Introduced Version
Senate Bill 541 History
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Senate Bill No. 541
(By Senator Humphreys, By Request)
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[Introduced March 22, 1993;
referred to the Committee on the Judiciary.]
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A BILL to repeal section one-j, article five, chapter twenty-
three of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact section
four, article two of said chapter; and to amend and reenact
section two, article four of said chapter, all relating to
workers' compensation; review; requests for permanent total
disability awards and second injury life awards following
objections to decisions by the commissioner; remands to the
commissioner; development of the record; employers and
employees subject to chapter; extraterritorial coverage;
classification of industries; accounts; rate of premiums;
premium rates to be fixed and maintained in accordance with
generally accepted accounting principles; disability and
death benefits; disbursement where injury is self-inflicted
or intentionally caused by employer; legislative
declarations and findings; and definition of deliberate
intention.
Be it enacted by the Legislature of West Virginia:
That section one-j, article five, chapter twenty-three of
the code of West Virginia, one thousand nine hundred thirty-one,as amended, be repealed; that section four, article two of said
chapter be amended and reenacted; and that section two, article
four of said chapter be amended and reenacted, all to read as
follows:
§23-2-4. Classification of industries; accounts; rate of
premiums.
The commissioner shall distribute into groups or classes the
employments subject to this chapter, in accordance with the
nature of the business and the degree of hazard incident thereto.
And the commissioner shall have power, in like manner, to
reclassify such industries into groups or classes at any time,
and to create additional groups or classes. The commissioner may
make necessary expenditures to obtain statistical and other
information to establish the classes provided for in this
section.
The commissioner shall keep an accurate account of all money
or moneys paid or credited to the compensation fund, and of the
liability incurred and disbursements made against same; and an
accurate account of all money or moneys received from each
individual subscriber, and of the liability incurred and
disbursements made on account of injuries and death of the
employees of each subscriber, and of the receipts and incurred
liability of each group or class.
In compensable fatal and total permanent disability cases,
other than occupational pneumoconiosis, the amount charged
against the employer's account shall be such sum as is estimated
to be the average incurred loss of such cases to the fund. The
amount charged against the employer's account in compensableoccupational pneumoconiosis claims for total permanent disability
or for death shall be such sum as is estimated to be the average
incurred loss of such occupational pneumoconiosis cases to the
fund.
It shall be the duty of the commissioner to fix and maintain
the lowest possible rates of premiums consistent with the
maintenance of a solvent workers' compensation fund and the
creation and maintenance of a reasonable surplus in each group
after providing for the payment to maturity of all liability
incurred by reason of injury or death to employees entitled to
benefits under the provisions of this chapter. The commissioner
shall fix and maintain such rates, as near as practical, in
accordance with generally accepted accounting principles. A
readjustment of rates shall be made yearly on the first day of
July, or at any time the same may be necessary: Provided, That on
and after the first day of July, one thousand nine hundred
ninety-one, the commissioner shall, at least thirty days prior to
the first day of the quarter to which an adjustment of rates is
to be applicable, file a schedule of the readjusted rates with
the office of the secretary of state for publication in the state
register pursuant to article two, chapter twenty-nine-a of this
code: Provided, however, That from the effective date of this
section to the thirtieth day of June, one thousand nine hundred
ninety-one, the commissioner shall be permitted to retroactively
readjust rates to the first day of the quarter within which
notice of the readjustment is given. The determination of the
lowest possible rates of premiums within the meaning hereof and
of the existence of any surplus or deficit in the fund shall bepredicated solely upon the experience and statistical data
compiled from the records and files in the commissioner's office
under this and prior workers' compensation laws of this state for
the period from the first day of June, one thousand nine hundred
thirteen, to the nearest practicable date prior to such
adjustment: Provided further, That any expected future return,
in the nature of interest or income from invested funds, shall be
predicated upon the average realization from investments to the
credit of the compensation fund for the two years next preceding.
Any reserves set up for future liabilities and any commutation of
benefits shall likewise be predicated solely upon prior
experience under this and preceding workers' compensation laws
and upon expected realization from investments determined by the
respective past periods, as aforesaid.
