West Virginia Record

Sunday, September 22, 2019

State Supreme Court sides with third party seeking dismissal of workers' compensation discrimination claim

State Supreme Court

By Kyla Asbury | Jul 11, 2019


CHARLESTON — The West Virginia Supreme Court of Appeals reversed a decision by a Kanawha Circuit judge and granted a writ of prohibition in a case against Old Dominion Freight Line.

"Based on the record before us, the arguments of the parties, and the applicable law, we find that the circuit court exceeded its jurisdiction by failing to dismiss Ms. [Robin] Lusk’s claims against Gallagher Bassett," the June 12 opinion states. "Accordingly, we grant the writ of prohibition, reverse the circuit court’s order denying Gallagher Bassett’s motion to dismiss, and remand this case to the circuit court for the entry of an order dismissing Ms. Lusk’s claims against Gallagher Bassett."

Justice Tim Armstead authored the majority opinion. Justice Margaret Workman concurred in part and dissented in part and filed a separate opinion.


Robin Lusk and Kevin Lusk were long-haul truckers with Old Dominion and on June 16, 2015, they entered Old Dominion's Los Angeles terminal to begin their next haul. When Robin Lusk was attempting to connect the trailers with her husband, she received services injuries and was transported via ambulance to a California hospital, where she remained for several days.

On June 22, 2015, when Robin Lusk was discharged from the hospital, she spoke with a terminal manager on the phone who told her that she and her husband were fired for falsifying the log book, according to the opinion.

Robin Lusk and her husband returned to West Virginia and she immediately checked into the hospital, where she learned that Old Dominion had terminated her health insurance coverage. She then spoke with an employee of Gallagher Bassett, who informed her that her request for workers' compensation benefits was denied.

Robin Lusk challenged the decision and the Office of Judges ruled that her injury was work-related and that her claim was compensable. Robin Lusk sued Old Dominion in 2015 in Kanawha Circuit Court. She accused Old Dominion of workers' compensation discrimination and fraud and defamation. In her suit, she identified the Gallagher Bassett employee, Cathy Reedy, by name.

In June 2018, the lower court held a hearing on Gallagher Bassett's motion to dismiss and denied the motion. Gallagher Bassett then filed a petition for writ of prohibition on Jan. 18, challenging that denial.

"Ms. Lusk contends that Gallagher Bassett and Old Dominion delayed the discovery efforts that ultimately led her to conclude that Old Dominion blamed Gallagher Bassett for the decision to deny workers’ compensation benefits," the opinion states. "However, even if this were true, any such delay did not conceal from Ms. Lusk the relevant facts that were necessary for her to file her fraudulent misrepresentation claim against Gallagher Bassett."

When applying the standard set forth by the Supreme Court in a previous decision, it concluded that Lusk's claim of fraudulent misrepresentation is barred by the two-year statute of limitations.

"For the foregoing reasons, we conclude that the circuit court exceeded its legitimate powers when it refused to dismiss Ms. Lusk’s claims against Gallagher Bassett," Armstead wrote. "We, therefore, grant the writ of prohibition and reverse the Aug. 27, 2018 ruling of the Circuit Court of Kanawha County. We further remand this matter to the circuit court and order it to enter an order dismissing Ms. Lusk’s claims against Gallagher Bassett for workers’ compensation discrimination and workers’ compensation fraud."

In her separate opinion, Workman wrote that she concurs with the majority’s decision insofar as it upholds statutory law that prohibits a cause of action by an employee against a third-party administrator for workers’ compensation discrimination and with the majority's decision to recognize that a workers’ compensation fraud cause of action against a third-party administrator does not fall within the protections of that statute.

"However, I dissent to the majority’s subsequent dismissal of the fraud claim based upon the two-year statute of limitations when that issue was not properly before this Court on a writ of prohibition," Workman wrote.

West Virginia Supreme Court of Appeals case number 19-0043

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