Introduced Version
Senate Bill 12 History
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Senate Bill No. 12
(By Senators M. Hall, Barnes and McCabe)
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[Introduced February 13, 2013; referred to the Committee on
Banking and Insurance; and then to the Committee on the
Judiciary.]
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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 an employee is entitled to receive any
a 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 a test for
intoxication is given following an accident, at the request of the
employer or otherwise, there is a rebuttable presumption that the
employee was intoxicated and that the intoxication was the
proximate cause of the injury, absent clear and convincing evidence
to the contrary, when the test results are as follows:
_____(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 workers' 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 offers
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) (A) It is proved that the employer or person against whom
liability is asserted acted with a consciously, subjectively and
deliberately formed intention conscious, subjective and deliberate
formed intent to produce the specific result of injury or death to
an employee. A cause of action under this paragraph may also be
asserted against the employee's individual supervisor who committed
the act or acts causing injury or death. The conscious, subjective
and deliberate formed intent of the 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) (i) Conduct which produces a result that was not
specifically intended;
(B) (ii) Conduct which constitutes negligence, no matter how
gross or aggravated; or
(C) (iii) Willful, wanton or reckless misconduct; or
(ii) (B) 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) (i) 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) (ii) 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) (iii) 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) (iv) That notwithstanding the existence of the facts set
forth in subparagraphs (A) (i) through (c) (iii), inclusive, of
this paragraph, the employer nevertheless intentionally thereafter
exposed an employee to the specific unsafe working condition; and
(E) (v) 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) (C) In cases alleging liability under the provisions of
paragraph (ii) (B) of this subdivision:
(A) (i) No punitive or exemplary damages shall be awarded to the employee or other plaintiff;
(B) (ii) 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 allows 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 theory. 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 is 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 does not affect the nonemployer defendants'
entitlement to this offset and the nonemployer defendant is, in
addition, entitled to an offset for any settlement amount paid by
the employer. A 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) (iii) 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) subparagraphs (ii) and (iv), paragraph (B),
subdivision (2), of this subsection 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.