Douglas Gallapoo v. Wal-Mart Stores, Inc., an Arkansas corporation; Phoenix Associates, Inc., a West Virginia corporation; C&S Erectors, Inc., a corporation; and A.M. Eagle Contracting, Inc., an Indiana corporation, No. 23151 (W. Va. July 19, 1996) (Recht, J.):
Where Indiana worker sought to bring a West Virginia Mandolidis action against his Indiana employer arising from injuries suffered in West Virginia, the Court held (1) under W. Va. Code § 23-2-1c(c), the workers' compensation scheme under the laws of another state is the exclusive remedy for a nonresident employee who is temporarily employed in West Virginia, who is injured in West Virginia, but who is covered by the workers' compensation law of another state and (2) a nonresident employee who is temporarily employed in West Virginia, who is injured in West Virginia, but who is covered by the workers' compensation law of another state cannot maintain a statutory Mandolidis action under W. Va. Code § 23-4-2(c)(2).
State of West Virginia ex rel. Vennie Blankenship, et al. v. Andrew N. Richardson, Workers' Compensation Commissioner, Consolidation Coal Company, Cannelton Industries, and Island Creek Coal Company, No. 23119 (W. Va. July 17, 1996) (McHugh, C.J.):
In an action challenging 1995 amendments to the workers' compensation statute, the Court held (1) W. Va. Code § 23-4-6(n)(1), which requires a fifty percent permanent partial disability award or a finding of a fifty percent medical impairment before a claimant is eligible to apply for a permanent total disability award, does not violate principles of equal protection; (2) workers' compensation statutes cannot be applied retroactively in a manner that would impair substantive rights; and (3) where a workers' compensation claimant has been previously awarded permanent partial disability benefits that would have entitled the claimant to apply for permanent total disability review, legislation that attempts to immediately preclude the claimant's substantive right to seek such review prior to the expiration of the ordinary ninety day period for the effective date of statutory enactments under W. Va. Const. art. VI, § 30, violates principles of fundamental fairness embodied in the due process provisions of W. Va. Const. art. III, § 10.
George A. Bell, Allison Bell and Jessica Bell v. Vecellio & Grogan, Inc., a West Virginia corporation, No. 22970 (W. Va. July 17, 1996) (Recht, J.):
Where West Virginia resident covered by West Virginia workers' compensation working for West Virginia employer was injured in Maryland, the Court reversed dismissal of his statutory Mandolidis suit, holding that (1) W. Va. Code § 23-4-2(c), the Mandolidis statute, represents the legislative abandonment of the common law tort exception to workers' compensation immunity in cases of intentional injury and (2) all employees covered by the workers' compensation statute are entitled to all its benefits, including the right to file a statutory Mandolidis action pursuant to W. Va. Code § 23-4-2(c).
Roger Persinger v. Peabody Coal Company, No. 23023 (W. Va. July 12, 1996) (Workman, J.):
Answering questions certified from federal district court in an action by a workers' compensation claimant who complained that his employer lied in conjunction with its opposition to his claim, the Court held (1) W. Va. Code § 23-2-6 does not prevent an employee from suing his or her employer where the employer knowingly and fraudulently misrepresents facts in conjunction with its opposition to the claim with the intention of depriving the employee of benefits rightfully due; (2) a complaint for workers' compensation fraud must be specific and must include reference to the particular acts or circumstances that distinguish the intentional tort of fraudulent misrepresentation from non-cognizable negligent misrepresentation or delay resulting from the exercise of an employer's statutory right to appear and contest any workers' compensation claim; (3) a claim for workers' compensation fraud, including any injury, must be proved by clear and convincing evidence; and (4) damages recoverable in an action for workers' compensation fraud include compensatory damages, punitive damages, and attorney fees.
Daniel G. Beckley, Robert L. Clay, Thomas S. Cueto, and Charles W. Rumbaugh v. Colonel T.L. Kirk, Superintendent, West Virginia Division of Public Safety; Darrell V. McGraw, West Virginia Attorney General; and Andrew N. Richardson, Commissioner, West Virginia Workers' Compensation Fund, No. 22242 and Danny G. Beckley v. Workers' Compensation Commissioner and West Virginia Division of Public Safety, No. 22471(W. Va. March 2, 1995) (Neely, C.J.): 193 W.Va. 258, 455 S.E.2d 817:
Rejecting an assertion of workers' compensation coverage for state troopers, the Court held that notwithstanding the broad language of W. Va. Code § 23-2-1(a), uniformed members of the division of public safety, who are covered by a separate trooper death, disability, and retirement fund, are not eligible for coverage under the workers' compensation system.
