Bill Text: WV HB3218 | 2021 | Regular Session | Introduced
Bill Title: Remove “deliberate intent” exception from workers' comp
Spectrum: Partisan Bill (Republican 2-0)
Status: (Introduced - Dead) 2021-03-16 - To House Judiciary [HB3218 Detail]
Download: West_Virginia-2021-HB3218-Introduced.html
WEST virginia legislature
2021 regular session
Introduced
House Bill 3218
By Delegates Hott and Westfall
[Introduced March 16, 2021; Referred to the Committee on the Judiciary]
A BILL to amend and reenact §23-4-2 of the Code of West Virginia, 1931, as amended, relating to eliminating the cause of action for deliberate intent for injuries that arise during the course of employment.
Be it enacted by the Legislature of West Virginia:
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-2. Disbursement where injury is self-inflicted or intentionally caused by employer; legislative declarations and findings; "deliberate intention" defined.
(a) Notwithstanding anything contained in this chapter, no employee or dependent of any employee is entitled to receive any sum under the provisions of this chapter on account of any personal injury to or death to any employee caused by a self-inflicted injury or the intoxication of the employee. Upon the occurrence of an injury which the employee asserts, or which reasonably appears to have, occurred in the course of and resulting from the employee's employment, the employer may require the employee to undergo a blood test for the purpose of determining the existence or nonexistence of evidence of intoxication: Provided, That the employer must have a reasonable and good faith objective suspicion of the employee's intoxication and may only test for the purpose of determining whether the person is intoxicated. If any blood test for intoxication is given following an accident, at the request of the employer or otherwise, and if any of the following are true, the employee is deemed intoxicated and the intoxication is the proximate cause of the injury:
(1) If a blood test is administered within two hours of the accident and evidence that there was, at that time, more than five hundredths of one percent, by weight, of alcohol in the employee's blood; or
(2) If there was, at the time of the blood test, evidence of either on or off the job use of a nonprescribed controlled substance as defined in the West Virginia Uniform Controlled Substances Act, West Virginia Code §60A-2-201, et seq., Schedules I, II, III, IV and V.
(b) For the purpose of this chapter, the commission may cooperate with the Office of Miners' Health, Safety and Training and the State Division of Labor in promoting general safety programs and in formulating rules to govern hazardous employments.
(c) If injury results to any employee from the deliberate intention of his or her employer to produce the injury or death, the employee, or, if the employee has been found to be incompetent, his or her conservator or guardian, may recover under this chapter and bring a cause of action against the employer, as if this chapter had not been enacted, for any excess of damages over the amount received or receivable in a claim for benefits under this chapter. If death results to any employee from the deliberate intention of his or her employer to produce the injury or death, the representative of the estate may recover under this chapter and bring a cause of action, pursuant to section six, article seven of chapter fifty-five of this code, against the employer, as if this chapter had not been enacted, for any excess of damages over the amount received or receivable in a claim for benefits under this chapter. To recover under this section, the employee, the employee's representative or dependent, as defined under this chapter, must, unless good cause is shown, have filed a claim for benefits under this chapter.
(d)(1) It is declared that enactment of this chapter and the establishment of the workers' compensation system in this chapter was and is intended to remove from the common law tort system all disputes between or among employers and employees regarding the compensation to be received for injury or death to an employee except as expressly provided in this chapter and to establish a system which compensates even though the injury or death of an employee may be caused by his or her own fault or the fault of a co-employee; that the immunity established in §23-2-6 and §23-2-6A of this code is an essential aspect of this workers' compensation system; that the intent of the Legislature in providing immunity from common lawsuit was and is to protect those immunized from litigation outside the workers' compensation system except as expressly provided in this chapter; that, in enacting the immunity provisions of this chapter, the Legislature intended to create a legislative standard for loss of that immunity of more narrow application and containing more specific mandatory elements than the common law tort system concept and standard of willful, wanton and reckless misconduct; and that it was and is the legislative intent to promote prompt judicial resolution of the question of whether a suit prosecuted under the asserted authority of this section is or is not prohibited by the immunity granted under this chapter.
