Michael P. Addair
Attorney
Dinsmore & Shohl LLP 


In most cases, employers who prescribe to workers’ compensation insurance enjoy immunity from civil lawsuits by their employees who suffer on-the-job injuries.  This immunity is a trade-off that employers enjoy in exchange for a no-fault workers’ compensation system in which injured employees are compensated even where the injury was not the fault of the employer and/or may have even been the fault of the injured employee.

In most jurisdictions, an employee who wishes to sue his employer for workplace injuries must prove that the employer had a specific, deliberately formed intention to injure him. For example, in the majority of jurisdictions, where an employee who was not wearing fall protection fell from a scaffold and suffered injury, the employee could not prevail in a civil lawsuit unless he could prove that the employer did not provide fall protection with the specific intent that the employee would fall and be injured.

Unlike most jurisdictions, West Virginia law allows for an employee to overcome the employer’s workers’ compensation immunity and sue his employer under a less onerous standard by proving the following five elements:

1.       That a specific unsafe working condition existed in the workplace which presented a high degree of risk and a strong probability of serious injury or death;

2.       That the employer, prior to the injury, had actual knowledge of the existence of the specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by the specific unsafe working condition;

3.       That the specific unsafe working condition was a violation of a state or federal
safety statute, rule or regulation, whether cited or not, or of a commonly accepted and well-known safety standard within the industry or business of the employer;

4.       That notwithstanding the above, the person or persons alleged to have actual
knowledge nevertheless intentionally thereafter exposed an employee to the specific unsafe working condition; and 

5.       That the employee exposed suffered serious compensable injury or compensable death.

Although not as onerous a standard as in most jurisdictions, the West Virginia Legislature nevertheless intended it to be difficult for employees to strip employers of their workers’
compensation immunity.  Nevertheless, the courts have, over time, interpreted the statute in such a way as to erode much of the difficulty in proving deliberate intent. The result has been a proliferation of lawsuits for workplace injuries and accidents that were never intended to be the subject of civil litigation.

Against this backdrop, House Bill 2011 passed the West Virginia Legislature on March 14, 2015 to amend the deliberate intent statute.  The amended statute contains several changes that will be beneficial to ABCWV members, many of which are merely clarifications of existing provisions that are no doubt aimed at strengthening the requirements for showing deliberate intention and requiring the courts to interpret the statute with the strength it was originally intended to have. Nevertheless, there are several new provisions that deserve special mention here.

“Serious Compensable Injury” Defined

The deliberate intent statute has always required that an employee suffer death or “serious compensable injury” in order to strip his employer of its workers’ compensation immunity. However, the Legislature never previously provided any guidance on what constitutes a “serious compensable injury.”  The amended statute provides some fairly clear guidance on what type of injury meets this standard. 

In most cases under the amended statute, the employee, in order to be deemed to have a serious compensable injury, must have suffered, independent of any pre-existing impairment, an injury that is permanent; an injury rated as a 13% whole person impairment in the final workers’ compensation award; and an injury that caused
permanent serious disfigurement, permanent loss or significant impairment of function of a bodily organ or system, or an objectively verifiable bilateral or multi-level radiculopathy.

An employee may also recover under the amended statute if a physician certifies
in writing that the employee has suffered an injury as a result of the unsafe working conditions that will result in death within 18 months or if the unsafe working condition has caused a complicated pneumoconiosis or pulmonary massive fibrosis resulting in a pulmonary impairment of at least 15%.

These provisions may be the most important in the statute for employers. They should eliminate many of the questionable cases that are routinely filed in our courts by employees that subjectively complain of pain that results in diagnoses of soft tissue injuries and radiculopathies that cannot be verified by objective medical testing.  Additionally, employees who have pre-existing injuries will have a much more difficult time prevailing in a deliberate intent suit. These provisions will also eliminate the ability to bring a deliberate intent claim for non-permanent injuries. Thus, for example, an employee who breaks his leg, but is expected to fully recover from his injuries cannot sue his employer for deliberate intent under the amended statute. 

Certificate of Merit Required

The amended statute requires that the Plaintiff, prior to initiating the lawsuit, retain a safety expert to certify in writing the specific unsafe working conditions that existed and the specific statutes, rules, regulations or written consensus industry safety standards violated by the employer that are directly related to the specific unsafe working conditions.

While it will not be difficult for employees to find experts willing to issue such a certification, it does require the employee’s lawyer to risk money on the case before suit is ever filed in the form of expert fees.  This may discourage Plaintiffs’ lawyers from taking questionable cases.  The Legislature passed medical malpractice reform several years ago requiring similar certificates of merit, which likely contributed to a decline in the number of medical malpractice cases filed in West Virginia.

Forum Shopping Eliminated

The amended statute provides that a deliberate intent lawsuit must be brought in the county where the accident occurred or in the county of the employer’s principal place of business.  This provision should curb the practice of forum shopping, i.e., bringing the lawsuit in a more liberal, Plaintiff friendly jurisdiction even though that jurisdiction has little or no relation to the accident other than the fact the employer may do business there.

Conclusion

The amended deliberate intent statute will apply to all injuries that occur on or after July 1, 2015. Accordingly, employers should be aware that injuries that occur(ed) prior to July 1, 2015 will be subject to the old statute even if a lawsuit regarding such injuries is not filed until after July 1, 2015.