Shaffer, M.D. v. Ft. Henry Surgical Assoc. et al., No. 31577

Jolyon W. McCamic, Esq.
Jeremy C. McCamic, Esq.
Wheeling, West Virginia
Attorneys for Petitioners

Michael J. Florio, Esq.
Clarksburg, West Virginia
Attorney for Respondent

The Opinion of the Court was delivered PER CURIAM.
JUSTICE McGRAW dissents.

SYLLABUS BY THE COURT

1. “'The appellate standard of review of questions of law answered and
certified by a circuit court is de novo.' Syl. pt. 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996).” Syl. pt. 1, Delaware CWC Liquidation Corp. v. Martin, 213 W.Va. 617, 584 S.E.2d 473(2003).

2. “'“'“ Where the language of a statute is clear and without ambiguity the
plain meaning is to be accepted without resorting to the rules of interpretation.” Syllabus Point 2[,] State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968).' Syl. pt. 1, Peyton v. City Council of Lewisburg, 182 W.Va. 297, 387 S.E.2d 532 (1989).” Syl. pt. 3, Hose v. Berkeley County Planning Commission, 194 W.Va. 515, 460 S.E.2d 761 (1995).' Syl. pt. 2, Mallamo v. Town of Rivesville, 197 W.Va. 616, 477 S.E.2d 525 (1996).” Syl. pt. 3, Maikotter v. Univ. of W.Va. Bd. of Trustees, 206 W.Va. 691, 527 S.E.2d 802 (1999).

3. “'“The West Virginia Wage Payment and Collection Act is remedial
legislation designed to protect working people and assist them in the collection of compensation wrongly withheld.” Syllabus, Mullins v. Venable, 171 W.Va. 92, 297 S.E.2d 866 (1982).' Syl. Pt. 3, Jones v. Tri-County Growers, Inc., 179 W.Va. 218, 366 S.E.2d 726 (1988).” Syl. pt. 3, Lipscomb v. Tucker County Com'n, 206 W.Va. 627, 527 S.E.2d 171 (1999).

4. “'The word “any,” when used in a statute, should be construed to mean
any.' Syl. pt. 2, Thomas v. Firestone Tire & Rubber Co., 164 W.Va. 763, 266 S.E.2d 905 (1980).” Syl. pt. 4, Williams v. W.Va. Dept. of Motor Vehicles, 187 W.Va. 406, 419 S.E.2d 474 (1992).

5. “'“In the absence of any specific indication to the contrary, words used
in a statute will be given their common, ordinary and accepted meaning.” Syl. Pt. 1, Tug Valley Recovery Center, Inc. v. Mingo County Commission, 164 W.Va. 94, 261 S.E.2d 165 (1979).' Syl. Pt. 1, Pennsylvania and W.Va. Supply Corp. v. Rose, 179 W.Va. 317, 368 S.E.2d 101 (1988).” Syl. pt. 3, Ohio Cellular RSA v. Board of Public Works, 198 W.Va. 416, 481 S.E.2d 722 (1996).

Per Curiam:

This case is before this Court upon certified questions from the Circuit Court of Ohio County, West Virginia, concerning the application of the West Virginia Wage Payment and Collection Act (“Wage Payment and Collection Act”), W.Va. Code §21-5-1, et seq., to Respondent David J. Shaffer, M.D.'s (See footnote 1) former employment with and action for damages against Petitioners Ft. Henry Surgical Associates, Inc., f/k/a Cardiac Surgeons, Inc. (“Petitioner corporation”), and Howard Shackelford, M.D. (collectively referred to as “Petitioners”).

