620 S.E.2d 144 (2005) 218 W.Va. 4

Theresa D. MESSER, Appellant,
v.
HUNTINGTON ANESTHESIA GROUP, INC., Dr. Farouk Abadir, Dr. Hosney S. Gabriel, Dr. Mark Newfeld, Dr. Ricardo Ramos, Dr. Alfredo Rivas, Dr. D. Grant Shy, Dr. Stanislav Striz and Dr. Michael Vega, Appellees.

No. 31739.

Supreme Court of Appeals of West Virginia.

Submitted: March 22, 2005. Filed: July 7, 2005.

*146 Walt Auvil, The Employment Law Center, PLLC, Parkersburg, for Appellant.

Elizabeth D. Harter, Mark H. Dellinger, Bowles, Rice McDavid Graff & Love, LLP, Charleston, for Appellees.

Darrel V. McGraw, Jr., Attorney General, Jamie S. Alley, Assistant Attorney General, Paul R. Sheridan, Assistant Attorney General, West Virginia Attorney General's office, Charleston, for Amicus Curiae The West Virginia Human Rights Commission.

Justice BENJAMIN delivered the opinion of the Court.

Justice MAYNARD dissents and reserves the right to file a dissenting opinion.

BENJAMIN, Justice.

This case is before the Court upon the appeal of the Appellant, Theresa D. Messer ("Messer"), from the August 18, 2003, order of the Circuit Court of Cabell County, West Virginia, in Civil Action No. 02-C-0635, wherein the court granted the motion of the defendants, Huntington Anesthesia Group, Inc., Dr. Farouk Abadir, Dr. Hosny S. Gabriel, Dr. Mark Newfeld, Dr. Ricardo Ramos, Dr. Alfredo Rivas, Dr. D. Grant Shy, Dr. Stanislav Striz, Dr. Michael Vega, and David Easter (hereinafter collectively referred to as "Appellees"), to dismiss Appellant's complaint pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure for failure to state a claim upon which relief could be granted. In her complaint, Messer sought recovery under The West Virginia Human Rights Act ("the WVHRA") for both an aggravated or worsened physical injury and non-physical injuries stemming from the alleged refusal of Appellee Huntington Anesthesia Group, Inc., her employer, to accommodate her disability, a herniated disc at L4-L5. The circuit court made two findings in its August 18, 2003, order:

1. The West Virginia Human Right Act does not create a cause of action for workplace injuries;

2. Any injuries as alleged and sustained are the exclusive jurisdiction of the Workers' Compensation Act.

Appellant, Messer, asks this Court to reverse the circuit court's August 18, 2003, order because its findings are contrary to West Virginia law, to the holdings of the overwhelming majority of state courts which have considered the issue, and to formal guidance from the U.S. Equal Employment Opportunity Commission ("EEOC") on analogous federal civil rights protections. Messer's position is supported by the West Virginia Human Rights Commission ("HRC") in a brief as amicus curiae. Appellees, on the other hand, contend that Messer improperly seeks to expand the scope of the WVHRA, W. Va.Code § 5-11-1 et seq., to create a cause of action for workplace injuries in contravention of the exclusivity provisions of the West Virginia Workers' Compensation Act ("Workers' Compensation Act"), W. Va.Code §§ 23-2-6 (2003) and 6a (1949).

This Court has before it Appellant's petition for appeal, all matters of record, the briefs of the parties, the brief of the HRC as amicus curiae, and has heard oral argument of counsel. For the reasons stated below, the circuit court's order of August 18, 2003, is reversed, and this case is remanded to the circuit court to allow it to proceed, consistent with this opinion, without being barred by *147 the exclusivity provisions of the West Virginia Workers' Compensation Act.

I.

