WV Deliberate Intent-A Complex Exception to Employer Immunity

With few exceptions, all West Virginia employers, including state and local political subdivisions, are required to provide workers' compensation coverage. The workers' compensation system provides employers with quicker, more predictable outcomes than traditional litigation. The statutory scheme also helps employees through uncertain times by replacing a portion of lost wages and paying medical expenses incurred from on-the-job injuries or illnesses.

In most cases, workers' compensation is an employee's only legal recourse. However, West Virginia law allows an employee to sue his or her employer for damages in civil court if the employee can show that the employer acted with "deliberate intent."

Defining Deliberate Intent in WV

A deliberate intent claim is a statutory cause of action as set forth in the West Virginia Workers' Compensation Code at West Virginia Code § 23-4-2(d)(2).

Over the years, the West Virginia Legislature has amended the deliberate intent statute to narrow the cause of action by specifying what injuries or illnesses qualify and by identifying what evidence is necessary to overcome the immunity provided to employers. These cases are not easy to prove nor to defend.

Deliberate intent civil suits may be filed only after an employee has submitted a claim for workers' compensation in WV. Once a claim is initiated, deliberate intent, as defined by state statute, must be established by the claimant.

Statutory Requirements for WV Deliberate Intent

To establish deliberate intent on the employer's part, the claimant can show that the employer specifically intended for the injury or death in question to occur. Negligent (even gross or aggravated) or willful, wanton or reckless behavior will not satisfy the requirements for this type of claim. Evidence to prove this form of deliberate intent is uncommon.

A second, more common approach to proving deliberate intent involves a multitude of factors. To prevail in a claim for deliberate intent when the claimant cannot demonstrate a specific intention of injury, an employee must generally prove each of the following:

• An unsafe working condition existed, with high risk and likelihood of significant injury or death
• The employer was aware of the potential hazard and the level of risk presented
• The condition in question violated either a federal or state law or regulation or was in breach of a common standard of safety recognized by the relevant industry or sector
• The employer required employees to continue performing their duties despite knowledge of the aforementioned condition
• The injury or death sustained by the employee occurred as a result of the aforementioned condition

Amendments to Language, Definitions in WV Deliberate Intent Claims

The 2015 amendments to West Virginia Code § 23-4-2 related to WV deliberate intent claims clarified the cause of action in a number of key ways:

• "Actual knowledge" is not presumed and must be proven through direct evidence. Examples of previous accidents or speculation of what management should have known are insufficient. Documents or other credible evidence are required.
• A "commonly accepted and well-known safety standard" must be based on consensus in the relevant industry of the employer and must be memorialized in a written rule or standard.
• A "serious compensable injury" must meet the requirements set forth regarding permanent impairment or disfigurement, total whole person workers' compensation impairment ratings, or physician certifications of imminent death or occupational pneumoconiosis.
• Complaints not asserting specific intention of injury must be accompanied by a verified statement from a person knowledgeable in workplace safety and industry-specific standards.

Where to Find Help Defending against WV Deliberate Intent Claims

While the deliberate intent statute details the elements for proving a case for damages in excess of a standard workers' compensation claim in WV, the nuances of defending against WV deliberate intent claims are numerous and varied. The experienced deliberate intent lawyers at Jenkins Fenstermaker, PLLC, including Nathanial A. Kuratomi, provide valuable counsel to employers in West Virginia (WV), Kentucky (KY), and Ohio (OH). For more information or a consultation, contact Nate online or call him at (304) 523-2100 in the greater Huntington area, or toll-free in the tristate area at (866) 617-4736.