*1 S.E.2d 769 SKAGGS, Shelby Plaintiff D.

Below, Appellant CORP., COAL ASSOCIATED

EASTERN Below, Appellee.

Defendant 30190.

No. Appeals of

Supreme Court of Virginia.

West 1,May 2002.

Submitted: 28, 2002.

Decided: June

Concurring Opinion of Chief Justice July

Davis

summary judgment order and remand the for -proceedings. further I. Background &

Facts Plaintiff-appellant Shelby Skaggs D. was employed motor as a man defendant- for appellee Corpora- Eastern Associated Coal tion and during was course of as a result of his on October plaintiff 1997. The filed a claim for workers’ compensation Virginia benefits the West Division, Compensation Workers’ and re- disability temporary ceived total benefits during recovery. his apparently policy defendant a had mandating workers submit to a capacity functional being evaluation before allowed to to work. In a letter writ- plaintiffs ten to the doctor on October days plaintiffs injury, after the compensation workers’ claims administrator Forman, Crane, Roger D. Michael R. For- working on the defendant’s behalf stated: Crane, L.C., Charleston, man & Appel- for Corporation Eastern Associated Coal is lant. participating Program in Rehabilitation McGowan, Ramey, Steven P. Ancil G. Han- approved by Compensation Johnson, Curry, Steptoe P.L.L.C., nah B. & part program, Division. As of this East- Charleston, Appellee. for ern Corporation employ- Associated Coal required ees complete a Functional STARCHER, Justice: Capacity .... Evaluation In appeal this from the Circuit Court of Please do not return claimant to work County, Boone we are asked to examine prior capacity to the initial functional eval- granting judgment against order uation as cannot their plaintiff-employee alleges who he was termi- being them without evaluation com- job, thereby nated from his discrimi- pleted. against by defendant-employer, nated policy, compensation company accordance with this on workers’ benefits. 6,1998, April alleges plaintiff apparently The defendant before the vol- healed, injuries untarily accepted fully workers’ was services, required doing by habilitation and in so volun- defendant to submit to a tarily report “functional capacity indicated he was ever return evaluation.” The unable to' job' hence, job generated to his evaluator stated that was terminated. — work, however, engage light but that alleges could the defen- currently complicated to return to employing dant “is unable scheme to position Motorman[.]” use the his former as way employees of removing in- later, Several months jured payroll. on from its evaluated two different doctors-Dr. Paul below, carefully August

As set forth after examin- Bachwdtt in Dr. 1998 and John ing genuine Kroening we find record issues of 1998. Both doctors December fully material fact remain consideration concluded that recov- degree finder fact. We reverse the circuit court’s his maximum ered reached being refeiTed to Based these Genex improvement. Di- evaluations, Services, Inc., “pi'ovides vo- company temporary to- suspended the vision cational rehabilitation services 29, 1998, disability December tal previous job who cannot return *3 perma- 4% was awarded a and the any capacity.” The letter noted that the disability award. partial nent program voluntary, l'ehabilitation and agreeing participate “[ujpon to in this report indicated the Dr. Bachwitt’s continuing participate, to program and while cus- to his plaintiff “could return time” plaintiff] ... eligible will be l'eeeive [the the tomary duties with defendant tempo- workers’ the put be returned work “should either rarily totally disabled rate.” Ba- hardening program.” Dr. into a work that he felt the claimant indicated chwitt also representative The met with a for vocational was a candidate rehabilitation 1, 1999, signed Genex on June all vocational “I feel individuals are because Regarding document entitled “Notification Kroening Dr. rehabilitation candidates.” Hierarchy ... of Re- Rehabilitation Services plaintiff did similarly reported that the not with habilitation Services.” In accordance “restrictions, accommodations or need regulations promulgated carry ... out usual activi- strictive devices Division,1 the document listed occupational appropriate ties or meet steps hierarchy “required the seven the of demands,” did would be “[i]t but state l'ehabilitation services” as follows: hyperextension of to avoid the reasonable neck.” employee pre- 1. Return of the to the injury job employer. with the same

