Davis

CHARLESTON – Employers can spy on workers with suspicious injury claims but employers who fire those workers should prepare to pay a million dollars, according to a March 27 decision from the state Supreme Court of Appeals.

The Justices upheld Boone County jurors who ordered Rivers Edge Mining to pay that much in punitive damages for firing former miner George Peters.

Rivers Edge terminated Peters after he missed two days of work. An investigator for the mine found Peters working at a pallet company he owned.

Though his union contract allowed termination for missing two days, jurors found that Rivers Edge used the rule as a pretext to fire him for claiming workers' compensation.

"Rivers Edge's conduct is particularly egregious in light of the fact the sole reason Mr. Peters was off from work, in the first instance, is because he had sustained a work related injury while working for Rivers Edge," Justice Robin Davis wrote. "During the entire time Mr. Peters was off from work, Rivers Edge placed him under surveillance because it doubted the legitimacy of his workers' compensation claim.

"After Mr. Peters had been released by his doctor to return to work, Rivers Edge again placed him under surveillance because it doubted the legitimacy of his workers' compensation claim.

"That is not to say, however, that an employer may not use surveillance techniques to investigate the veracity of an injured employee's claim for workers' compensation benefits.

"In the case sub judice, though, we find that Rivers Edge's use of surveillance combined with the other facts and circumstances present in this case justified the jury's conclusion to award punitive damages to Mr. Peters."

On the first day, she wrote, Rivers Edge gave him five hours notice to report for work.

The decision also affirmed the jury's $855,107 award of actual damages.

Chief Justice Brent Benjamin agreed with the result but reserved the right to file a concurring opinion.

Rivers Edge hired Peters in 2002. In 2003 he broke his wrist while hanging cable.

Doctors at Putnam General Hospital set the joint in a cast.

Rivers Edge placed him in a transitional program and assigned him to haul coal.

In 2004, a doctor recommended that he stop working so his wrist could heal.

Peters requested and received temporary total disability benefits.

On May 7, 2004, the doctor released him to return to work.

On May 10, Donnie Pauley of Rivers Edge called the number on Peters' personnel sheet but the number belonged to his mother and Peters didn't live with her.

Pauley left a message for Peters to report to the mine the next day. Pauley called back twice to repeat the message.

On May 11, Peters called his mother and she relayed the message. His shift had started and he didn't report to the mine.

On May 12, Peters called Pauley, who said he could return to the transitional program. Peters said he would return the next day.

Two conversations followed between Peters and Pauley. "The parties dispute the content of these subsequent conversations," Davis wrote.

On May 13, Peters reported for work and Rivers Edge suspended him.

On May 18, Rivers Edge fired him.

United Mine Workers of America, District 17, Local 781, filed a grievance. In October 2004 an arbitrator decided that Rivers Edge demonstrated just cause.

In 2006, Peters sued Rivers Edge, claiming retaliatory discharge.

State workers' compensation law provides that, "No employer shall discriminate in any manner against any of his present or former employees because of such present or former employee's receipt of or attempt to receive benefits under this chapter."

At trial in 2007, Rivers Edge moved three times for mistrial, and Circuit Judge William Thompson denied the motions.

Jurors found that Peters' pursuit of benefits was a substantial factor in his discharge and Rivers Edge unlawfully failed to reinstate him.

They awarded $171,697 in back pay, $513,410 in "front pay," $200,000 for aggravation, inconvenience, humiliation and loss of dignity, and $1 million in punitive damages.

Thompson denied a motion to review punitive damages, citing evidence that Rivers Edge placed Peters under surveillance when a doctor didn't approve his return.

Thompson entered judgment, denied a motion to amend it, and denied a new trial.

On appeal Rivers Edge claimed Peters improperly relitigated his grievance, but the Justices ruled that the arbitrator decided issues of a union contract and jurors decided issues of workers' compensation law.

Rivers Edge claimed workers' compensation doesn't allow front pay, but the Justices found it an acceptable substitute where hostility makes reinstatement inappropriate.

Rivers Edge claimed Thompson should have reduced the punitive damages award, but the Justices applauded jury and judge.

"We wish to commend the circuit court for the completeness of its punitive damages order, in which the court thoroughly addressed and considered the various cases comprising this Court's punitive damages jurisprudence," Davis wrote.

Peters proved that Rivers Edge's actions were malicious, she wrote.

Mark Atkinson and Paul Frampton Jr., of Atkinson and Polak in Charleston, represented Peters. So did Harry Hatfield, of Hatfield and Hatfield in Madison.

Bryan Cokely and J. A. Curia III of Charleston and David Morrison and Amy Smith of Clarksburg represented Rivers Edge. All four work for Steptoe & Johnson.

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