FACTS AND PROCEDURAL BACKGROUND

Since Appellant's complaint was dismissed at the pleading stage, the facts are largely as alleged therein, which, for purposes of a Rule 12(b)(6) motion, are to be taken as true. Sticklen v. Kittle, 168 W.Va. 147, 163, 287 S.E.2d 148, 157 (1981)(citing John W. Lodge Distributing Co. v. Texaco, 161 W.Va. 603, 605, 245 S.E.2d 157, 158 (1978)). Messer's complaint was filed on August 1, 2002. According to Appellees' brief, David Easter, the last named defendant, is deceased, and on January 28, 2003, the circuit court entered an order dismissing him from the action with prejudice and amending the case style accordingly.

The complaint alleges that Messer was employed as a Certified Registered Nurse Anesthetist by Appellees from September 13, 1988, until an unspecified date in September, 2000; and that at all relevant times, she suffered from a herniated disc at L4-L5, which limited her ability to lift, stand, and work. After January, 1998, Messer alleges that her primary treating physician informed Appellees on multiple occasions that Messer was limited to eight-hour work days, lifting restrictions, and that she should refrain from overtime "due to her injury." Messer asserts that Appellees ignored these restrictions and that Appellees failed to accommodate her physical handicap. As a result, Messer claims that her physical condition progressed and worsened to the point in September, 2000, that she was no longer able to perform her duties as a Certified Registered Nurse Anesthetist for Appellees.

The record is not fully developed as to the underlying injury which caused Messer's back problems or Messer's later aggravations. It is apparent to the Court from the thrust of Messer's arguments that her physical claims herein were largely, if not entirely, within the scope of coverage of the Workers' Compensation Act. Appellees claim that Messer sustained a compensable work-related back injury on August 8, 1997. A few years later, Appellees assert that Messer experienced an exacerbation of her compensable injury which required reopening of her workers' compensation claim in October of 2000. Appellees argue that Messer "... has received workers' compensation benefits for the injuries she alleges in the instant action." Messer's pleadings are silent as to the nature of her back injury or whether she, in fact, received workers' compensation benefits in whole or in part for the physical injuries alleged herein. Messer merely alleges that she "has at all times relevant hereto suffered from a herniated disc at L4-L5."^[1] In reply to Appellees' factual statements, Messer does not expressly deny such representations with respect to Messer filing a workers' compensation claim, reopening the claim, or receiving workers' compensation benefits for the injuries she alleges in the instant action. Although she states that "[t]here is no support in the record for several assertions made in the introduction to Appellees' brief because there has been no factual development in this matter," she does not identify *148 what those assertions are. Nor does she deny the representations which Appellees made in their Statement of Facts and Argument.

As noted above, the circuit court in an order issued on August 18, 2003, granted Appellees' motion pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure to dismiss Messer's complaint for failing to state a claim upon which relief could be granted. In so ordering, the court made two findings, namely, that the WVHRA does not create a cause of action for workplace injuries, and that such injuries are the exclusive jurisdiction of the Workers' Compensation Act.

II.

STANDARDS OF REVIEW

"Appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo." Syllabus point 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995). "The ultimate determination of whether qualified or statutory immunity bars a civil action is one of law for the court to determine. Therefore, unless there is a bona fide dispute as to the foundational or historical facts that underlie the immunity determination, the ultimate questions of statutory or qualified immunity are ripe for summary disposition." Syllabus point 1, Hutchison v. City of Huntington, 198 W.Va. 139, 479 S.E.2d 649 (1996).

III.

DISCUSSION

A.

The Issue on Appeal and the Nature of Appellant's Claims

This appeal presents the issue of whether the exclusivity provisions of the West Virginia Workers' Compensation Act shield an employer from the injuries directly caused by its unlawful discriminatory conduct against an employee in the workplace. Stated differently, we consider on this appeal whether an employee may seek to recover under the WVHRA for actual injuries caused not by an injury received in the course of and arising out of his or her employment for which workers' compensation benefits would ordinarily be payable, but rather for actual injuries of a kind for which workers' compensation benefits are not ordinarily payable, which flow directly and uniquely from the employer's unlawful discrimination against the employee. Key to our consideration of the issues presented are the important policies codified within the Workers' Compensation Act and the WVHRA, both systems of legislative creation. This consideration leads us necessarily to distinguish not only the nature of the acts alleged to have caused the claimed injuries, but also the type of injuries for which recovery is claimed and whether or not such injuries depend for their viability upon an injury which was compensable under the Workers' Compensation Act.

