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Introduced Version Senate Bill 564 History

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Senate Bill No. 564

(By Senators Caruth, Sprouse, Guills and Minear)

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[Introduced March 17, 2005; 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 deliberate intent actions generally.

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 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 determinating whether the person is intoxicated.
(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.
(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 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 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 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 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: (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 prior to the exposure of any employee to such specific unsafe working condition, the employer had a subjective realization and an appreciation of the existence actual personal knowledge of the specific unsafe working condition and actual personal knowledge 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, 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 in regard to which violation of a state or federal safety statute, rule or regulation a citation was issued by an appropriate state or federal agency if investigated by a state or federal agency, or in regard to which by competent expert testimony it can be demonstrated that a citation would have been issued by the appropriate state or federal agency if an investigation had been undertaken by such appropriate state or federal agency.
(D) That notwithstanding the existence of the facts set forth in subparagraphs (A) through (C), inclusive, of this paragraph, the employer nevertheless by intentional and overt act directed specifically at an employee, thereafter exposed an employee to the specific unsafe working condition intentionally; required such employee to be exposed to the specific unsafe working condition; and
(E) That the employee exposed suffered serious compensable injury or compensable death as a direct and proximate result of the specific unsafe working condition. In order to be considered a serious injury pursuant to this subsection, the injury suffered must be of such severity to entitle the injured worker to a permanent partial disability of at least twenty percent, exclusive of psychiatric disability, as established by expert testimony consistent with the Guide to Permanent Impairment, Fourth Edition, or, in the case of a nonorthopedic injury, consistent with a medical reference or treatise of equivalent authority as recognized by the medical community in the discipline of which such injury falls. Although psychiatric injury will not be included for the purpose of this serious injury threshold, any degree of psychiatric damage which is directly and proximately related to the compensable injury may be considered by the trier of fact as an element of damages.
(iii) The conduct of the injured employee cannot be excluded as a direct and proximate cause of the accident and the employer may assert as a defense the comparative negligence of the injured employee based upon his or her failure to adequately notify the employer of the unsafe working condition or of the substantial risk of harm associated with an employment task; based upon the actions or failure to act in a prudent manner of such employee at any time or in any manner in relation to the work being performed at the time of the injury to such employee; and/or based upon such other acts or failures to act by such employee which are negligent and proximately caused or related to the injury sustained. Willful self-exposure by an employee to a known dangerous condition at any time, either with or without the knowledge of the employer and in any situation other than under duress by the employer which is being exercised contemporaneously or nearly contemporaneously with the accident causing injury, will be a complete and absolute affirmative defense to a cause of action under this section.
(iii) (iv) 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) In order to prevail upon a cause of action against the employer under subsection (ii), the plaintiff must satisfy the burden of proof to the trier of fact by clear and convincing evidence;
(B) (C) 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
(C) (D) 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) The reenactment of this section in the regular session of the Legislature during the year one thousand nine hundred eighty-three 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.



NOTE: The purpose of this bill is to change the deliberate intent statute to require actual personal knowledge of an unsafe working condition by the employer in a deliberate intent action; require that either a citation by a federal or state agency be issued or that it be shown by expert testimony that such a citation would have been issued; to require that the employer required the injured employee to be exposed to an unsafe working condition by an intentional and overt act that was specifically directed at that employee; to require that the employee be at least 20% permanently partially disabled, not including psychiatric injury; to require that comparative negligence on the part of the employee be considered; and to require that the plaintiff prove his or her case by clear and convincing evidence.

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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