State of West Virginia ex rel. David Lacko, et al. v. Andrew N. Richardson, Workers' Compensation Commissioner, No. 22364 (W. Va. October 28, 1994) (Neely, J.): 192 W.Va. 52, 450 S.E.2d 641:
Clarifying the proper procedure with respect to incomplete workers' compensation claims, the Court held that although a claimant may be required to furnish information reasonably necessary to process a claim, if such information is known or may readily be ascertained by the claimant, if an application is incomplete, the commissioner must notify the claimant of the insufficient information within 30 days of receipt of the application and make reasonable efforts in assisting the claimant in providing such information, but, if the claimant refuses to cooperate, the commissioner may reject the application, without prejudice.
Dale F. Morris v. Consolidation Coal Company, et al., Nos. 22035 and 22035 (W. Va. July 18, 1994)(as modified) (McHugh, J.): 191 W.Va. 426, 446 S.E.2d 648:
Where employer unilaterally and without notice to the claimant, played a surveillance videotape for the treating physician's private viewing and, where subsequent to the viewing, the treating physician changed his opinion regarding the claim for workers' compensation benefits, the Court held (1) a fiduciary relationship exists between a workers' compensation claimant and a treating physician; (2) unless otherwise authorized by statute, regulation, or specific release, this fiduciary relationship prohibits oral, ex parte communication between the treating physician and third parties involving confidential physician/patient information; (3) the filing of a workers' compensation claim pursuant to W. Va. Code § 23-4-7, with the attendant general release of medical information, is inadequate to waive the fiduciary relationship which precludes oral, ex parte communication of confidential physician/patient information; (4) a patient has a cause of action against a treating physician who wrongfully divulges confidential physician/patient information; and (5) a patient has a cause of action against third-parties who (i) knew or reasonably should have known of the physician/patient relationship, (ii) induced or attempted to induce the physician to wrongfully divulge confidential physician/patient information; (iii) believed or had reason to believe that the information sought could only be obtained as the result of a breach of the physician/patient relationship; and (iv) the physician wrongfully divulged confidential physician/patient information in violation of the fiduciary relationship.
State of West Virginia ex rel. Andrew N. Richardson, Commissioner, Bureau of Employment Programs, Division of Employment Programs, Division of Workers' Compensation, etc. v. McCompton & Sons Lumber Company, etc., et al., No. 21982 (W. Va. July 11, 1994) (Brotherton, C.J.): 192 W.Va. 10, 449 S.E.2d 71:
Affirming the dismissal of an action by the workers' compensation commissioner seeking to hold a subscriber's corporate officer personally liable for a premium delinquency, the Court held (1) the expanded definition of "employer" found in 85 C.S.R. 11-2.8, effective April 30, 1990, may not be applied retroactively and (2) for a corporate officer to be personally liable for unpaid workers' compensation premiums pursuant to W. Va. Code § 23-2-1(a), the officer must have participated in or approved the wrongful acts.
Walter Anderson, et al. v. Andrew N. Richardson, Workers' Compensation Commissioner, No. 21772 (W. Va. July 8, 1994) (Miller, J.): 191 W.Va. 488, 446 S.E.2d 710:
With respect to the recent abolition of the 120-day rule for deciding PTD claims, the Court held that the commissioner is required to apply such rule to all cases that were remanded to the commissioner before April 8, 1993, the date W. Va. Code § 23-5-1j was abolished. With respect to the promulgation of rules on vocational rehabilitation, physical rehabilitation, and PTD claims, the Court held that because the commissioner was in the process of promulgating such rules, a writ of mandamus was improper.