The defendant’s third-party ad- managed claims were 2. pre- Return of the May ministrator called Acordia. On injury job employer with the same with compensation specialist” at a “senior tasks, modification of work structure defendant, Acordia, acting on of behalf work hours. letter wrote a The letter employment pre- 3. Return to with that, capaci- functional stated based ty reports, injury employer position. in a two doctors’ different evaluation injured § regulation, 1. 4.1.1. Return of the worker to the The 85 C.S.R. 15-4 establishes following "priorities” that are to be preinjury job employer; seven with the same providing services. followed in injured of 4.1.2. Return worker to the specify regulations The that the workers’ com preinjury job employer and with the same pensation must the lower- commissioner priorities use task, with modification work of structure unless commissioner— numbered hours; provid private rehabilitation service injured 4.1.3. Return of the worker to em- priorities "inap that those are er—determines ployment employer with the same in a differ- Only injured propriate” for the claimant. position; ent may priority attempted. higher-numbered be injured 4.1.4. Return of worker to em- See rel. 212 W.Va. State ex McKenzie ployment position in a different with the 288, -, (2002). 569 S.E.2d on-the-job training; employer same and with regulation states: Employment injured 4.1.5. worker professionals 4.1.Qualified employer training; a new and without high- following priorities. must utilize On-the-job training injured 4.1.6. may priority er numbered utilized unless employment worker for with a new has determined that all low- tlie commissioner er; or priorities unlikely er to result in numbered injured 4.1.7. Enrollment worker injured placement worker into suit- retraining program which consists of a gainful employment. If num- able a lower goal-oriented period retraining de- of formal clearly priority inappropriate bered for the signed gainful employ- to lead suitable worker, higher pri- next numbered market; provided, ment in labor ority must be utilized. expectation there exists reasonable explicitly rationale slate reasons and actually obtaining rejection priori- worker em- for the lower such numbered ty. priorities ployment upon program. completion are as follows: employment pre-injury tiff —as well 4. Return rec- on-the-job training. employer employment ords —his was terminated. Employment with a new 5. plaintiff, however, argues that when training. without signed he the document he did intend to On-the-job training “voluntarily” give up 6. with the defen- instead, employer. argues with new he signed he the docu- dant — ment intending to rehabilita- whatever Retraining which shall of a consist provide. services Genex would He also period retraining goal-oriented formal argues support that his medical records designed gain- which is lead to suitable he could prior position. return work at his ful contends states, top, document also at the *4 Step his “[cjlear referral to at Five was objective documentation must exist part of a complex by scheme the defendant indicating that lower numbered is against employees to discriminate who given re- appropriate in the claim not before compensation ceive workers’ benefits. He higher can be number considered.” contrary that asserts to the statement at the is At the bottom of document the state- document, top of the Genex had no “clear “explained that those ment Genex reha- objective indicating documentation ... that services could made be avail- plants]” appro- the lower not numbered were to the and had able” “recommended priate plaintiffs plaintiff ease. hierarchy 5 of number produced asserts the defendant no has words, In other recom- services.” Genex indicating why Steps documentation One plaintiff employed with a mended through hierarchy Four of the rehabilitation training. without new Instead, ignored. were contends checked box at the bottom directly Step he was referred to Five of stating “willing agree[d] par- was and to he hierarchy primarily the rehabilitation be- ticipate in at rehabilitation services this company policy cause of an unwritten time,” signed the document. defendant. Subsequently, July approxi- policy, As evidence of unwritten mately signing six after weeks the Genex deposition of cites to the the senior document, was a form sent letter compensation who specialist at Acordia re- by informing employ- him the defendant his plaintiff for ferred the rehabilitation. She ment was terminated because has been “[i]t testified that: your determined from medical records that A. Employer Managed Under Eastern’s physical your is such is [sic] condition get Rehab Plan claims don’t referred to a prevents you returning regular your to specialist Step rehab until it is 5 of the at is work mention made in mine.” hierarchy, they can’t which means signed the letter about Genex document preinjury employer. to work for the And by Step seeking employment with a is new defendant, however, now characterizes employer.... as, essentially, a con- the Genex document Q. that it Who made the decision was at by agreement tractual Step 5? ... with goal services of ob- A. The records in the file deter- taining employment employer. with a new capable returning that was mined he words, interpreted In other the defendant preinjury employer, Steps to the which “voluntary” acceptance generated by 1-4. was The file me as his bilitation services written concession manager on the claim.... nurse/case physical going his condition was not Q. improve, prevented by by and that he was was his So the time the referral made you, physical returning given condition from ever was the time the file you, somebody with the defendant. On the ba- decision that made the “voluntary” plain- it Step of this statement was at 5? sis action on the instant filed A. Yes. 30, 1999,2 that he alleging was September specialist testified the Acorcha against illegally dis- discriminated- defendant were job charged from on account his re- anything to rehabilitation never referred benefits, ceipt of workers’ Step Five. stated: than She other [1978], W.Va,.Code, 23-5A-1 violation with Associated Eastern A. We theory that the rehabilitation closely and know that there is Coal process utilized the defendant dis- injured work- duty available for modified criminatory in nature. they preinjury If can’t return to their ers. discovery, particular- conducting available for After job, there is no work ly above-quoted deposition, after claims-review We discuss it at them.... complaint plaintiff moved to amend meetings telephone conversations.... add as defendants Acordia Genex. He Q. You have had discussions certify as a moved to the case class also you meetings and at conversations ees action, arguing showed that that the evidence your you that if can’t return know jobs people up to 50 other had lost you are at preinjury Eastern allegedly due discrimi- the defendant 5.... natory use of A. Yes. *5 system by the defendant. habilitation in- Q. many you done How cases have upon The circuit court did not rule the volving people the Eastern referrals Instead, motions. motion rehab? defendant, granted circuit court the give you specific couldn’t number A. I summary judgment against the 50, Probably closer and that is an .... 2001, 7, the circuit an order dated June court estimate. voluntarily signed plaintiff found that the the you Q. every those cases So one of “agreement” accept rehabilitation services they aware that if couldn’t have been goal obtaining employment with a “with Step 5 past they are at ton to their also employer.” circuit court found new go they agree if into rehab? plaintiff temporary that the received total A. Yes.... disability while rehabilita- benefits policy Q. you that a that Would consider services, plaintiff and that tion never you following? ... are If someone comes provid- objected to services the rehabilitation rehab, they you with a referral ed the defendant. 5? plain- circuit that the court concluded A. Yes. “voluntarily participated in the tiff rehabilita- Q. published anywhere? Is that program developed tyith in accordance regulations A. No. promulgated by the rules Compensation Workers’ Division.” Because you Q. Is it in documents have partic- plaintiff “acknowledged that his seen? inability ipation upon his to work was based A. No. Eastern,” circuit court ruled that Q. something you know But it is “voluntarily plaintiff could not routinely? program complain and then A. Yes. to them.” that he was entitled Q. exception? ... Without circuit court therefore held exception. failed to the elements of a A. I have never had an establish history ducting investigation, plain- procedural an abandoned 2. The of this case is somewhat se, initially plaintiff, acting pro convoluted. The "deliberate cause of action. The tiff’s intent” alleging defen- filed the instant action that the complaint later assert amended him, deliberately intentionally dant harmed of the Workers’ discrimination violation Com- W.Va.Cocle, [1994], in violation of 23-4-2 pensation Act. who, attorney hired an after con- later