The commissioner may fix a rate of premiums applicable alike
to all subscribers forming a group or class, and such rates shall
be determined from the record of such group or class shown upon
the books of the commissioner: Provided, That if any group has a
sufficient number of employers with considerable difference in
their degrees of hazard, the commissioner may fix a rate for
each subscriber of such group, such rate to be based upon the
subscriber's record on the books of the commissioner for a period
not to exceed three years ending December thirty-first of the
year preceding the year in which the rate is to be effective; and
the liability part of such record shall include such cases as
have been acted upon by the commissioner during such three-year
period, irrespective of the date the injury was received; and any
subscriber in a group so rated, whose record for such periodcannot be obtained, shall be given a rate based upon the
subscriber's record for any part of such period as may be deemed
just and equitable by the commissioner; and the commissioner
shall have authority to fix a reasonable minimum and maximum for
any group to which this individual method of rating is applied,
and to add to the rate determined from the subscriber's record
such amount as is necessary to liquidate any deficit in the
schedule as to create a reasonable surplus.
It shall be the duty of the commissioner, when the
commissioner changes any rate, to notify every employer affected
thereby of that fact and of the new rate and when the same takes
effect. It shall also be the commissioner's duty to furnish to
each employer yearly, or more often if requested by the employer,
a statement giving the name of each of the employer's employees
who were paid for injury and the amounts so paid during the
period covered by the statement.
§23-4-2. Disbursement where injury is self-inflicted or
intentionally caused by employer; legislative declarations
and findings; "deliberate intention" defined.
(a) Notwithstanding anything hereinbefore or hereinafter
contained, no employee or dependent of any employee shall be
entitled to receive any sum from the workers' compensation fund,
or to direct compensation from any employer making the election
and receiving the permission mentioned in section nine, article
two of this chapter, or otherwise 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
such employee. For the purpose of this chapter, the commissionermay cooperate with the division of energy and the state
department of labor in promoting general safety programs and in
formulating rules and regulations to govern hazardous
employments.
(b) If injury or death result to any employee from the
deliberate intention of his employer to produce such injury or
death, the employee, the widow, widower, child or dependent of
the employee shall have the privilege to take under this chapter,
and, in addition, shall also have cause of action against the
employer for damages, as if this chapter had not been enacted,
for any excess of damages over the amount received or receivable
under this chapter.
(c) (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 herein expressly provided, and to establish
a system which compensates even though the injury or death of an
employee may be caused by his 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 law suit was and is to protect
those so immunized from litigation outside the workers'
compensation system except as herein expressly provided; that, in
enacting the immunity provisions of this chapter, the Legislature
intended to create a legislative standard for loss of thatimmunity 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 section 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:
(i) It is proved that such 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 (A) conduct which produces a result that
was not specifically intended; (B) conduct which constitutes
negligence, no matter how gross or aggravated; or (C) willful,
wanton or reckless misconduct; or
(ii) 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:
(A) 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;
(B) That the employer had a subjective realization and an
appreciation of the existence of such specific unsafe working
condition and of the high degree of risk and the strong
probability of serious injury or death presented by such specific
unsafe working condition; knew, or in the exercise of reasonable
diligence should have known, of the existence of such unsafe
working condition;
(C) That such 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
such employer, which statute, rule, regulation or standard was
specifically applicable to the particular work and working
condition involved, as contrasted with a statute, rule,
regulation or standard generally requiring safe workplaces,
equipment or working conditions; and
(D) That notwithstanding the existence of the facts set
forth in subparagraphs (A) through (C) hereof, such employer
nevertheless thereafter exposed an employee to such specific
unsafe working condition intentionally; and
(E) (D) That such employee so exposed suffered serious
injury or death as a direct and proximate result of such specific
unsafe working condition.
(iii) In cases alleging liability under the provisions of
the preceding paragraph (ii):
(A) No punitive or exemplary damages shall be awarded to the
employee or other plaintiff;
(B) Notwithstanding any other provision of law or rule tothe contrary, and consistent with the legislative findings of
intent to promote prompt judicial resolution of issues of
immunity from litigation under this chapter, the court shall
dismiss the action upon motion for summary judgment if it shall
find, 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 (A) through (E) (D) of the preceding paragraph
(ii) 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 shall determine that there is not sufficient
evidence to find each and every one of the facts required to be
proven by the provisions of subparagraphs (A) through (E) (D) of
the preceding paragraph (ii); and
(C) The provisions of this paragraph and of each
subparagraph thereof shall be 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 be held void, the remaining provisions of this act and
this code shall remain valid.
(d) The reenactment of this section in the regular session
of the Legislature during the year one thousand nine hundred
eighty-three shall 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 such
reenactment.
NOTE: The purpose of this bill is to include unsafe working
conditions, which the employer knew or should have known existed,
within the definition of "deliberate intention".