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Introduced Version Senate Bill 403 History

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Senate Bill No. 403

(By Senators Hall, K. Facemyer, Nohe, Barnes, Boley and Sypolt)

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[Introduced February 3, 2011; referred to the Committee on the Judiciary; and then to the Committee on Finance.]

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A BILL to amend and reenact §23-4-2 of the Code of West Virginia, 1931, as amended, relating to disbursement where injury is self-inflicted or intentionally caused by the employer.

Be it enacted by the Legislature of West Virginia:

    That §23-4-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:

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 from the Workers’ Compensation Fund, from a self-insured employer or otherwise under the provisions of this chapter on account of any personal injury to or death to any an 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 pursuant to rules for the administration of the test promulgated by the board of managers. 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 test for intoxication is given following an accident, at the request of the employer or otherwise, and the results are as follows, there shall be a rebuttable presumption which can only be overcome by clear and convincing evidence that the employee was intoxicated and that the intoxication was the proximate cause of the injury:

    (1) If a test is administered within two hours of the event that results in injury and the test results indicate 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 the test results indicate that there was either on or off the job use of a nonprescribed controlled substance as defined in the West Virginia Uniform Controlled Substance Act, West Virginia Code §60A-2-201, et seq., Scheduled 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.

The following definitions apply to this section:

    (1) “Amounts receivable” means future benefits related to the serious injury or death giving rise to the asserted cause of action that the employee or the employee’s dependent is eligible to receive under this chapter, established with reasonable certainty.

    (2) “Amounts received” means all amounts paid under this chapter by the self-insured employer or the employers’ workers’ compensation insurer related to the serious injury or death giving rise to the asserted cause of action.

    (3) “Commonly accepted and well-known safety standard within the industry or business of the employer” means a consensus written safety standard promulgated by an organization or group generally recognized as representing the entire industry or business of the employer, such as an organization that includes a majority of industry members, and not by any state or federal body. Equipment or machinery operator’s manuals, maintenance manuals or similar product materials, and safety standards or rules promulgated or suggested by industries or businesses other than the industry or business of the employer, are not competent evidence to prove subsection (d)(2)(ii)(C) of this section unless specifically adopted in writing as a consensus safety standard by the industry or business of the employer.

    (4) “Compensable injury” or “compensable death” means an injury or death that is determined to be compensable under this chapter. In the event a worker’s compensation claim is denied or where compensability is in dispute and has not been decided, a cause of action under this section does not exist and does not accrue until the time such claim is finally ruled compensable and any lawsuit asserting a cause of action under this section must be filed within one year of such determination or within two years of the injury or death, whichever is longer.

    (5) A “dependent” is a person who is determined to be a dependent as defined in this chapter. Any administrative determination of such dependent or dependents shall be binding in a cause of action maintained under this section.

    (6) “Employer” means a person, firm, association, corporation, partnership, governmental agency or legal entity regularly employing the employee for the purpose of carrying on any form of industry, service or business in this state. No supervisory or management personnel of the employer may be personally sued in an action filed pursuant to this section.

    (7) “Excess damages” recoverable over amounts received or receivable under this chapter are:

    (A) In case of serious injury, damages for pain and suffering; mental anguish; loss of enjoyment of life; lost wages, to the extent they exceed the permanent total, temporary total, temporary total rehabilitation, temporary partial rehabilitation and permanent partial disability benefits paid under this chapter; lost future earnings reduced to present value, to the extent this calculation exceeds future permanent total, temporary total, temporary total rehabilitation, temporary partial rehabilitation and permanent partial disability benefits receivable plus predicted future earnings, all reduced to present value.

    (B) In case of death, those elements of subparagraph (A) that apply; funeral expenses, to the extent they exceed the amount paid under this chapter; lost wages, to the extent they exceed the permanent, temporary total, permanent partial disability and death benefits paid under this chapter; lost future earnings reduced to present value, to the extent this calculation exceeds the maximum death benefits receivable by any dependent, reduced to present value; amount to replace lost future household services, reduced to present value; and, sorrow, mental anguish and solace which may include society, companionship, comfort, guidance, kindly offices and advice of decedent.

    In no event may the recovery under (A) or (B) for noneconomic losses exceed $250,000 or an amount that is equal to three times the amount of economic loss, whichever is less.

    (8) “Serious injury” means an injury that in and of itself and not in combination with any other compensable injury or conditions results in a permanent total disability award under this chapter.