253 held, wrongful discharge Syllabus of action under This Court Point 1 cause of Pow- Act, Cablevision, Inc., Wyoming v. granted ell 184 W.Va. (1991), S.E.2d 717 judgment to defendant. prima In order to make a facie circuit appeals now court’s Code, 23-5A-1, discrimination under W.Va. 7, 2001 June order. (1) prove that: an on- sustained; (2) the-job injury proceed- II. ings were under the instituted Workei’s’ Painter Nat. v. Federal Ins. granting summary judgment was established West ^[1998] inquiry concerning able to Syllabus summary judgment accord, Syllabus (1994), A motion for no 133 S.E.2d 770 granted only Bank v. Virginia de novo. genuine As we clarify Peavy, we Point 3 of Aetna Cos. & Sur. Co. Standard of review Co. New Lilly, stated issue of The traditional standard for Rules summary judgment 192 W.Va. when Point (1963) application a circuit court’s under Rule 56 of the 199 it is clear that fact to be Review Syllabus facts *6 1, Civil Procedure W.Va. York, where we held: Fayette County is not desir- of the law. Point 1 tried and 349, should entry there 484 because the that his he plaintiff introduced no evidence whatsoever The defendant and filed a workers’ The defendant has satisfied the first two elements of signing the Genex ee. The defendant seq.; pensation otherwise discriminate Compensation Act, W.Va.Code, 23-1-1, et could not filing employer’s evidence discharge of a workers’ (3) claim was a was return to argues argues, in only concedes inwas decision document, filing the ease established that capable that the work,’’and significant against however, of a workers’ com- any way on-the-job “admitted that of functioning discharge plaintiff, by related to factor in Powell, injury claim. claim. (1997); Syllabus 1, 232 Point S.E.2d light physical at the demand level. The de- Coil, Inc., v. 194 Williams Precision W.Va. fendant therefore it was within contends its 52, (1995); 2, Syllabus 459 S.E.2d 329 rights Point to terminate the because he Painter, supra. medically was unable to ever return to his regular job. mind,

