Workers’ compensation programs are a trade-off, providing participating employers with immunity from civil lawsuits by employees injured on the job, while compensating those employees without proof of fault.  Since its 1913 adoption, West Virginia’s Workers’ Compensation Act has contained an exception to employer immunity if an injured employee can show a “deliberate intent” by the employer to injure the employee. 

The West Virginia Legislature has responded to West Virginia courts’ broadening of the scope of the deliberate intent exception several times, most recently in House Bill 2011, approved by Governor Tomblin on March 31, 2015.  The bill effectively nullifies the West Virginia Supreme Court opinion in McComas v. ACF Industries, decided in October 2013.

The amended Act retains a five-part test to determine applicability of the deliberate intent exception, but clarifies and narrows when the exception applies.  It specifies that constructive knowledge, or what an immediate supervisor or management “should have known,” may not prove an employer’s “actual knowledge.”  An injured employee must show that the specific alleged unsafe working condition violated a state or federal safety statute, rule or regulation, or a commonly accepted and well-known safety standard of the industry or business of the employer.  A verified expert statement, served with the complaint, must state the applicable rule, regulation, or standard.  The injured employee must file for workers’ compensation benefits in advance of filing a deliberate intent action.  The bill also clarified what constitutes a “serious compensable injury” and provided alternatives for proving such injuries.

The amendments apply to all injuries occurring on or after July 1, 2015.

Jami Suver focuses her practice in the area of labor and employment law.
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