Linda L. Powroznik, Administratrix and Personal Representative of the Estate of Dennis F. Powroznik v. C&W Coal Company, a corporation, No. 22014 (W. Va. May 27, 1994) (Miller, J.): 191 W.Va. 293, 445 S.E.2d 234:
In a case involving whether a contingency fee on the full amount of a settlement in a Mandolidis case can be collected, the Court held (1) in determining the excess recovery in a deliberate intent suit against an employer under W. Va. Code § 23-4-2(b), the amount of workers' compensation benefits must be deducted from the total award or settlement; (2) where a workers' compensation claim is made under W. Va. Code § 23-4-2(b), the attorney fee for any workers' compensation award is controlled by the fee schedule set forth in W. Va. Code § 23-5-5; and (3) the attorney fee for damages obtained in excess of workers' compensation benefits is not controlled by the fee schedule set forth in W. Va. Code § 23-5-5.
Belinda S. Myers and Sandra F. Tennant v. Morgantown Health Care Corp., a West Virginia corporation, No. 21360 (W. Va. July 15, 1993) (Neely, J.): 189 W.Va. 647, 434 S.E.2d 7:
Reversing a judgment for the employees in a workers' compensation discrimination case, the Court held that the trial court erred in instructing the jury pursuant to a statute not in effect at the time of their discharge.
Danny Lyons, Terry Gibson, Arla Sue Betts, Thena Maynard, Laurence Mayes, Ronald L. Stewart, Bruce Perry, and Bill Fitzpatrick v. Andrew N. Richardson, Workers' Compensation Commissioner, and Robert J. Smith, Chief Administrative Law Judge, No. 21454 (W. Va. March 16, 1993) (Miller, J.): 189 W.Va. 157, 429 S.E.2d 44:
In a case involving the statutory duties of the Workers' Compensation Commissioner and Office of Judges in the processing of claims for permanent total disability [PTD] benefits, the Court held (1) the Office of Judges, pursuant to W. Va. Code § 23-5-1j(a), has the authority to remand a claim for a PTD or second injury life award [SILA] to the Commissioner if the claim is first asserted before the Office of Judges or if the ALJ finds the record incomplete; (2) W. Va. Code § 23-5-1j does not mandate that every PTD or SILA claim be remanded to the Commissioner by the Office of Judges; and (3) an ALJ must, within 30 days after the final hearing, pursuant to W. Va. Code § 23-5-1h, render a decision affirming, reversing, or modifying the Commissioner's decision, giving findings of fact and conclusions of law.
Dallas Pugh v. Workers' Compensation Commissioner and Alamco, Inc., No. 21106 (W. Va. December 11, 1992) (McHugh, C.J.): 188 W.Va. 414, 424 S.E.2d 759:
Clarifying the time within which a permanent partial disability [PPD] claim may be reopened, the Court held that (1) W. Va. Code § 23-4-16 prohibits reopening a PPD claim where more than five years have passed since the last PPD payment was made and (2) that this prohibition does not apply to claims in litigation. On a separate issue, the Court held that its unpublished decisions, upon which the claimant relied in the instant case, have no precedential value and may not be cited in any court of this state as precedent or authority, except to support a claim of res judicata, collateral estoppel, or law of the case.
John Pannell v. Inco Alloys International, Inc., No. 20888 (W. Va. October 13, 1992) (McHugh, C.J.): 188 W.Va. 76, 422 S.E.2d 643:
Reversing summary judgment in a workers' compensation discrimination case, where the Court found the existence of a genuine of material fact regarding whether the reasons given for the employee's discharge were pretextual, the Court held that 1990 amendments to W. Va. Code § 23-5A-3, which strengthened protections for injured workers receiving compensation benefits, are to be applied prospectively.
Daphne Colleen Pasquale, Personal Representative of the Estate of Michael David Pasquale v. Ohio Power Company, an Ohio corporation, Central Operating Company, a West Virginia corporation; and Gallia Refrigeration, Inc., a/k/a Pasquale Electric Company, an Ohio corporation, No. 20264 (W. Va. May 15, 1992) (Miller, J.): 187 W.Va. 292, 418 S.E.2d 738:
Affirming a $6.2 million verdict in a wrongful death case arising from the electrocution of an Ohio employee at a West Virginia power plant, but denying the power company and general contractor's attempt to seek contribution from the independent contractor for whom the employee worked, the Court followed Ohio law, holding that (1) W. Va. Code § 23-2-1(c) makes the compensation law of another state the exclusive remedy against the employer for a nonresident employee who covered by compensation law of another state and who injured while temporarily working in West Virginia, and (2) a foreign corporation not covered by West Virginia's workers' compensation law, but covered by the compensation law of another state, who temporarily employs a nonresident who is injured in West Virginia, is immune from liability in an action for contribution by a joint tortfeasor.