The essence of Messer's claims is that she sustained an aggravation or worsening of an underlying physical injury because of Appellees' refusal to abide by her work restrictions and that Appellees violated their obligation of accommodation and interaction under the WVHRA. In addition, she seeks recovery for non-physical injuries, which she describes as "emotional distress, mental distress and anguish," stemming from the same refusal and violation, and for the nonphysical injuries she is seeking, according to her complaint, "damages for mental and emotional distress, lost wages, value of lost benefits, cost and attorney fees, reinstatement, injunctive relief against future violations of the law, and such other and further relief as may upon the premises be appropriate." Messer contends some claimed injuries are not recoverable in a workers' compensation claim, but admits that others are. In its brief as amicus curiae, the HRC focuses its attention on Appellees' failure to accommodate, arguing "[a]n action alleging breach of the duty to reasonably accommodate is not an action for workplace injury compensation."

B.

The Workers' Compensation Act

(Its Exclusivity)

The essence of the exclusivity of the Workers' Compensation Act for work-related injuries *149 is found at W. Va.Code § 23-2-6 (2003), which provides that an employer "is not liable to respond in damages at common law or by statute for the injury or death of any employee, however occurring."^[2] In State ex rel. Abraham Linc Corporation v. Bedell, 216 W.Va. 99, 602 S.E.2d 542, 546-547 (2004) (per curiam), we had an opportunity to comment on the important principles underlying the Workers' Compensation system and the scope of this exclusivity provision of W. Va. Code § 23-2-6 (1991):

"The Workmen's Compensation Act was designed to remove negligently caused industrial accidents from the common law tort system." Mandolidis v. Elkins Indus., Inc., 161 W.Va. 695, 700, 246 S.E.2d 907, 911(1978), superseded by statute as stated in Handley v. Union Carbide Corp., 804 F.2d 265, 269 (4th Cir.1986). "The benefits of this system accrue both to the employer, who is relieved from common-law tort liability for negligently inflicted injuries, and to the employee, who is assured prompt payment of benefits." Meadows v. Lewis, 172 W.Va. 457, 469, 307 S.E.2d 625, 638 (1983); see also Persinger v. Peabody Coal Co., 196 W.Va. 707, 713, 474 S.E.2d 887, 893 (1996). State ex rel. Abraham Linc Corp., 216 W.Va. 99, 602 S.E.2d at 546. [In footnote seven, the Court stated: "That philosophy has commonly been described as a quid pro quo on both sides: in return for the purchase of insurance against job-related injuries, the employer receives tort immunity; in return for giving up the right to sue the employer, the employee receives swift and sure benefits." Dominion Caisson Corp. v. Clark, 614 A.2d 529, 532-33 (D.C.1992) quoting Meiggs v. Associated Builders, Inc. 545 A.2d 631, 634 (D.C.1988), cert. denied, 490 U.S. 1116, 109 S.Ct. 3178, 104 L.Ed.2d 1040 (1989).]

* * * * * *

As this Court succinctly stated in State ex rel. Frazier v. Hrko, 203 W.Va. 652, 510 S.E.2d 486 (1998), "`[w]hen an employer subscribes to and pays premiums into the Fund, and complies with all other requirement of the Act, the employer is entitled to immunity for any injury occurring to an employee and shall not be liable to respond in damages at common law or by statute.' W. Va.Code, 23-2-6 [1991]." 203 W.Va. at 659, 510 S.E.2d at 493. Footnote eleven of Frazier explained: "This statute is also known as the `exclusivity' provision, as it makes workers' compensation benefits the exclusive remedy for personal injuries sustained by an employee injured in the course of an resulting from his or her covered employment." Id. at 659 n. 11, 510 S.E.2d at 493 n. 11. State ex rel. Abraham Linc Corp., 216 W.Va. 99, 602 S.E.2d at 547.

