What was the worker doing?

British India was always an odd blend of compassion and ruthlessness.  By the 1920s, the Raj had enacted workers’ compensation laws for the subcontinent.  It then proceeded to enforce them fairly ruthlessly.

In about 1936 Mr Maung Ba Aye was employed by the Bombay Burmah Trading Corporation as an elephant handler.  On the day in question, however, he had been asked to hand-deliver a letter between two company officials.  On his way back he was attacked by a bear, suffering fatal injuries.  The Commissioner for Workmen’s Compensation ordered that compensation be paid to the deceased’s mother.  The Company appealed to the High Court of Burma, stating that the deceased was not a worker at the relevant time.

Elephant at work - Rangoon
Elephant working in Rangoon, 1907 (Image from here)

The Workmen’s Compensation Act 1923 (Br. Ind.) relevantly defined a workman at 2(1)(n) as

… any person … who is –…

(ii) employed in any such capacity as is specified in Schedule II [which included employment”in the training, keeping or working of elephants or wild animals”] …;

Roberts CJ considered that the Act was a “quasi-penal statute” and so it should be read strictly rather than leniently.  As a result –

it is clear that at the time that the deceased was being sent out on a message to Mr. Barlow he was not employed in the task of training, keeping or working of elephants or wild animals. He was a person who was normally employed in that capacity, but was being given other duties to perform on that particular day. … [B]eing obliged to administer the Act as it stands,we are constrained to say that the deceased was not a workman within the meaning of the Act for the  pur­poses of this appeal.

A similar line of reasoning was followed by Dunkley J.  As a result the employer could not be ordered to pay compensation in relation to the death.

Bombay Burmah Trading Corp’n Ltd v Ma E Nun, AIR 1937 Rang 45

But it doesn’t *say* that!

A fascinatingly technical decision recently came out of the West Virginia Supreme Court of Appeals.  The case is a good demonstration of the principle expressio unius est exclusio alterius.

William Moran was a Rhode Islander and employed by a construction company in that state.  The company sent him to work on a construction project in West Virginia in January 2012.  While there he died of carbon monoxide poisoning at a hotel.  His wife lodged claims for worker’s compensation in both West Virginia and Rhode Island.  Liability was accepted in both claims, although no benefits were actually paid on the West Virginia claim because the $711.30 weekly benefits which would have been payable were cancelled out by the $765.15 per week payable under the Rhode Island claim.  West Virginia Code §23-2-1c(d) provides that

If any employee or his or her dependents are awarded workers’ compensation benefits or recover damages from the employer under the laws of another state for an injury received in the course of and resulting from the employment, the amount awarded or recovered, whether paid or to be paid in future installments, shall be credited against the amount of any benefits payable under this chapter for the same injury.

Mrs Moran subsequently reached a damages settlement with a number of defendants in connection with her husband’s death. Rhode Island law required her workers’ compensation benefits to be suspended.  The quantum of the settlement was such that the suspension would be greater than her life expectancy.  She then requested reinstatement of her West Virginia claim benefits.  A claims administrator and two review bodies determined that her Rhode Island benefits, though suspended, still cancelled out any West Virginia benefits.  Mrs Moran appealed to the West Virginia Supreme Court of Appeals.

experessio
Image from here

The Court upheld the appeal.  It concluded that the Code intended West Virginian benefits to be payable in a case such as Mrs Moran’s.  The Code applied a credit only for workers’ compensation benefits or damages recovered from the employer.  Absent reference to recovery from a third party, the legislature must have intended the section not to apply to such recoveries.  Further, where payments were suspended, benefits were not being paid and so the section was not engaged.

Because W. Va. Code § 23-2-1c(d) does not provide that suspended benefits awarded under the laws of another state be credited against workers’ compensation benefits awarded pursuant to West Virginia law, it is not the proper role of this Court to create such a credit.

Moran v Rosciti Construction Co LLC (W. Va Sup. Ct App., 4 June 2018)