Lilirose Sias, Administratrix of the Estate of Gerry Sias, deceased; Hollie Smith and Merry Smith; and John Starr and Brenda Starr v. W-P Coal Company, No. 19672 (W. Va. July 19, 1991) (McHugh, J.): 185 W.Va. 569, 408 S.E.2d 321:
Reinstating a jury verdict against a mine where a coal outburst killed one and injured four miners following a similar incident three weeks earlier in which two miners were injured, the Court held that W. Va. Code § 23-4-2(c) (2) (iii) (B), which authorizes the "prompt judicial resolution" of "deliberate intention" actions by employees against employers, relates only to the five-element test of W. Va. Code § 23-4-2(c) (2) (ii) (A) - (E), and does not apply to traditional standards for resolving motions for summary judgment, directed verdict, or judgment notwithstanding the verdict.
Jerry Ray Blevins v. Beckley Magnetite, Inc., No. 19654 (W. Va. July 29, 1991) (Workman, J.): 185 W.Va. 633, 408 S.E.2d 385:
Where trial court granted a judgment notwithstanding a verdict for $150,000 in favor of a worker whose arm was crushed in a conveyor after the worker was allegedly instructed not to stop conveyor when he was removing debris, the Court affirmed, holding the statutory requirement, under W. Va. Code § 23-4-2(c) (2) (ii), that an employer have a subjective realization of a specific unsafe working condition which could cause serious injury or death, in order to be liable for the injury to a worker, is not satisfied merely by evidence that the employer "should have known," but evidence must demonstrate that the employer "actually possessed such knowledge."
Betty Kosegi, Administratrix of the Estate of Kathryn Katic, Deceased v. Charles M. Pugliese and Thelma M. Pugliese d/b/a The Rogers Hotel, No. 19554 (W. Va. July 9, 1991) (Workman, J.): 185 W.Va. 384, 407 S.E.2d 388:
In a suit arising from the murder of a hotel's night desk clerk, where her employer had not paid its workers' compensation premiums for the quarters prior to and during the time of her death, the Court held, under W. Va. Code § 23-2-5, employers who fail to timely remit workers' compensation premiums lose their immunity, rejecting a plea by the employer to apply the notice provisions added to W. Va. Code § 23-2-5 after the decedent's death.
Corena Bradford v. Workers' Compensation Commissioner and Ranger Fuel Corporation, No. 20047 (W. Va. July 8, 1991): 185 W.Va. 434, 408 S.E.2d 13:
Where claimant's decedent, who had received a prior PTD award for black lung, died of cancer, which medical testimony indicated was more difficult to diagnose and treat because of the decedent's black lung, the Court rejected the OP Board's "major contributing factor" analysis used in determining dependent's benefits, holding that the appropriate test under W. Va. Code § 23-4-10(b) is whether the occupational injury or disease "contributed in any material degree to the death."
Giles Keaton v. Workers' Compensation Commissioner, Rockingham Marketing Cooperative, and Itmann Coal Company, No. 20021 (W. Va. May 24, 1991) (Neely, J.): 185 W.Va. 140, 405 S.E.2d 640:
Where claimant's wages had been higher at the time of an earlier compensable injury, the Court held that, under W. Va. Code § 23-4-6 and 23-4-14, any award from the second injury fund must be based on the claimant's earnings at the time of the second injury, not on the claimant's earnings at the time of any prior compensable injury.
Dana Crouch v. West Virginia Workers' Compensation Commissioner and Pfaff & Smith Builders & Supply Co., No. 19818 (W. Va. March 28, 1991) (Brotherton, J.): 184 W.Va. 730, 403 S.E.2d 747:
Reversing the Commissioner's refusal to authorize the purchase of a special van by a worker who was rendered a quadriplegic by a work-related injury, the Court held that the phrase, "approved mechanical appliances . . . a reasonably required" under W. Va. Code § 24-4-3, includes a specially converted van for claimants who are quadriplegic as a result of a compensable injury. The Court remanded to the Commissioner with directions to award the claimant a sum equal to the difference between the cost of the special van and the cost of an average automobile.