The immunity provided by § 23-2-6 is not easily forfeited. As the District Court for the Southern District of West Virginia explained in Smith v. Monsanto Co., 822 F.Supp. 327 (S.D.W.Va.1992), "[u]nder the Act, an employer who is otherwise entitled to immunity under § 23-2-6 may lose immunity in only one of two ways: (1) by defaulting in payments required by the Act or otherwise failing to comply with the provisions of the Act, or (2) by deliberately intending to produce injury or death to the employee." 822 F.Supp. at 330 (citation omitted).

State ex rel. Abraham Linc Corp., 216 W.Va. 99, 602 S.E.2d at 547. The effect of this exclusivity is, by statute, far-reaching. In W. *150 Va.Code § 23-4-2(d)(1) and (2) (2003), the Legislature declared:

... that enactment of this chapter and the establishment of the workers' compensation system in this chapter was and is intended to remove from the common law tort system all disputes between or among employers and employees regarding the compensation to be received for injury or death to an employee except as expressly provided in this chapter ...; that the immunity established in sections six [§ 23-2-6] and six-a [§ 23-2-6a], article two of this chapter is [deemed] an essential aspect of this workers' compensation system; that the intent of the Legislature in providing immunity from common lawsuit was and is to protect those immunized from litigation outside the workers' compensation system except as expressly provided in this chapter; that, in enacting the immunity provisions of this chapter, the Legislature intended to create a legislative standard for loss of that immunity of more narrow application and containing more specific mandatory elements than the common law tort system concept and standard of willful, wanton and reckless misconduct; and that it was and is the legislative intent to promote prompt judicial resolution of the question of whether a suit prosecuted under the asserted authority of this section is or is not prohibited by the immunity granted under this chapter.

(2) The immunity from suit provided under this section and under section six-a, article two of this chapter may be lost only if the employer or person against whom liability is asserted acted with "deliberate intention". [sic]

Id. (Emphasis added).

When considered together, the words "injury" and "however occurring," in W. Va.Code § 23-2-6 (2003) and the expression of legislative intent in W. Va.Code § 23-4-2(d)(1) (2003) provide employers with an expansive immunity from liability outside the workers' compensation system for workplace injuries of employees.^[3] This immunity, however, is not absolute. Exceptions to this immunity are set forth specifically and implicitly in the Workers' Compensation Act.

While exceptions to the exclusivity provision of W. Va.Code § 23-2-6 (2003) exist, the Legislature has been extremely restrictive in creating such exceptions. For example, an employer is not immune from lawsuit for workplace injuries if the employer "acted with deliberate intention." W. Va.Code § 23-4-2(d)(2) (2003).^[4] Messer does not claim that she comes within this exception.

The Legislature has also specifically set forth private civil remedies outside of the exclusivity provision for certain discriminatory practices by an employer related to employees who have compensable injuries. W. *151 Va.Code § 23-5A-1, et seq.^[5] Though Messer apparently does not invoke these anti-discrimination provisions of the Workers' Compensation Act, we do find such provisions revealing with respect to the types of acts and resulting injuries which the Legislature has envisioned to fall within and without of the exclusivity provision of W. Va.Code § 23-2-6 (2003).

These exceptions reveal that the most significant word in the exclusivity provision of W. Va.Code § 23-2-6 (2003) for purposes of the issues before us in the instant matter is the term "injury". In considering any potential exception to the exclusivity provision, i.e., that an employer "is not liable to respond in damages at common law or by statute for the injury or death of any employee, however occurring," we must look to the other provisions of the Workers' Compensation Act to determine the Legislature's intent in defining what is and what is not a compensable "injury" for purposes of the exclusivity provision. Id. W. Va.Code § 23-4-1, et seq., establishes that injuries and defined occupational diseases incurred "in the course of and resulting from [an employee's] covered employment" are compensable injuries. W. Va.Code, § 23-4-1, et seq. Implicit in this statutory definition of "injury" is the limitation that only occupational diseases "as hereinafter defined" are compensable. W. Va.Code § 23-4-1(b) (2003). We must draw from this express limitation that the Legislature intended certain work-related events, here, occupational diseases not "hereinafter defined" to not come within the meaning of "injury" for purposes of the Workers' Compensation Act generally and the exclusivity provision specifically.