(2) The immunity from suit provided under this section
and under §23-2-6 and §23-2-6A of this code may be lost only if the employer or
person against whom liability is asserted acted with "deliberate intention".
This requirement may be satisfied only if
(A) It it is
proved that the employer or person against whom liability is asserted acted
with a consciously, subjectively and deliberately formed intention to produce
the specific result of injury or death to an employee. This standard requires a
showing of an actual, specific intent and may not be satisfied by allegation or
proof of: (i) Conduct which produces a result that was not specifically
intended; (ii) conduct which constitutes negligence, no matter how gross or
aggravated; or (iii) willful, wanton or reckless misconduct. or
(B) The trier of fact determines, either through
specific findings of fact made by the court in a trial without a jury, or
through special interrogatories to the jury in a jury trial, that all of the
following facts are proven:
(i) 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;
(ii) 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.
(I) In every case actual knowledge must specifically
be proven by the employee or other person(s) seeking to recover under this
section, and shall not be deemed or presumed: Provided, That actual
knowledge may be shown by evidence of intentional and deliberate failure to
conduct an inspection, audit or assessment required by state or federal statute
or regulation and such inspection, audit or assessment is specifically intended
to identify each alleged specific unsafe working condition.
(II) Actual knowledge is not established by proof of
what an employee's immediate supervisor or management personnel should have
known had they exercised reasonable care or been more diligent.
(III) Any proof of the immediate supervisor or
management personnel's knowledge of prior accidents, near misses, safety
complaints or citations from regulatory agencies must be proven by documentary
or other credible evidence.
(iii) 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.
(I) If the specific unsafe working condition relates
to a violation of a commonly accepted and well-known safety standard within the
industry or business of the employer, that safety standard must be a consensus
written rule or standard promulgated by the industry or business of the
employer, such as an organization comprised of industry members: Provided, That
the National Fire Protection Association Codes and Standards or any other
industry standards for Volunteer Fire Departments shall not be cited as an
industry standard for Volunteer Fire Departments, Municipal Fire Departments
and Emergency Medical Response Personnel as an unsafe working condition as long
as the Volunteer Fire Departments, Municipal Fire Departments and the Emergency
Medical Response Personnel have followed the Rules that have been promulgated
by the Fire Commission.
(II) If the specific unsafe working condition relates
to a violation of a state or federal safety statute, rule or regulation that
statute, rule or regulation:
(a) Must be specifically applicable to the work and
working condition involved as contrasted with a statute, rule, regulation or
standard generally requiring safe workplaces, equipment or working conditions;
(b) Must be intended to address the specific hazard(s)
presented by the alleged specific unsafe working condition; and,
(c) The applicability of any such state or federal
safety statute, rule or regulation is a matter of law for judicial
determination.
(iv) That notwithstanding the existence of the facts
set forth in subparagraphs (i) through (iii), inclusive, of this paragraph, the
person or persons alleged to have actual knowledge under subparagraph (ii)
nevertheless intentionally thereafter exposed an employee to the specific
unsafe working condition; and
(v) That the employee exposed suffered serious
compensable injury or compensable death as defined in section one, article
four, chapter twenty-three as a direct and proximate result of the specific
unsafe working condition. For the purposes of this section, serious compensable
injury may only be established by one of the following four methods:
(I) It is shown that the injury, independent of any
preexisting impairment:
(a) Results in a permanent physical or combination of
physical and psychological injury rated at a total whole person impairment
level of at least thirteen percent (13%) as a final award in the employees
workers' compensation claim; and
(b) Is a personal injury which causes permanent
serious disfigurement, causes permanent loss or significant impairment of
function of any bodily organ or system, or results in objectively verifiable
bilateral or multi-level dermatomal radiculopathy; and is not a physical injury
that has no objective medical evidence to support a diagnosis; or
(II) Written certification by a licensed physician
that the employee is suffering from an injury or condition that is caused by
the alleged unsafe working condition and is likely to result in death within
eighteen (18) months or less from the date of the filing of the complaint. The
certifying physician must be engaged or qualified in a medical field in which
the employee has been treated, or have training and/or experience in diagnosing
or treating injuries or conditions similar to those of the employee and must
disclose all evidence upon which the written certification is based, including,
but not limited to, all radiographic, pathologic or other diagnostic test
results that were reviewed.
