McGraw owes former employee nothing, Supreme Court says

Steve Korris Jul. 16, 2007, 12:31pm



CHARLESTON, W. Va. - Working for West Virginia Attorney General Darrell McGraw depressed Donald Darling and gave him migraine headaches, but the Supreme Court of Appeals says McGraw owes him nothing.

The Justices on June 28 denied a petition that would have required the state's insurer to pay damages to Darling for McGraw's actions.

Chief Justice Robin Davis and Justices Spike Maynard and Brent Benjamin relied on a 2006 decision that workers' compensation law bars a common law action for an injury with mental cause and effect.

McGraw accepted responsibility but denied liability.

The unsigned majority opinion stated, "The Attorney General concedes that Darling's chronic depression and migraine headaches have a work-related component to them."

Justices Joseph Albright and Larry Starcher concurred in denying the petition but dissented from the majority's reasoning

Albright wrote that if "mental-mental" claims do not fall under workers compensation law, they must fall under the common law of negligence.

Darling, however, did not allege negligence. He argued that he fit an exception in workers compensation law.

Neither the majority nor the dissenters followed that logic.

The majority wrote, "Darling's contentions are somewhat perplexing."

Albright simply converted the claim to negligence. He wrote, "... the essence of a 'mental-mental' claim that falls outside the statutory parameters of workers' compensation is clearly negligence."

Darling started working in the Attorney General's in 1991. He quit in 2002.

He filed disability claims with Social Security and the West Virginia Consolidated Public Retirement Board. They approved benefits.

He filed a workers' compensation claim, but the Workers' Compensation Commission Division rejected it.

The Office of Judges affirmed the rejection in 2003, and the Appeal Board affirmed it in 2004.

At that time, Darling received more than $4,000 a month from Social Security and the Retirement Board.

He could have taken his workers' compensation claim to the Supreme Court of Appeals, but instead he filed two lawsuits in one day.

In federal court at Charleston he claimed that West Virginia workers' compensation law denied him equal protection under the U. S. Constitution.

In Kanawha Circuit Court, he sought payment from National Union Fire Insurance under the state's comprehensive liability insurance policy.

National Union Fire Insurance had issued the policy to the state Board of Risk and Insurance Management, or BRIM.

National Union Fire removed the suit to federal court.

Both his claims failed in federal court in 2005.

Last year Darling, acting as his own attorney, petitioned the Supreme Court of Appeals for a writ of mandamus against McGraw.

He argued that McGraw was directly responsible because the Legislature did not grant employers immunity from mental-mental claims.

He argued that neither McGraw nor the state would have to pay his claim because BRIM would cover it.

The Justices promptly added BRIM as a respondent to the petition.

Before the Court, deputy attorney general Debra Hamilton represented McGraw. Charles Bailey of Charleston represented BRIM. Justices heard arguments Jan. 23.

The majority wrote that the Court invokes original jurisdiction by writ of mandamus only in limited and truly exceptional circumstances.

They wrote that Darling failed to show a clear right to relief or legal duty on McGraw's part to act.

They wrote, "Indeed, as a matter of law, we find that Darling cannot demonstrate such requirements."

Albright wrote in dissent, "I remain resolute in my opinion that employers do not have immunity from common law claims which arise from 'mental-mental' injuries."

He wrote, "If you accept that immunity from common law claims is nonexistent for claims that are not within the scope of workers' compensation law, logic requires that employees be permitted to seek recovery for 'mental-mental' claims from their employers under common law precepts."

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