The Legislature also expressly exempted other work-related injuries from the definition of what may be a compensable injury for purposes of the Workers' Compensation Act. For instance, W. Va.Code § 23-4-1f (1993) states that "[f]or the purposes of this chapter, no alleged injury or disease shall be recognized as a compensable injury or disease which was solely caused by nonphysical means and which did not result in any physical injury or disease to the person claiming benefits. It is the purpose of this section to clarify that so-called mental-mental claims are not compensable under this chapter."^[6]

To this list of work-related injuries exempted from the provisions of the Workers' Compensation Act (and, consequently, from the exclusivity provision of W. Va.Code § 23-2-6 (2003)), are the other express statutory exceptions within the Workers' Compensation *152 Act discussed above; namely, injuries caused by an employer's "deliberate intention," as defined by W. Va.Code § 23-4-2 (2003), and injuries caused by certain discriminatory actions by an employer, as set forth in W. Va.Code § 23-5A-1, et seq. We find these latter two exceptions especially noteworthy for purposes of the matter before us since, in both instances, the Legislature has focused on the acts which underlie the resulting work-related injury as being determinative of whether the exclusivity provision is applicable.

C.

The West Virginia Human Rights Act

The purpose of the WVHRA^[7] is, among other things, to assure equal employment opportunities to individuals with certain disabilities by making certain discriminatory practices unlawful. W. Va.Code § 5-11-9 (1998).^[8] "The term `discriminate' or `discrimination' means to exclude from, or fail or refuse to extend to, a person equal opportunities because of ... disability ...." W. Va. Code § 5-11-3(h) (1998). Disability means a mental or physical impairment which substantially limits one or more of a person's major life activities. W. Va.Code § 5-11-3(m) (1998).^[9]

Effective May 19, 1994, the HRC adopted legislative "Rules Regarding Discrimination Against Individuals With Disabilities," which appear in W. Va.C.S.R. § 77-1-1 et seq. W. Va.C.S.R. § 77-1-4.5 obligates an employer to "make reasonable accommodation to the known physical or mental impairments of qualified individuals with disabilities where necessary to enable a qualified individual with a disability to perform the essential functions of the job."

In Skaggs v. Elk Run Coal Company, Inc., 198 W.Va. 51, 64, 479 S.E.2d 561, 574 (1996), this Court acknowledged that although the WVHRA does not have an explicit provision obligating employers to provide reasonable accommodation for disabled individuals, "the West Virginia [HRC] and this Court have inferred that our [HRA] imposes this duty of reasonable accommodation." In support of this observation, the Skaggs Court referenced 77 W. Va.C.S.R. 1, § 4.4 (1994) and Morris Mem. Convalescent Nursing Home, *153 Inc. v. W. Va. Human Rights Comm'n., 189 W.Va. 314, 431 S.E.2d 353 (1993), and Coffman v. W. Va. Bd. of Regents, 182 W.Va. 73, 386 S.E.2d 1 (1988).

This Court's decision in Coffman is remarkable in three respects: It was this Court's first disability discrimination case under the WVHRA, it was later overruled, and it foreshadowed the issue on appeal in this case. Coffman, while employed as a Custodian I at the West Virginia University Hospital, injured her back in emptying garbage cans. She missed a month's work because of her injuries during which time she received temporary total disability benefits from workers' compensation. Upon returning to her position as Custodian I, her back continued to be painful and an orthopedist who examined her recommended that Coffman no longer work in either the housekeeping or dietary departments and that she not be placed in a position that required prolonged sitting. Some two months later, her employment was terminated by her employer. She thereupon filed a complaint in the Circuit Court of Monongalia County charging that she had been wrongfully discharged because of her disability. A jury returned a verdict in her favor in the amount of $55,600. The Board of Regents appealed and this Court reversed the judgment of the circuit court, set the verdict aside, and remanded the case with instructions to enter judgment in favor of the employer. The basis of this Court's decision was that

"reasonable accommodation" requires only that an employer make reasonable modifications or adjustments designed as attempts to enable a handicapped employer to remain in the position for which he was hired. Where a handicapped employee can no longer perform the essential functions of that position, reasonable accommodation does not require the employer to reassign him to another position in order to provide him with work which he can perform.

