Bill Text: WV HB4394 | 2022 | Regular Session | Introduced
Bill Title: To reaffirm and enhance the workers compensation excusive remedy rule or doctrine
Spectrum: Partisan Bill (Republican 4-0)
Status: (Introduced - Dead) 2022-02-16 - To House Judiciary [HB4394 Detail]
Download: West_Virginia-2022-HB4394-Introduced.html
WEST VIRGINIA LEGISLATURE
2022 REGULAR SESSION
Introduced
House Bill 4394
By Delegate Hott
[Introduced January 25, 2022; Referred to the Committee on Banking and Insurance then the Judiciary]
A BILL to repeal §23-2-6a of the Code of West Virginia, 1931, as amended; and to amend and reenact §23-2-6 and §23-2-8 of said code; and to amend and reenact §23-4-2 of said code, all relating to workers’ compensation; clarifying language regarding an employers’ exemption from liability; clarifying language regarding liability of employers who do not maintain mandatory workers’ compensation coverage; clarifying language regarding employers’ liability when an employees’ injury is self-inflicted or the result of intoxication; and providing that the employee may recover when the injury or death was caused by an employer’s deliberate intention.
Be it enacted by the Legislature of West Virginia:
ARTICLE 2. EMPLOYERS AND EMPLOYEES SUBJECT TO CHAPTER; EXTRATERRITORIAL COVERAGE.
§23-2-6. Exemption of contributing
employers from liability.
(a) Any employer subject to this chapter who subscribes
and pays into the workers' compensation fund the premiums provided by this
chapter maintains mandatory workers’ compensation insurance coverage for
the protection of their employees or who has received permission by the
insurance commissioner to self-insure their workers’ compensation risk pursuant
to §23-2-9 of this code and maintains such status or who elects to make
direct payments of compensation as provided in this section is not liable
to respond in damages at common law or by statute for the injury or death of
any employee, however occurring, after so subscribing or electing, and
during any period in which the employer is not in default in the payment of
the premiums or direct payments maintains mandatory workers’
compensation insurance coverage or its approved self-insured status and has
complied fully with all other provisions of this chapter. Continuation in
the service of the employer shall be considered a waiver by the employee and by
the parents of any minor employee of the right of action as aforesaid, which
the employee or his or her parents would otherwise have: Provided, That in case
of employers not required by this chapter to subscribe and pay premiums into the
workers' compensation fund, the injured employee has remained in the employer's
service with notice that his or her employer has elected to pay into the
workers' compensation fund the premiums provided by this chapter, or has
elected to make direct payments as aforesaid.
(b) The rights and remedies granted to an employee subject to the provisions of this chapter, on account of injury or death, shall be exclusive of all other rights and remedies, whether provided at common law or otherwise and including, but not limited to, compensatory and punitive damages, of the employee, his or her legal representative, dependents, next of kin, or anyone otherwise entitled to recover damages from the employer, or any principal, officer, director, manager, agent, stockholder, partner, representative or employee acting in his or her capacity as an employer, or prime contractor of the employer or in furtherance of the employer's business, on account of the injury or death, and the negligent acts of a co-employee shall not be imputed to the employer. No role, capacity, or persona of any employer, principal, officer, director, or stockholder other than that existing in the role of employer of the employee shall be relevant for consideration for purposes of this chapter, and the remedies and rights provided by this chapter shall in fact be exclusive regardless of the multiple roles, capacities, or personas the employer may be deemed to have.
§23-2-6a. Exemption from liability of officers, managers, agents, representatives or employees of contributing employers.
[Repealed].
§23-2-8. Liability of employer electing not to pay or defaulting in payment of premiums; certain common-law defenses prohibited; exceptions.
All employers required by
this chapter to subscribe to and pay premiums into the workers' compensation
fund maintain mandatory workers’
compensation insurance coverage, whether through a private carrier or an
approved self-insurance program,
except the State of West Virginia, the governmental agencies or departments
created by it, and municipalities and political subdivisions of the state, and
who do not subscribe to and pay premiums into the workers' compensation fund
maintain such coverage as required by this chapter and have not elected
to pay individually and directly or from benefit funds compensation and
expenses to injured employees or fatally injured employees' dependents under
the provisions of §23-2-9 of this code, or having so subscribed or elected
provided for such mandatory coverage, shall be in default in the payment
of same, or not having otherwise fully complied with the provisions of section
five or section nine of this article, shall be liable to their employees
(within the meaning of this article) for all damages suffered by reason of
personal injuries sustained in the course of employment caused by the wrongful
act, neglect or default of the employer or any of the employer's officers,
agents or employees while acting within the scope of their employment and in
the course of their employment and also to the personal representatives of such
employees where death results from such personal injuries, and in any action by
any such employee or personal representative thereof, such defendant shall not
avail himself of the following common-law defenses: The defense of the
fellow-servant rule; the defense of the assumption of risk; or the defense of
contributory negligence; and further shall not avail himself of any defense
that the negligence in question was that of someone whose duties are prescribed
by statute: Provided, That such provision depriving a defendant employer
of certain common-law defenses under the circumstances therein set forth shall
not apply to an action brought against a county court, Board of Education,
municipality, or other political subdivision of the state or against any
employer not required to cover his employees under the provisions of this
chapter.
§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 insurance commissioner 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 §55-7-6 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 sections six and six-a, article two of this chapter 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 sections six and six-a, article two
of this chapter 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 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 employee’s 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) 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) 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 reaffirm and enhance the workers’ compensation excusive remedy rule or doctrine.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.