With this standard in we examine arguments plaintiff. however, plaintiff, argues The first finder of fact draw could inferences from in the circumstances and documents III. record that are favorable to the Discussion summary judgment inap was therefore clear, propriate. As this has Court made appeal The contends that sum- considering for courts motions mary judgment improper genu- because judgment permissible “must draw infer questions regarding ine of material fact exist underlying light from facts in ence unlawfully whether the defendant discrimi- party opposing most favorable to the against nated Peavy, motion.” Painter 192 v. W.Va. at Act Workers’ 192, “Summary judgment 451 S.E.2d at 758. (“the Act”), W.Va.Code, 23-5A-1 [1978] es should be denied ‘even where there is no against following prohibition tablishes the dispute evidentiary in as to the facts the discrimination: only as to to be drawn but the conclusions ” Coil, in shall discriminate therefrom.’ Williams Precision Inc., 52, 59, 329, against any present his 194 459 manner or for- W.Va. 336 (1995), Co., present quoting of such Ford mer because or Pierce v. Motor (4th Cir.), denied, employee’s receipt attempt former of or cert. to F.2d 342 U.S. (1951). chapter. receive benefits 96 L.Ed. 666 under S.Ct. limbs, approved appli- or other mechanical that the Genex docu- plaintiff asserts medicines, medical, ances, surgical, dental “admission” that he could not an ment was Eastern, W.Va,Code, hospital and that 23-i- treatment^]” to his 9(b) interpretation: [1999]. has an alternate the document acknowledgment merely the it was However, clearly requires that the the Act voluntarily participating in the that he Compensation Commissioner —and defendant’s plan created employers agents develop or them — Furthermore, plaintiff as- agent, Genex. plan. W.Va. direct a claimant’s rehabilitation from the finder could infer that a fact serts 4—9(b)states, Code, part: pertinent 23— doctors all and his believed that he record shall at the earliest [T]he commissioner job. return to his along that he could possible whether the em- time determine inferences, these contends returning to ployee would be assisted position, favorable to the which are provi- employment with the remunerative existing record and from the can be derived and if the services sion of rehabilitation therefore erred circuit court commissioner determines summaiy judgment. granting vocationally physically ee can be suggests that he did not re- commissioner shall forth- bilitated prevented from he was turn to woi'k because develop plan for the a rehabilitation policies, which doing so the defendant’s and, em- after due notice “voluntarily” par- thereby compelled him may ployer, expend such an amount as be program ticipate in a rehabilitation —and necessary purposes[.] aforesaid program participation in provides that “it is the the Act termination resulted employer, responsibility of shared therefore, is argument, plaintiffs second employee, physician and the commission- evidence, deposition particularly the that the cooperate development of a reha- er to specialist, estab- of the Acordia promote process designed to reem- misusing the lishes the defendant injured employee.” ployment for the compensation rehabilitation 23-4-9(a). However, Code, any rehabilita- who have been serious- to terminate workers process “pursuant to a rehabili- ly injured in course of and as result by a plan developed and monitored tation employment. The asserts professional each violating the rules and stat- the defendant is *7 23-4-9(b). W.Va.Code, employee.” concerning workers’ utes per- recently interpreted the statutes We injured only referring workers by taining to rehabilitation in State ex rel. Five, whereby to at rehabilitation McKenzie W.Va. injured employment with must seek worker (2002). McKenzie, we were S.E.2d 809 employer without another “employer’s system a of asked to examine training. plaintiff argues habilitation or preferred providers for rehabilitation ser- system of the rehabilitation this use instant case. vices” similar to that under the Act. constitutes discrimination prohibit petitioner sought in that argu- of this begin our consideration We Compensation the Workers’ Commissioner compensa- by examining the workers’ ment exclusively referring from claimants to reha- system. provides Act tion rehabilitation providers who had contracts bilitation service per- to workers’ who have “received employers claimants’ to be the “em- with the resulting injuries in of and sonal the course provider.” ployer’s preferred employment[.]” from covered W.Va. them McKenzie, held, Code, Syllabus at Point 8 of benefits available We [1989]. 23-4-1 empowered only is services such as “voca- the Commissioner include rehabilitation develop Compensation Act to on-the-job training, counseling, as- tional or injured employee, plan for an obtaining appropriate temporary rehabilitation sistance in joint site, plan should be a effort permanent or work but such or work duties claimant, modification, crutches, employer, hours artificial between the physician, profes- together, purpose claimant’s a rehabilitation Taken the beneficent sional, provisions protect and the Commissioner: these two “is to a claim- determining ant’s interest in her own When the Workers’ Com- inju- course of for a compensable treatment