Id. at 78, 386 S.E.2d at 6.

Skaggs overruled Coffman and in doing so stated that "Coffman was flat out wrong, both on its facts and in its dicta ruling out transfers as a reasonable accommodation." 198 W.Va. at 69, 479 S.E.2d at 579. However, Coffman is of interest to our consideration of the issues in the present matter. In its footnote 16, the Coffman Court stated:

No party has challenged the fact and we, therefore, acknowledge that Coffman was handicapped by West Virginia law. We, however, note that she became handicapped as a result of an injury sustained on the job during the course of her employment. In this regard, we are concerned as to why Coffman did not pursue a claim for workers' compensation benefits beyond the 30-day period of temporary total disability. The appellants do not raise the issue of workers' compensation and we, therefore, do not address it. We note that the intent of the legislature inherent in the enacting of the handicapped provisions of the West Virginia Human Rights Act was to assure equal opportunities for the handicapped in housing and employment. W. Va.Code § 5-11-2. Thus, we cannot conclude that the legislature intended the handicapped provisions of the West Virginia Human Rights Act as an alternative source of compensation for injuries sustained on the job.

Coffman, 182 W.Va. at 79, 386 S.E.2d at 7. (Emphasis added.)

In a dissenting opinion to the Coffman decision, Justice Miller stated that he was "at a loss to understand footnote 16 of the majority's opinion [for][i]t seems to suggest that the legislature did not intend to accord handicapped workers any right if they were injured on the job." Id. at 85, 386 S.E.2d at 13. Justice Miller went on to observe "that workers' compensation benefits [both awards for temporary and permanent disability] relate to the employee's injuries and have nothing to do with his status under the handicap law. This latter provision is designed to prevent discrimination against a person who has a handicap." Id. at 85-86, 386 S.E.2d at 13-14. "Nor," he said, "is it possible to ascribe any legislative intent that employees handicapped as a result of occupational injuries were to be excluded from the coverage of the handicap discrimination law." Id. at 86, 386 S.E.2d at 14. Justice Miller concluded his dissent with these statements:

*154 This type of issue has been raised in several cases, and the courts have had no difficulty in rejecting it on the basis that each statute is designed to accomplish distinctly different purposes. The Workers' Compensation Act affords compensation for a worker's injuries and permanent disabilities. The handicap provisions of the Human Rights Act enables him to continue in employment if his injuries do not prevent him from performing the essential functions of his job with the help of reasonable accommodation. E.g. Boscaglia v. Michigan Bell Telephone Co., 420 Mich. 308, 362 N.W.2d 642 (1984); Reese v. Sears, Roebuck & Co., 107 Wash.2d 563, 731 P.2d 497 (1987) (En Banc); cf. Jones v. Los Angeles Community College Dist., 198 Cal. App.3d 794, 244 Cal.Rptr. 37 (1988).

Id. at 86, 386 S.E.2d at 14.

In the sixteen years since Justice Miller's dissent in Coffman, there have been a number of decisions in other jurisdictions where alleged employer disability discrimination against an employee has resulted from a workplace physical injury. In those decisions, the courts have had to reconcile the exclusivity provisions of their states' workers' compensation statutes and their human rights, civil rights and fair employment acts.

D.

Employment-Related Injuries: Workers' Compensation and Civil Rights Coverage

Cases From Other Jurisdictions

A review of the status of law regarding the interaction of workers' compensation laws and civil rights laws from other jurisdictions in the United States provides a valuable insight into how other states have considered the issue before us herein. While each state necessarily has its own unique set of workers' compensation and civil rights laws, the underlying public policies for such laws have many similarities to our workers' compensation and civil rights laws. Though not precedential, a look to other states provides us some persuasive direction into our consideration of this appeal.