Indiana & Michigan Electric Company v. Workers' Compensation Commissioner and Robert B. Ward, No. 19850 (W. Va. February 27, 1991) (Miller, C.J.): 184 W.Va. 673, 403 S.E.2d 416:
Rejecting a mechanical engineer's hearing loss workers' compensation claim, the Court held that a seaman who receives an injury while working on a vessel in maritime waters is ineligible to file a claim under W. Va. Code § 23-1-1, et seq., but must seek redress under federal maritime law.
Timothy Powell v. Wyoming Cablevision, Inc., No. 19491 (W. Va. February 13, 1991) (Miller, C.J.): 184 W.Va. 700, 403 S.E.2d 717:
Affirming a retaliatory discharge award of $12,900 to a worker who was terminated upon his attempted return from an injury for which he received worker's compensation benefits, the Court held that, in order to establish a prima facie case of discrimination under W. Va. Code § 23-5A-1, an employee must demonstrate that (1) a work-related injury was sustained; (2) workers' compensation proceedings were instituted; and (3) the filing of a workers' compensation claim was a "significant factor" in the employer's decision to discharge or otherwise discriminate against the employee. As with other employment discrimination actions, the Court further held that once a prima facie case is established, the burden then shifts to the employer to prove a legitimate, nondiscriminatory reason for the discharge, with an opportunity for the employee, in rebuttal, to offer evidence that the employer's proffered reason for the discharge is merely a pretext for the discriminatory act.
James E. Van Camp and Mary Ann Van Camp v. Olen Burrage Trucking, Inc., a corporation, No. 19776 (W. Va. February 13, 1991) (Workman, J.): 184 W.Va. 567, 401 S.E.2d 913:
Where a driver for a Mississippi trucking company, which subscribed to the Mississippi Workers' Compensation Fund, sought recovery for damages suffered when he was involved in a traffic accident in West Virginia on the ground that the company should also have subscribed to the West Virginia Workers' Compensation Fund, the Court held that the company did not meet the following statutory criteria for mandatory subscription to the West Virginia Workers' Compensation Fund: (1) whether the employer has obtained authorization to do business in West Virginia; (2) whether the employer operates a business or plant or maintains an office in West Virginia; (3) whether the injured employee was hired in West Virginia; (4) whether the employer regularly employs West Virginia residents to work at its West Virginia facility; and (5) whether the injured employee worked on a regular basis at the employer's West Virginia facility prior to the employee's injury.
James Bilbrey v. Workers' Compensation Commissioner and Ranger Fuel Corporation, No.20142; Ranger Fuel Corporation v. Workers' Compensation Commissioner and James O. Bilbrey, No. 20244; Granville Gregory v. Workers' Compensation Commissioner and Kaiser Aluminum & Chemical Corporation, No. 20180; and Billie Lafferty v. Workers' Compensation Commissioner and Milburn Colliery Company, No. 20190 (W. Va. December 12, 1991) (Brotherton, J.): 186 W.Va. 319, 412 S.E.2d 513:
Setting forth comprehensive standards for processing occupational hearing loss claims, the Court held that (1) in order to exclude conductive losses due to external and middle ear injury, bone conduction tests should be performed; (2) where a conductive loss is present, impairment level should be calculated by deducting such loss from the four frequency total; (3) speech discrimination testing should be performed at a uniform 75 decibels unless another standard is adopted by the health care advisory panel; (4) all occupational hearing loss compensability orders should indicate whether the Craddock or post-Craddock standards apply; (5) only qualified otologists or otolaryngologists may interpret the results of audiograms; (6) referral orders must inform the testing physician (i) the tests to be conducted, (ii) the appropriate decibel level, (iii) the standards to be followed in the calculation of a rating, and (iv) such other specifics as are necessary for an informed decision; and (7) a physician who fails to follow the instructions set forth in a referral order should not be compensated.
Margaret A. Newman, Eloise Sims, and Helen Smigill v. Andrew N. Richardson, Workers' Compensation Commissioner, No. 20206 (W. Va. October 16, 1991) (Neely, J.): 186 W.Va. 66, 410 S.E.2d 705:
Where dependents' claims for benefits were rejected on medical causation grounds without referral to the occupational pneumoconiosis board, the Court effectively reversed, holding that (1) when a claim for occupational pneumoconiosis [OP], including asbestosis, is filed, the Commissioner must follow OP procedures, limiting any initial determination to exposure or other non-medical issues; (2) when a claim for occupational disease [OD] is filed, the Commissioner must follow the regular occupational injury procedures, applying the six criteria of W. Va. Code § 23-4-1 to determine whether the OD was "incurred in the course and resulting from employment;" and, (3) the decision in Powell v. State Workmen's Compensation Commission, 166 W. Va. 327, 273 S.E.2d 832 (1980), was not intended to modify the statutory definition of OP nor effect the processing system for OP claims.