missioner determines that a claimant is a ry.” at-, 212 W.Va. at 820. services, candidate for rehabilitation the claimant’s rehabilitation plan, rehabilitation claimant’s Commissioner sioner to develop and monitor Code, claimant’s and the cooperate 23-4-9 develop physician plan. ^[1999] employer, must, rehabilitation and the Commissioner requires with the assistance of implement plan development the rehabilitation services. claimant, the Commis- professional vider to for rehabilitation services” was unenforceable er” under an [1995]. ant to seek initial treatment from a rehabili- We using employer would violate concluded McKenzie that a the Act. services to be the Second, requiring an “employer’s and rehabilitation service “employer’s First, employees injured W.Va.Code, an agreement preferred provider an preferred provid- injured 23-4-3(b) between on-the- system claim- pro- provider tation service chosen premise, From this we examined various would right er also violate a claimant’s application statutes and their to a services, provider choose his or initial her whereby employers entered into contracts 23-4-3(b) required W.Va.Code, [1995]. providers to rehabilitation service be the Lastly, only the Commissioner —and not the provider exclusive of services for em- employer- authority develop —has held, ployees. Syllabus at We Point that: claimant, for a with the W.Va.Code, 23^-3(b) [1995], Under an professional, assistance of a rehabilitation prohibited entering into employer, and with cooperation provider with a contract health care claimant, physician. and the claimant’s services, purposes providing includ- ing services, employee- case, In the instant defendant crafted injured in claimants of and as a course complicated system appears to be con- result of their trary to each of the statutes discussed agreement McKenzie. The defendant had an We statutory prohibition noted that this provide with Acordia and Genex to rehabili- import Legislature of such its tation services for such as the violation could form civil the basis for job. plaintiff who Fur- were held, penalties. criminal Syl- We further thermore, given op- labus Point that: initially portunity choose his own rehabili- W.Va.Code, 3(b) [1995], Under 23^4— fact, (and, provider tation service does not right claimant has a his or select her appear sought even have provider provider initial health caie services). Lastly, defendant —and rehabilitation services for the treatment of Commissioner —referred the *8 injury a compensable If disease. the Genex, incorrectly suggesting in the referral change claimant thereafter wishes to his or only that are for letter rehabilitation services provider, if employer partici her and the “employees previ- who cannot their return to pates program manage in a health care job any capacity,” in ous and created costs, then the claimant must choose Five, began Step all at provider through employer’s managed the without consultation with the Commis- program. If care the claimant thereafter sioner. change provider, wishes to his or if her and record, employer participate carefully reviewing does not in a After we managed program, may care but the Division can infer that the defendant have em- participate pro does in a managed ployed complicated system care this to remove gram, may payroll employees inju- the Division choose the from its who sustain provider through claimant’s new its man in of from resulting ries the course aged program. employment. begin, in care To written to letter case, job days plain- with the claimant’s after the plaintiffs doctor defen- the defendant was terminated. injury, representative for the