    (c) If injury or death result to any employee from the deliberate intention of his or her employer to produce the injury or death, the employee, the widow, widower, child or dependent of the employee has the privilege to take under this chapter and has 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, whether filed or not. If an employee suffers serious injury or death as a result of the “deliberate intention” of his or her employer to produce such serious injury or death:

    (1) In the case of serious injury, the employee has a cause of action against the employer for excess damages over and above amounts received or receivable in a claim for benefits under this chapter; or

    (2) In the case of death, the employee’s dependents as defined in this chapter, have a cause of action against the employer for excess damages over and above amounts received or receivable in a claim for benefits under this chapter. This cause of action must be maintained by the personal representative of the deceased employee for the benefit of the employee’s dependents. In the event no such dependents exist, no cause of action may be maintained under this section for the employee’s death.

    (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 coemployee; 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:

    (i) 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. A cause of action under this subparagraph (i) may also be asserted against the employee’s individual supervisor who committed the act or acts causing injury or death; however, the consciously, subjectively and deliberately formed intention of such supervisor to produce the specific result of injury or death to the employee, if proved, may not be imputed to the employer and the employer may not be held vicariously liable under this subparagraph for such act or acts. 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, 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;

    (C) 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, as demonstrated by competent evidence of written standards or guidelines which reflect a consensus safety standard in the industry or business, which statute, rule, regulation or standard was specifically applicable to the particular work and working condition involved and was intended to address the specific hazard or hazards presented by the alleged specific unsafe working condition, as contrasted with a statute, rule, regulation or standard generally requiring safe workplaces, equipment or working conditions;

    (D) That notwithstanding the existence of the facts set forth in subparagraphs (A) through (C), inclusive, of this paragraph, the employer nevertheless intentionally thereafter exposed an employee to the specific unsafe working condition; and

    (E) That the employee exposed suffered serious compensable injury or compensable death as defined in section one, article four, chapter twenty-three whether a claim for benefits under this chapter is filed or not as a direct and as a proximate result of the specific unsafe working condition.

    (iii) In cases alleging liability under the provisions of paragraph (ii) of this subdivision:

    (A) No punitive or exemplary damages shall be awarded to the employee or other plaintiff;

    (B) 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 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 (A) through (E), inclusive, paragraph (ii) 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 (A) through (E), inclusive, paragraph (ii) of this subdivision; and The cause of action is the exclusive right of an injured employee or other person entitled to recover under this section. No part of this section may be read or interpreted so as to allow any party who is not an injured employee or other person entitled to recover to assert a cause of action directly against an employer for deliberate intention. A third party claim for contribution may only be made against an employer where the injured employee or other person entitled to recover under this section asserts a deliberate intention cause of action against the employer in addition to other causes of action against other defendants. In that situation, the trier of fact must apportion, either through specific findings of fact made by the court in a trial without a jury, or through a special interrogatory to the jury, fault among all defendants against whom liability is found, including a percentage of fault for the “deliberate intention” of the employer if it so finds. Only in this particular instance may a nonemployer defendant recover for contribution from the employer. A finding by the trier of fact that the employer acted with deliberate intention does not equate to a finding that the employer acted with the intention of inflicting injury or death pursuant to West Virginia Code §55-7-24(b)(1). Contribution and implied indemnity claims against the employer by third parties are not permitted and a third party who is sued by an injured employee or other person entitled to recover under this section may not implead the employer into the action seeking implied indemnity or contribution upon a deliberate intention theroy. Express indemnity claims may be asserted.

    In the event the employee or other person entitled to recover under this section asserts claims against parties other than the employer for a compensable injury or compensable death claimed to be caused by “deliberate intention” and such employee or other person entitled to recover under this section prevails against the employer and the nonemployer party or parties or settles with the employer, then such nonemployer party or parties shall be entitled to the same offset for amounts received or amounts receivable under this chapter for the injury or death as the employer. A settlement by the employee or other person entitled to recover under this section with the employer shall not affect the nonemployer defendants’ entitlement to this offset and the nonemployer defendant shall, in addition, be entitled to an offset for any settlement amount paid by the employer. Any subrogation amount recoverable by the self-insured employer or workers’ compensation insurer from the employee pursuant to West Virginia Code §23-2A-1 shall be deducted from the nonemployer defendants’ total offset.

    (C) 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. Where the injured or deceased employee is a supervisor or member of management of the employer, no recovery may be had by the employee or other person entitled to recover under this section unless the employee or other person entitled to recover under this section satisfies the subparagraphs (d)(2)(ii)(B) and (D) as to supervisors of injured or deceased employees or members of management superior to the injured or deceased employee.

    (e) The reenactment of this section in the regular session of the Legislature during the year 1983 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.

    (f) The amendments to this section enacted during the 2005 session of the Legislature shall apply to all injuries occurring and all actions filed on or after July 1, 2005.




    NOTE: The purpose of this bill is to clearly express circumstances giving rise to employer and third-party liability under the deliberate intention exception to West Virginia’s Workers Compensation scheme and to expressly state recoverable damages.


    Strike-throughs indicate language that would be stricken from the present law and underscoring indicates new language that would be added.

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