1. Arkansas

In Davis v. Dillmeier Enterprises, Inc., 330 Ark. 545, 956 S.W.2d 155 (1997), Davis sustained bilateral carpal syndrome resulting from her employment for which she was compensated under Arkansas' workers' compensation laws. 956 S.W.2d at 156. She was assigned a rating of five percent permanent physical impairment in each upper extremity. Having obtained a release from further treatment, Davis reported to work and was immediately terminated from employment by her employer. She thereupon brought an action against her former employer for discrimination based upon a physical disability, in violation of the Arkansas Civil Rights Act for which she claimed damages in the form of lost wages, mental anguish, and loss of dignity. She also asked for punitive damages. The trial court dismissed the complaint "reasoning that it was the General Assembly's intent that the remedies provided under the Workers' Compensation Act were to be exclusive." Id. at 157.

Distinguishing the injury sustained by Davis by her termination from that caused by her compensable physical injury, the Supreme Court of Arkansas reversed the trial court's dismissal of Davis' complaint and remanded the case to allow Davis to proceed with her termination claim under the Arkansas Civil Rights Act. The Court reasoned as follows:

[T]here is no remedy under the Workers' Compensation Act for an employee who is terminated from his or her job on the basis of a disability. Thus, the exclusive-remedy provision of the Act does not preclude Appellant from bringing an action under the Arkansas Civil Rights Act based upon Appellee's alleged discrimination in terminating her on the bases of her permanent restrictions and impairments. In this respect, we agree with the reasoning espoused by the Washington Supreme Court [in Reese v. Sears, Roebuck & Co., 107 Wash.2d 563, 731 P.2d 497 (Wash.1987), overruled on other grounds by Phillips v. City of Seattle, 111 Wash.2d 903, 766 P.2d 1099 (Wash.1989)] that it matters not how the disability came about; rather, the focus should be upon the subsequent deliberate *155 action by the employer in terminating the employee based upon a disability. Additionally, we are persuaded that the rights and remedies provided by both Acts are considerably different and serve to fulfill different purposes. Appellant has alleged two separate injuries-one being a work-related physical injury, for which she has received workers' compensation benefits, and one being a subsequent nonphysical injury arising from Appellee's action in terminating her based upon her physical disability. The first injury is exclusively cognizable under the Workers' Compensation Act, while the subsequent injury is of the type envisioned by the Arkansas Civil Rights Act of 1993.

Id. at 160-61. (Emphasis added.)

2. California

In City of Moorpark v. Superior Court of Ventura County, 18 Cal.4th 1143, 77 Cal. Rptr.2d 445, 959 P.2d 752 (1998), plaintiff was an administrative secretary employed by the city who suffered a work-related knee injury. Her supervisor terminated her employment because her injury prevented her from performing essential job functions. Plaintiff filed a lawsuit against the city claiming discrimination based on a physical disability in violation of California's Fair Employment and Housing Act (FEHA). The city defended asserting that plaintiff's action was barred by the exclusivity provisions of the workers' compensation law. The trial court disagreed and the Supreme Court of California affirmed.

At issue in Moorpark was whether California Labor Code section 132a provided the exclusive remedy for discrimination based on a work-related disability, precluding FEHA or common law wrongful discharge claims. Section 132a prohibited employers from discriminating against employees "who are injured in the course and scope of their employment." City of Moorpark, 77 Cal. Rptr.2d 445, 959 P.2d at 756. The California court had earlier ruled that when an injury of the kind described in section 132a results in disability, that section prohibits discrimination based on the disability. Judson Steel Corp. v. Workers' Comp. Appeals Bd., 22 Cal.3d 658, 150 Cal.Rptr. 250, 586 P.2d 564 (1978). In addition, the FEHA prohibited various types of employment discrimination, including discrimination based on a disability.

The Moorpark court found that the existence of a workers' compensation remedy does not, by itself, establish the exclusivity of that remedy, and emphasized that section 132a does not contain an exclusive remedy clause. Id. at 1154,