Occupational Workplace Injuries & Workers' Compensation

“As a general principle, the West Virginia Workers’ Compensation Act provides immunity to covered employers for employee suits for 'damages at common law or by statute' resulting from work-related injuries. An employer’s immunity is lost, however, when it acts with 'deliberate intention' to cause the employee’s injury. If the deliberate intention exception applies, the employee may file an action for damages in excess of workers’ compensation benefits.

This Court has recognized that “`[a] plaintiff may establish a ‘deliberate intention’ in a civil action against an employer for a work-related injury by offering evidence to prove the five specific requirements provided in [W.Va. Code § 23-4-2(d)(2)(ii) (2010)].’ Under West Virginia Code § 23-4-2(d)(2)(ii), 12 a plaintiff must prove the following five elements to establish a deliberate intention cause of action:

(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, 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 proximate result of the specific unsafe working condition.

(citations omitted, emphasis added).

If you think you have a Deliberate Intent claim, call Jacobs Law Office as soon as possible for a FREE case evaluation.

YOU CANNOT BE FIRED OR LOSE YOUR HEALTH INSURANCE FOR FILING A WORKERS’ COMPENSATION CLAIM

In West Virginia, employees have specific rights concerning their employment after they file a workers’ compensation claim:

1. No employer shall discriminate in any manner against any employee because the employee received or attempted to receive West Virginia workers’ compensation benefits.

2. Any employer who has provided medical insurance for an employee and his/her dependents by paying premiums, in whole or in part, shall not cancel or decrease employee or dependent benefits while the employee is claiming or receiving West Virginia workers’ compensation benefits. If the medical insurance policy required a contribution by the employee before the employee was injured with his/her workers’ compensation injury, then the employee must continue to make the contribution that was previously required.

3. It is against the law and a discriminatory practice for an employer to terminate an injured employee while the injured employee is off work due to an injury and is receiving or is eligible to receive temporary total disability benefits, unless the injured employee has committed a separate dischargeable offense.

4. It is against the law and a discriminatory practice for an employer to fail to reinstate an employee who has sustained an injury to the his/her former position of employment once the employee is released to return to work without restrictions.

Once you file a West Virginia workers’ compensation claim, your employer cannot reduce your medical/health insurance coverage, your employer must put you back to work at your old job once you are released to return to work without restrictions, and your employer

cannot fire you unless there is a specific reason such as theft or drug use.

For more information regarding any aspect of West Virginia workers’ compensation benefits, contact us for a FREE consultation.