FACTS

Pursuant to an employment agreement entered into by the parties, Respondent became employed by Petitioner corporation for a term of employment beginning July 1, 1995 and terminating on June 30, 1997. The employment agreement provided, inter alia, that “it is understood and acknowledged by both [parties] that [Respondent's] status is solely as an employee[,]” and further, that Respondent “shall retain full discretion as to the specific application of his professional skills in his employment; however, the determination of working hours, general standards of professional performance and other matters of general policy are reserved to [Petitioner corporation].” The employment agreement expired by its own terms on June 30, 1997. It is undisputed that the parties exchanged, but never executed, subsequent employment agreements.

Though the employment agreement under which Respondent was working expired on June 30, 1997, Respondent continued his employment with Petitioner corporation until he was terminated on October 9, 1999. Following expiration of the initial employment agreement, Respondent's employment status remained that of employee.

After his employment was terminated, Respondent filed a complaint against Petitioners in the Circuit Court of Ohio County, alleging, inter alia, violations of the Wage Payment and Collection Act and also alleging conversion. Complaint, filed November 21, 2000. On or about December 26, 2000, Petitioners filed an answer and counterclaim to the complaint. By Order entered May 13, 2002, the Circuit Court ordered, inter alia, the complaint (See footnote 2) and counterclaim bifurcated and further ordered that “[t]he trial of this action . . . shall be limited to determining the terms and conditions of the employment relationship, if any, between Dr. Shaffer and the defendants.” May 13, 2002 Order, in relevant part.

A trial on the matter was conducted on May 20, 2002. At the close of Respondent's evidence, the circuit court granted Petitioners' motion for judgment as a matter of law, see W.Va. R. Civ. P. 50(a)(2), and, thereafter, entered the following order:

It appearing to this Court, having considered all of the plaintiff's evidence in this case, and the reasonable inferences flowing therefrom, in the light most favorable to the plaintiff, that the evidence is insufficient as a matter of law and this Court finds that the plaintiff had become an employee at will whose employment was one of indefinite duration at the time of the plaintiff's dismissal on October 9, 1999. As a result, the provisions of W.Va. Code §55-1-1(f) (See footnote 3) applied and any contract between the parties was not in writing.

June 11, 2002 Order, in relevant part. (Footnote added)

Respondent did not appeal the June 11, 2002 order; instead, on September 19, 2002, Respondent filed a Second Amended Complaint, (See footnote 4) again alleging, inter alia, violations of the Wage Payment and Collection Act. It is Respondent's contention that, upon the conclusion of his employment agreement on June 30, 1997, Petitioners failed to notify him, in writing, of any changes in his pay, as required by W.Va. Code §21-5-9(1) and (2) [1975] of the Act. (See footnote 5) Respondent also claims he was entitled to receive production incentive bonuses for specific periods of his employment; an increase in salary which was to have become effective upon a date certain; additional compensation based upon payments received by Petitioner corporation on Respondent's accounts receivable for one year after his termination; and two months' advance notice of termination of his employment, regardless of cause, or compensation in lieu thereof. (See footnote 6)

Petitioners filed an answer and counterclaim and, on or about December 11, 2002, filed a Motion for Judgment of Dismissal. By order entered May 14, 2003, the circuit court denied Petitioners' motion (See footnote 7) and certified four questions to this Court, pursuant to W.Va. Code §58-5-2 [1998]. (See footnote 8) However, this Court has the discretion to reformulate the questions and/or to decline to address one or more questions that have been certified by the circuit court. See Wiley v. Toppings, 210 W.Va. 173, 556 S.E.2d 818 (2001). In the instant case, we have determined that two of the four questions are not necessary to the resolution of this case (See footnote 9) and, further, that the remaining questions are somewhat redundant and are rephrased (See footnote 10) in the following single question:

Is a physician, whose employment status is solely as an employee, an “employee” within the meaning of W.Va. Code §21-5-1(b) [1987] of the Wage Payment and Collection Act?

The circuit court answered the question in the affirmative.

II.

