How Not to Spy on Your Injured Employee: Why Employers Need to Conduct Proper, Legal and Fair Surveillance of Injured Workers

Attorneys Denise Klug and Aimee Stern, noted authorities on workers’ compensation in West Virginia, offer insight into an important new employer-unfriendly West Virginia case.

1. In Peters v. Rivers Edge Mining, Inc., the Court upheld a jury verdict awarding nearly $2 million in damages to a plaintiff who alleged workers’ compensation discrimination.

2. The plaintiff, George Peters, was employed as a coal miner by Rivers Edge, when he injured his wrist at work. Mr. Peters filed a workers’ compensation claim, and was taken off work by his physician for approximately two months.

3. Three days after Mr. Peters was released to return to work, his workers’ compensation case manager received an email from a representative of Rivers Edge, indicating Rivers Edge would place Mr. Peters in its transitional work program, due to his continuing physical restrictions, and he was to contact Mr. Peters regarding his return to work.

4. In his Rivers Edge personnel file, Mr. Peters provided as his contact number the phone number for his mother’s house, where he did not live. Accordingly, the Rivers Edge representative was unable to speak to Mr. Peters until two days later. At that time, Mr. Peters was informed he could return to work at Rivers Edge. However, the parties disputed when Mr. Peters was required to report to work.

5. Rivers Edge claimed Mr. Peters reported for work one day late, thus violating the “2-day rule” of the collective bargaining agreement, providing an employee who is absent from work for two consecutive days without approval, other than for a proven sickness, may be discharged. Rivers Edge terminated Mr. Peters’ employment for violation of the 2-day rule.

6. Mr. Peters’ union filed a grievance on his behalf to challenge the discharge. The grievance was arbitrated, and the arbitrator decided that Rivers Edge demonstrated just cause for terminating Mr. Peters’ employment.

7. Mr. Peters filed a lawsuit, alleging his termination violated the West Virginia statutory provision prohibiting employers from retaliating against employees who applied for worker’s compensation benefits. The jury found Mr. Peters’ termination did constitute worker’s compensation discrimination, and awarded him almost $885,107 in compensatory and $1 million in punitive damages.

8. Rivers Edge appealed to the Supreme Court. The Court affirmed the jury’s verdict, and in so doing, made the following “employer-unfriendly” rulings:
    a. The fact the arbitrator found Rivers Edge’s termination of Mr. Peters was proper under the collective bargaining act did not necessarily mean Mr. Peters could not prove his termination constituted workers’ compensation discrimination.
    b. The jury’s award of $513,410 for front pay was proper because reinstatement or front pay is available as damages to a plaintiff alleging workers’ compensation discrimination.
    c. The $1 million in punitive damages awarded by the jury was affirmed. As support for its decision that punitive damages were warranted, the Court cited the following: Rivers Edge had been “suspicious” of the validity of Mr. Peters’ workers’ compensation claim; it had placed him under surveillance when his doctor did not approve his return to work; once his return to work had been approved, Rivers Edge continued its surveillance of him rather than responding to his attempts to return to work; and although Rivers Edge had known of Mr. Peters’ ability to return to work for six days, it gave him only five hours notice that he was required to return to work. (workersxzcompxzkit)

9. Obviously, this decision will cause concern to many West Virginia employers who think if their termination of an employee is approved in arbitration, they are safe from a lawsuit; however, under this decision, they are not. In addition, the Court condemned the employer for being “suspicious” of the claim and for placing the employee under surveillance, a common practice among employers.

Possibly the best way for employers to protect themselves from a result like the one in Peters v. Rivers Edge is to make sure to conduct surveillance only when there is a reason to believe an employee is engaging in activities inconsistent with his or her claimed injury, and to be sure to thoroughly document the non-discriminatory reasons for every employment decision made with respect to an employee who has filed a workers’ compensation claim.

WorkersCompKit® Blog Guest Authors:   Denise D. Klug and Aimee M. Stern

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker about workers' comp issues.

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