In JWCF, LP v. Farruggia, the West Virginia Supreme Court affirmed the Kanawha County Circuit Court’s refusal to grant a new trial after a jury awarded a former employee more than $250,000 in back pay, front pay, and damages arising out of a Workers’ Compensation discrimination claim.
In McComas v. ACF Industries, LLC, the Supreme Court of Appeals reversed a circuit court’s dismissal in favor of an employer in a deliberate intent case. The plaintiff was a welder employed by ACF which operated an industrial plant for the construction of railroad cars. The plaintiff was directed by his foreman to go to a section of the ACF plant to begin building sides for railroad cars. The area where the plaintiff and other employees were sent to work was dark, and turning on the electric power was necessary for lighting the area and powering the welding machines used to build the cars. Initially, the employees attempted to turn the power on by using the individual circuit breakers. When that attempt was unsuccessful, the plaintiff approached an adjoining 480-volt fused, switch box. The box was enclosed and the side-handle was down in the “off” position. When plaintiff raised the handle to the “on” position, an arc blast blew him backwards and to the floor. Despite wearing protective gear, the plaintiff suffered severe burns to 25% of his body. The Plaintiff filed a deliberate intent suit against his employer under the 2005 version of W. Va. Code 23-4-2(d)(2)(ii). At that time, the deliberate intent action could be satisfied only if a plaintiff could prove the following:
Although plaintiffs’ lawyers like to think that an employee can get around the employers’ workers’ compensation immunity easily by making a “deliberate intent” claim, the West Virginia Supreme Court of Appeals recently affirmed that it takes more than just pleading that there was a specific unsafe working condition in order to prevail on such a claim. In a complete victory for the employer, the Court also affirmed that a mere clerical error on an employee’s unemployment compensation paperwork is not sufficient evidence to show that the employer discharged the employee in retaliation for filing the workers’ compensation claim.
In 2009, the West Virginia Supreme Court of Appeals created a formal Access to Justice program for the State of West Virginia. The Access to Justice program was established to determine the needs of citizens accessing the justice system in the state. One of the issues identified by the Access to Justice Commission was the lack of ability for claimants to obtain counsel in the litigation of denied medical treatment issues in workers’ compensation claims. Accordingly, Supreme Court Justice Brent Benjamin formed a committee to address this issue.
Recently, the Ohio Supreme Court decided a key case regarding a statutory exemption to workers’ compensation laws for so-called “deliberate intent” actions. The Ohio statute in question allows an individual injured on the job to recover under a tort theory of liability if the individual can prove the employer committed a tortious act with the intent to injure the worker or with the belief the injury was substantially certain to occur. This can include removing a safety guard or precaution from the workplace, which creates a rebuttable presumption of intent to injure.
W. Va. Code § 23-4-16(d) was amended in 2005 in regard to permanent total disability (“PTD”) awards that have been previously granted. The amendment requires the private carrier or self-insured employer to continuously monitor these awards. It further allows the private carrier or self-insured employer to reopen these claims for re-evaluation of the PTD award using the current statute governing the granting of such award and also provides for the possibility of modification of the award.
In West Virginia, the legally-stated purpose of the workers’ compensation program is to assist workers to return to gainful employment after a compensable injury. Even though a worker might not be able to return to identical employment, the attainment of suitable, gainful employment in a different occupation is desired. Under West Virginia workers’ compensation statutes and regulations, it is the shared responsibility of the insurer, the injured worker, and the employer, to return the injured worker to suitable employment. It is the responsibility of the injured worker to participate in an approved rehabilitation program, if appropriate, after a worker has suffered a compensable injury. The participation in such a program entitles the worker to temporary total disability benefits while the employee is participating in the program or temporary partial rehabilitation benefits if the employee is working part-time. Failure of the employee to participate in an approved program may result in the denial of the requested services and the termination of temporary total disability benefits.
The Employment Essentials blog apologizes for being inaccessible the last several days. We confess to failing to follow appropriate guidelines at our New Year’s Holiday party, with the end result being a several-day long hangover. But we’re back up and running into 2012, starting with this excellent piece on the always fact-specific ‘going and coming’ rule.
West Virginia law provides specific guidance regarding the reporting of workplace injuries by both employees and employers.
For their part, every employee who sustains a workplace injury is obligated to provide immediate – or as soon thereafter as practicable – written notice of the injury to the employer. State regulations in West Virginia require this, and also provide that immediately after sustaining an occupational injury, the employee should seek necessary medical care and file a worker’s compensation claim. Immediate notice is notice given within two (2) working days of the injury.