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. 

The plaintiff in Smith v. Apex Pipeline Services, Inc. was a general laborer hired out of a union hall to work on a pipeline project in Boone County, West Virginia.  While the plaintiff was down in a trench to set the skids on which a section of pipe would be set, another section of pipe, which had not been properly chocked, rolled into the trench and struck the plaintiff, injuring him.  The plaintiff subsequently received workers’ compensation for his injury. 

Eight months later, the plaintiff contacted the employer to see if there was any work available for him.  Because the project for which the plaintiff had been specifically hired was complete, the employer informed the plaintiff that he and other workers hired for the project had been laid off.  The plaintiff then filed for unemployment compensation.  When filling out the “Request for Separation Information” sent to the employer by Workforce West Virginia, a secretary for the employer checked the box indicating that the plaintiff was separated from employment due to “discharge,” and noted that the employee had been injured on the job and received workers’ compensation. But when the plaintiff employee, after being denied unemployment benefits, contacted the secretary to inquire about the form, she acknowledged that she had checked the wrong box and contacted Workforce West Virginia to correct the error.  The plaintiff received his unemployment benefits shortly thereafter. 

The plaintiff then sued the employer under a deliberate intent theory, as well as for workers’ compensation discrimination.  The employer moved for summary judgment, arguing that plaintiff could not prove the elements for either claim.  The circuit court granted the employer’s motion, holding that the plaintiff had failed to show four of the five elements required for a deliberate intent claim and had failed to show that his filing of a workers’ compensation claim was a significant factor in the employer’s decision not to rehire him.  The plaintiff appealed to the West Virginia Supreme Court. 

The Supreme Court noted that an employee must prove five elements to establish a deliberate intent claim:  (1) that a specific unsafe working condition existed that presented a high degree of risk and a strong probability of serious injury or death; (2) that the employer, prior to the injury, and actual knowledge of the existence of the specific unsafe working condition; (3) that the unsafe working condition was a violation a safety statute, rule or regulation, or of a commonly accepted safety standard within the industry; (4) that the employer intentionally exposed the employee to the unsafe working condition; and (5) that the employee suffered serious injury or death as a result of the unsafe working condition. 

The Supreme Court disagreed with the lower court and found that the plaintiff had presented at least prima facie evidence of a specific unsafe working condition—the employer’s failure to physically safeguard the pipe from falling into the trench.  But even this was not enough for the plaintiff to prevail, because the Court found that the plaintiff had failed to present evidence that the employer had actual knowledge of the existence of the unsafe working condition before the plaintiff’s injury occurred.  Instead, the Court found that the plaintiff only presented speculative evidence that the employer reasonably should have known of the unsafe working condition prior to the plaintiff’s injury.  The Court held that this was an insufficient showing. 

Regarding the plaintiff’s workers’ compensation discrimination claim, the Supreme Court, as did the lower court, found that the evidence failed to establish that the plaintiff’s filing of a workers’ compensation claim was a significant factor in the employer’s decision not to rehire him.  The Court noted that the secretary testified that she made a clerical error in checking the wrong box on the unemployment compensation form, and when she realized her error, promptly took corrective action.  Moreover, the Court noted that the specific project for which the employer hired the plaintiff was completed and that the employer thereafter had laid off many employees, not just the plaintiff. 

Although this may seem like a common-sense decision, employers do not always win these cases in court.  This case contains two lessons for employers:  First, do a complete investigation after a serious accident.  Second, be careful when dealing with an employee coming off of a work-related injury.

Mark Jeffries focuses his practice in the area of labor and employment law. He has represented employers in wrongful discharge and discrimination cases in state and federal court, as well as before the West Virginia Human Rights Commission and the U.S. Equal Opportunity Commission.
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