STANDARD OF REVIEW

“'The appellate standard of review of questions of law answered and certified by a circuit court is de novo.' Syl. pt. 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996).” Syl. pt. 1, Delaware CWC Liquidation Corp. v. Martin, 213 W.Va. 617, 584 S.E.2d 473(2003). See also Syl. pt. 2, Hollen v. Hathaway Electric, Inc., 213 W.Va. 667, 584 S.E.2d 523 (2003) (“'Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.' Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).”).

III.

DISCUSSION

As indicated above, the certified question presented requires us to determine whether a physician like Respondent, whose employment status is solely as an employee, is an “employee” within the meaning of W.Va. Code §21-5-1(b) [1987].

Petitioners contend that as one practicing a profession, see W.Va. Code §30-1- 1, et seq., (See footnote 11) and in particular, in the case of a physician whose professional services and conduct are subject to regulation and control pursuant to the West Virginia Medical Practice Act, W.Va. Code §30-3-1, et seq., Respondent may not be considered an “employee” within the meaning of the Wage Payment and Collection Act. Respondent argues, however, that the statutory term “employee” is broadly defined and does not distinguish employees who provide professional services from other so-called “working people.”

Whether the Wage Payment and Collection Act applies to Respondent's employment relationship with Petitioner corporation requires this Court to review the relevant statutory language. In so doing, we are mindful that “[i]n examining statutory language generally, words are given their common usage and '[c]ourts are not free to read into the language what is not there, but rather should apply the statute as written.'” Keatley v. Mercer County Bd. of Educ., 200 W.Va. 487, 491, 490 S.E.2d 306, 310 (1997) (quoting State ex rel. Frazier v. Meadows, 193 W.Va. 20, 24, 454 S.E.2d 65, 69 (1994).). Furthermore, in syllabus point three of Maikotter v. Univ. of W.Va. Bd. of Trustees, 206 W.Va. 691, 527 S.E.2d 802 (1999), we held that

“'“'“ [w]here the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.” Syllabus Point 2[,] State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968).' Syl. pt. 1, Peyton v. City Council of Lewisburg, 182 W.Va. 297, 387 S.E.2d 532 (1989).” Syl. pt. 3, Hose v. Berkeley County Planning Commission, 194 W.Va. 515, 460 S.E.2d 761 (1995).' Syl. pt. 2, Mallamo v. Town of Rivesville, 197 W.Va. 616, 477 S.E.2d 525 (1996).”

Furthermore, it is well settled that “'“[t]he West Virginia Wage Payment and Collection Act is remedial legislation designed to protect working people and assist them in the collection of compensation wrongly withheld.” Syllabus, Mullins v. Venable, 171 W.Va. 92, 297 S.E.2d 866 (1982).' Syl. Pt. 3, Jones v. Tri-County Growers, Inc., 179 W.Va. 218, 366 S.E.2d 726 (1988).” Syl. pt. 3, Lipscomb v. Tucker County Com'n, 206 W.Va. 627, 527 S.E.2d 171 (1999). Therefore, “[s]tatutes, such as the [Wage Payment and Collection Act], that are designed for remedial purposes are generally construed liberally to benefit the intended recipients.” Conrad v. Charles Town Races, Inc., 206 W.Va. 45, 51, 521 S.E.2d 537, 543 (1998) (citations omitted).

W.Va. Code §21-5-1(b) [1987] defines the term “employee” to “include[] any person suffered or permitted to work by a person, firm or corporation.” (See footnote 12) This statutory definition “is different from and broader than the common law definition of an 'employee[,]' and “was adopted to further [the] important public policy [which] 'requires employers to pay the wages of working people who labor on their employer's behalf.'” Legg v. Johnson, Simmerman & Broughton, L.C., 213 W.Va. 53, 58, 576 S.E.2d 532, 537 (2002) (quoting Mullins v. Venable, 171 W.Va. 92, 96, 297 S.E.2d 866, 871 (1982).). See Szturm v. Huntington Blizzard Hockey Associates, 205 W.Va. 56, 61, 516 S.E.2d 267, 272 (1999) (holding that the statute's “broad definition” of “employee” applies to management employees).