Timothy Mayles v. Shoney's Inc., a corporation, d/b/a Captain D's; Fred Hunt; Edward and Hotchkiss, Inc.; and Wayne Phillips, No. 19530 (W. Va. December 20, 1990) (Workman, J.): 185 W.Va.. 88, 405 S.E.2d 15:
Affirming a verdict of $220,000 against an employer for a restaurant employee who suffered severe grease burns when he fell down a grassy slope while carrying a container to a disposal unit, the Court held that a plaintiff may establish "deliberate intention" in a civil action against an employer for a work-related injury by offering evidence to prove the five specific elements of W. Va. Code § 23-4-2(c) (2) (ii).
Sonja L. Dalton v. Emily A. Spieler, Workers' Compensation Commissioner, and the Nicholas County Commission, No. 19685 (W. Va. December 12, 1990) (McHugh, J.): 184 W.Va. 471, 401 S.E.2d 216:
Where a claimant was awarded less than the 12 percent PPD recommended by her attending physician who examined her prior to the closing of her TTD benefits, the Court reversed, holding that when an authorized treating physician recommends a PPD award of 15 percent or less, based upon an examination conducted prior to the closing of TTD benefits, the commissioner has a mandatory duty to enter an award of PPD benefits based upon the recommendation of the authorized treating physician.
Stella Vandergriff, Widow of Richard Vandergriff v. Workers' Compensation Commissioner and Sewell Coal Company, No. 19454 (W. Va. June 12, 1990) (Miller, J.): 183 W.Va. 148, 394 S.E.2d 747:
In affirming an offset of a previous lump sum payment of 104 weeks of death benefits pursuant to W. Va. Code § 23-4-10(e), which authorizes such benefits when a person receiving PTD dies from a cause not related to the disabling injury, against a subsequent award of widow benefits pursuant to W. Va. Code § 23-4-10(b) (1), which authorizes such benefits when a person dies of a compensable injury or occupational pneumoconiosis, the Court held by using concepts of disabling and nondisabling injuries, the two statutes provide separate and distinct eligibility requirements. In clarifying when widow's benefits are appropriate under W. Va. Code § 23-4-10(e), the Court set forth three criteria: (1) the decedent must have been receiving PTD benefits at the time of death; (2) the cause of death must have been something other than a disabling injury; and, (3) the decedent died leaving a dependent as defined in W. Va. Code § 23-4-10(d). In clarifying when widow's benefits are appropriate under W. Va. Code § 23-4-10(e), the Court set forth three criteria: (1) the decedent must have suffered a compensable personal injury or contracted an occupational disease; (2) the injury or disease must have caused the employee's death; and, (3) if the death was due to injury, the disability must have been continuous from the date of injury to the date of death.
Leonard Carter v. Emily Spieler, Workers' Compensation Commissioner, No. 19370 and Willie Adkins and Arnold F. Griffith v. Emily Spieler, Workers Compensation Commissioner, No. 19371 (W. Va. June 7, 1990) (Workman, J.): 183 W.Va. 126, 394 S.E.2d 528:
In a case involving a question regarding the proper method of calculating PTD awards in second injury cases for claimants who have received prior PPD awards, the Court held that such PTD awards must be reduced by all PPD benefits paid subsequent to the PTD onset date that contributed to the award of PTD benefits.
Frank Hunter v. Workers' Compensation Commissioner and National Coal Mining Company, No. 18966 (W. Va. November 3, 1989) (Miller, J.): 182 W.Va. 133, 386 S.E.2d 500:
In a case involving a sixty-five year old claimant with several work-related impairments, the Court held that where permanent partial disability combines with factors such as age, education, and intelligence, to render a claimant unemployable, he or she is entitled to a permanent total disability award. The Court further held, however, that a second injury life award may not be based solely on the fact that a claimant's advanced age precludes employment. Accordingly, the case was remanded for further factual development.