(III) If the employee suffers from an injury for which
no impairment rating may be determined pursuant to the rule or regulation then
in effect which governs impairment evaluations pursuant to this chapter,
serious compensable injury may be established if the injury meets the
definition in subclause (I)(b).
(IV) If the employee suffers from an occupational
pneumoconiosis, the employee must submit written certification by a board
certified pulmonologist that the employee is suffering from complicated pneumoconiosis
or pulmonary massive fibrosis and that the occupational pneumoconiosis has
resulted in pulmonary impairment as measured by the standards or methods
utilized by the West Virginia Occupational Pneumoconiosis Board of at least
fifteen percent (15%) as confirmed by valid and reproducible ventilatory
testing. The certifying pulmonologist must disclose all evidence upon which the
written certification is based, including, but not limited to, all
radiographic, pathologic or other diagnostic test results that were reviewed: Provided,
That any cause of action based upon this clause must be filed within one year
of the date the employee meets the requirements of the same.
(C) In cases alleging liability under the provisions
of paragraph (B) of this subdivision:
(i) The employee, the employee's guardian or
conservator, or the representative of the employee's estate shall serve with
the complaint a verified statement from a person with knowledge and expertise
of the workplace safety statutes, rules, regulations and consensus industry
safety standards specifically applicable to the industry and workplace involved
in the employee's injury, setting forth opinions and information on:
(I) The person's knowledge and expertise of the
applicable workplace safety statutes, rules, regulations and/or written
consensus industry safety standards;
(II) The specific unsafe working condition(s) that
were the cause of the injury that is the basis of the complaint; and
(III) 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: Provided,
however, That this verified statement shall not be admissible at the trial
of the action and the Court, pursuant to the Rules of Evidence, common law and
subclause two-c, subparagraph (iii), paragraph (B), subdivision (2), subsection
(d), section two, article four, chapter twenty-three of this code, retains
responsibility to determine and interpret the applicable law and admissibility
of expert opinions.
(ii) No punitive or exemplary damages shall be awarded
to the employee or other plaintiff;
(iii) Notwithstanding any other provision of law or
rule to the contrary, and consistent with the legislative findings of intent to
promote prompt judicial resolution of issues of immunity from litigation under
this chapter, the employer may request and the court shall give due
consideration to the bifurcation of discovery in any action brought under the
provisions of subparagraphs (i) through (v), of paragraph (B) such that the
discovery related to liability issues be completed before discovery related to
damage issues. The court shall dismiss the action upon motion for summary
judgment if it finds pursuant to rule 56 of the rules of civil procedure that
one or more of the facts required to be proved by the provisions of
subparagraphs (i) through (v), inclusive, paragraph (B) of this subdivision do
not exist, and the court shall dismiss the action upon a timely motion for a directed
verdict against the plaintiff if after considering all the evidence and every
inference legitimately and reasonably raised thereby most favorably to the
plaintiff, the court determines that there is not sufficient evidence to find
each and every one of the facts required to be proven by the provisions of
subparagraphs (i) through (v), inclusive, paragraph (B) of this subdivision;
and
(iv) The provisions of this paragraph and of each
subparagraph thereof are severable from the provisions of each other
subparagraph, subsection, section, article or chapter of this code so that if
any provision of a subparagraph of this paragraph is held void, the remaining
provisions of this act and this code remain valid.
(e) Any cause of action brought pursuant to this
section shall be brought either in the circuit court of the county in which the
alleged injury occurred or the circuit court of the county of the employer's
principal place of business. With respect to causes of action arising under
this chapter, the venue provisions of this section shall be exclusive of and
shall supersede the venue provisions of any other West Virginia statute or
rule.
(f) (e) The reenactment of this section in the
regular session of the Legislature during the year 2015 does not in any way
affect the right of any person to bring an action with respect to or upon any
cause of action which arose or accrued prior to the
effective date of the reenactment.
(g) (f)
The amendments to this section enacted during the 2015 session of the
Legislature shall apply to all injuries occurring on or after July 1, 2015.
NOTE: The purpose of this bill is to eliminate the cause of action for deliberate intent.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