tiffs part of that as the defendant’s indicated dant sum, sys- upon a the defendant relied plain- program, the “approved” rehabilitation apparently was in of tem contravention work without returned to tiff could not be Act, capacity evaluation. This having a functional contrary employed in a fashion 20 months before the letter was written stat- dictates referred to the rehabilita- plaintiff was ever regulations, suggest utes capacity functional program, and the job “voluntarily” relinquished eight four to months (performed evaluation sought employment elsewhere because completed his recov- before job, perform job, he was unable to was, injuries) part, the basis ery from his with the defendant. for the referral. employer’s that an use We though believe even two doctor’s system, particularly one of a rehabilitation ports could indicated Act, work, contrary representa- as discussed a claims the defendant for ex rel. McKenzie v. to remove unilaterally State at determined tive Acordia may injured employee payroll an instead be referred should prima form the for a case basis provider, Genex. rehabilitation facie hold that discrimination under the Act. We representative, Remarkably, the claims employer’s an termination appears provider, and not employee because should to have determined voluntarily accepted rehabilitation services is, begin Step at that the Five—that support compensa may a claim for workers’ was to obtain a another W.Va.Code, 23-5A- tion discrimination under any training. previous without As stated, ly regulations of Division classifying “place responsibility employer’s We that the use of believe in the hier claimant’s condition providers preferred for rehabili Commissioner,” archy in and not in the could be tation services in the instant case at -, McKenzie, 212 employer. interpreted pretext as a for a scheme compensation reg 825. Workers’ terminate who received work ulations state: ers’ benefits. We therefore questions find that of material substantial higher priority may be uti- numbered remain, fact and that the circuit court erred has deter- lized unless the commissioner granting summary judgment to the defend priorities all lower mined that numbered ant.3 placement unlikely to result gainful into worker suitable IV. added). (emphasis § 85 C.S.R. 15-4.1 Conclusion repre- suggests that the record defendant’s a claim- sentative at Acordia never referred circuit We reverse the court’s June employed by ant the defendant to rehabilita- order, judgment and remand Five, any step tion at than other proceedings. further approximately had done 50 other cases. so *9 cases, presume We each of these as Reversed and Remanded. Acordia’s, Associated’s,

3. The contends that the circuit fected Eastern also allowing alleged circuit court to amend Genex’s misconduct. Because the erred in complaint did merits motions add as defendants Acordia and court by not reach the of these them, Genex fraud, additional of action for we decline address and add an cause allowing certify plaintiff to leave them the circuit to address on and in not court a class individuals af- remand. action on behalf other

257 concurs Justice DAVIS and files Chief 778 S.E.2d concurring opinion joined by Justice Angela LANG, L. Plaintiff MAYNARD. Below, Appellant, DAVIS, Justice, concurring: Chief v. (Filed 2002) 17, July Derr, DERR Robert S. and Florence W. case, majority In this or- reversed an Below, Appellees. Defendants granting summary judgment ap- der pellee, Eastern Associated Coal Corp., and No. 29959. Skaggs remanded the action to allow Mr.

pursue discriminatory his claim of termi- Supreme Appeals Court of agree disposition. I nation.1 with this How- Virginia. West ever, I separately have chosen to write be- Submitted Jan. 2002. I strongly disagree majority’s cause partial reliance the decision ex State 3,May Decided 2002. Smith, rel. McKenzie v. 212 W. Va. (2002), resolving appeal. wrongly

McKenzie was decided and has no Skaggs’

application to Mr. case.2 The deci-

sion in McKenzie concerned the discretion-

ary authority of the Commissioner to allow

employers preferred list submit a voca- Thus, providers.

tional rehabilitation service

McKenzie has no relevance to the instant discriminatory involving

claims termination. posed by Skaggs

The issue Mr. con- prior exclusively by

trolled our con- decisions

cerning under discrimination W. Va.Code (1978)

§ (Repl.Vol.1998), 23-5A-1 and this

case should have been resolved on that basis

alone. foregoing,

In view of the I am concur. I

authorized to state Justice MAYNARD

joins concurring opinion. me in this (1978) statutes, § (Repl.Vol. guise

1. Under W. Va.Code 23-5A-1 ers’ under 1998) employer may not terminate an liberality, rule of in order undermine the dis- ee compensation a result of the workers' cretionary authority of the Commissioner of the provides The statute benefits. suc- Division to allow em- cinctly: "No shall discriminate in ployers preferred submit the names voca- against any present manner employees employee’s receipt or former providers. tional rehabilitation See State ex rel. present because of such or former Va. 212 W. 569 S.E.2d McKenzie attempt of or to receive bene- (2002) (Davis, C.J., dissenting, May- chapter.” fits under this nard, J., joining). I dissented in on the basis that McKenzie authority majority'did not have work- rewrite