright, Spike Maynard and Brent Benjamin agreed that Sanders should not have denied Martinsburg's motion for judgment in its favor last year.

The firefighters claimed no present injury. They sought regular medical monitoring to detect diseases that diesel exhaust might cause.

Sanders rejected the city's argument of immunity under state law that protects a local government from a claim if workers compensation would cover the claim.

Sanders agreed with the firefighters that workers compensation would not cover claims for future injuries, but the Court majority disagreed.

Albright wrote, "The potential injury Respondents fear falls within the ambit of the Workers' Compensation system as an occupational disease arising out of and during the course of employment…"

In a footnote he dodged the question of whether the firefighters would collect.

He wrote, "We express no opinion as to whether the medical monitoring sought by Respondents may constitute a medical benefit under the Workers' Compensation Act."

Justice Larry Starcher, in dissent, doubted that the firefighters would get very far with workers compensation claims.

He wrote that, "…in today's political climate, I believe that workers' compensation insurers will steadfastly decline to pay for medical monitoring benefits, preferring instead to gamble with the worker's life…"

He called the decision a retreat from Bower v. Westinghouse Electric, a 1999 case that recognized the validity of medical monitoring claims.

Martinsburg stopped the suit with a petition for a writ of prohibition.

Under a 1953 decision, the Supreme Court of Appeals can grant such a writ "…to restrain inferior courts from proceeding in causes over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding their legitimate powers."

Before the Justices, Charles Printz Jr., and Joseph Caltrider of Martinsburg represented Martinsburg. Harry Waddell of Martinsburg represented the firefighters.

In a June 29 opinion granting the writ, Albright wrote that the firefighters relied on a 1933 decision, Jones v. Rinehart & Dennis.

\"At the time Jones was decided, the only occupational diseases covered by Workers' Compensation were those specifically enumerated in the statute," he wrote. "By amendment in 1949, the Legislature expanded Workers' Compensation coverage to any occupational disease proven to be incurred in the course of and resulting from employment.

"Accordingly, the type of potential harm Respondents allege falls within the definition of occupational disease…"

Starcher fumed in his dissent that, "I decline to join my colleagues in the decimation of the constitutional role of the courts as caretakers of the common law."

He wrote that common law has evolved through centuries.

"We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors," he wrote, adding that the Bower decision "acknowledged the science of the times and allowed the common law to evolve…"

"These people have an economic 'injury:' the cost of the medical tests required to monitor their medical condition."

He wrote that the majority created "judicial purgatory" for government employees and left them "bereft of any remedy for the wrong committed upon them by their employer."