The term “employee,” as broadly-defined in W.Va. Code §21-5-1(b) [1987], encompasses “ any person suffered or permitted to work by a person, firm or corporation.”

“'The word “any,” when used in a statute, should be construed to mean any.' Syl. pt. 2, Thomas v. Firestone Tire & Rubber Co., 164 W.Va. 763, 266 S.E.2d 905 (1980).” Syl. pt. 4, Williams v. W.Va. Dept. of Motor Vehicles, 187 W.Va. 406, 419 S.E.2d 474 (1992). Furthermore, as we held in syllabus point three of Ohio Cellular RSA v. Board of Public Works, 198 W.Va. 416, 481 S.E.2d 722 (1996), “'“[i]n the absence of any specific indication to the contrary, words used in a statute will be given their common, ordinary and accepted meaning.” Syl. Pt. 1, Tug Valley Recovery Center, Inc. v. Mingo County Commission, 164 W.Va. 94, 261 S.E.2d 165 (1979).' Syl. Pt. 1, Pennsylvania and W.Va. Supply Corp. v. Rose, 179 W.Va. 317, 368 S.E.2d 101 (1988).”

The word “any” is diversely defined, inter alia, as “one, a, an or some; one or more without specification or identification; whatever or whichever it may be; in whatever quantity or number, great or small; some; every; all.” Webster's Unabridged Dictionary, at p. 96 (Second Ed. 1998). Clearly, the meaning of “any” relevant to the statutorily-defined term “employee” is “every,” such that every (and therefore, any) person suffered or permitted to work by a person, firm or corporation is an “employee” within the meaning of W.Va. Code §21-5-1(b) [1987]. (See footnote 13) Thus, Petitioners' argument that physicians and others practicing a profession, as set forth in W.Va. Code §30-1-1, et seq, (See footnote 14) who are suffered or permitted to work by a person, firm or corporation, are not “employees” within the meaning of W.Va. Code §21-5-1(b) [1987] is simply not supported by the plain language of the statute. (See footnote 15)

Indeed, this Court is convinced that if the Legislature had intended to restrict recovery under the Wage Payment and Collection Act to certain categories of employees, it would have so indicated in the language of the Act, just as it did in other labor and employment statutes. See e.g., W.Va. Code §21-5C-1(f) [1999] (the term “employee,” under minimum wage and maximum hours laws, has various exclusions including, inter alia, “any individual employed in a bona fide professional, executive or administrative capacity”) and §21A-1A-17 [2002] (under unemployment compensation statutes, “employment” includes numerous exclusions). Instead, the Legislature elected to employ language which encompasses any person, regardless of occupation, trade, vocation or profession, who is suffered or permitted to work by a person, firm or corporation and thus, satisfies the statutory definition.

Accordingly, we hold that any person suffered or permitted to work by a person, firm or corporation is an “employee” under W.Va. Code §21-5-1(b) [1987] and is entitled to seek relief under the Wage Payment and Collection Act. In the instant case, Petitioners do not contend that Respondent's employment status was ever altered during his employment with Petitioner corporation; thus, Respondent's employment status was solely that of employee until he was discharged on October 9, 1999. Absent any evidence to the contrary, Respondent satisfied the expansive definition of “employee” and is entitled to seek damages and other applicable relief under the provisions of the Wage Payment and Collection Act. (See footnote 16)

IV.

CONCLUSION

For the reasons stated, we answer the certified question in the affirmative, as a physician, whose employment status is solely as an employee, is an “employee” within the meaning of W.Va. Code §21-5-1(b) [1987], and is, therefore, entitled to seek relief under the Wage Payment and Collection Act. Having answered the certified question presented by the Circuit Court of Ohio County, this case is dismissed from the docket of this Court.

Certified question answered; case dismissed.

Footnote: 1