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Jenkins Fenstermaker, PLLC

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By Steven K Wellman Of Jenkins Fenstermaker, PLLC on 04/17/2023
Changes to WV Workers’ Compensation and the WV Deliberate Intent Law

The 2023 regular session of the West Virginia (WV) Legislature produced changes to WV workers’ compensation and the WV deliberate intent law. Employers should be aware of these updates and how they may impact them and their employees moving forward. As always, the WV workers’ compensation defense lawyers at Jenkins Fenstermaker, PLLC are available to discuss impacts related to an employer’s specific circumstances; however, the information here provides an overview of bills that passed and failed during the session.

2023 Legislative Update: Changes to WV Workers’ Compensation Law

This legislative session saw two workers’ compensation bills stall and fail while two other related bills passed. The provisions that will impact employers most are the result of House Bill (HB) 3270, which placed new limitations on the recovery of damages for noneconomic losses in WV deliberate intent claims. The changes to the WV workers’ compensation statute, further detailed below, will be effective for work-related injury claims filed on or after July 1, 2023.

Proposed Changes to WV Workers’ Compensation

House Bill 2190 would have required a medical provider who treats an injured employee within 12 hours of injury to obtain a blood test to determine if the employee was intoxicated at the time the injury occurred. This bill was sent to the House Judiciary Committee in January and did not proceed from there.

House Bill 2402 sought to repeal the WV deliberate intent law completely, a change that would have been significant and beneficial to employers in the Mountain State. Unfortunately, this bill did not advance after being sent to the House Banking and Insurance Committee.

New Limits on Noneconomic Damages under WV Deliberate Intent Law

While lawmakers were unsuccessful in eliminating the WV deliberate intent law entirely, employers will benefit from the limitations put in place by HB 3270. The WV deliberate intent law, which permits employees to seek legal remedies beyond those allowed by the WV workers’ compensation statute (chapter 23 of WV Code), will limit the awards a plaintiff may receive in these cases.

Noneconomic damages for deliberate intent claims will be capped at two times economic damages in the claim after offset or $500,000, whichever is higher. The original text of HB 3270 would have implemented a cap of $250,000, but revisions to the bill raised the number to $500,000. The new limit applies to each claimant regardless of the number of plaintiffs or defendants in a case. Wrongful death claims will also be subject to the cap regardless of the number of potential distributees.

Beginning January 1, 2024, and annually thereafter, the amount of the cap will be adjusted to account for inflation.

Additional Notes on House Bill 3270

HB 3270 also added a provision to WV Code § 23-4-2 related to deliberate intent claims for occupational pneumoconiosis (OP). For claims filed on or after July 1, 2023, claimants seeking to file OP deliberate intent damages will be required to prove that the employer “fraudulently concealed or manipulated dust samples or air quality samples.”

Two provisions included in the original content of HB 3270 were struck from the bill before it was passed. These included an amendment to add § 23-4-2b, allowing a reduction of damages when payments are received by a claimant from collateral sources for the same injury, and an amendment to add § 23-4-2c, which proposed a cap on plaintiff attorneys’ associated costs and fees.

Contact Your WV Workers’ Compensation Defense Lawyers

WV workers’ compensation law continues to slowly evolve in a direction that equally protects employees and employers. Steven K. Wellman and the WV workers’ compensation defense lawyers at Jenkins Fenstermaker, PLLC actively track these changes and advocate for the interests of employers in our state. To discuss how the recent changes to WV workers’ compensation apply to your company, contact us by calling (304) 523-2100 or completing our online contact form to schedule a consultation.