CHARLESTON – Talks among state Senate leaders, business leaders and trial attorneys have resulted in a compromise on a deliberate intent bill.
House Bill 2011 passed the House by a 59-38 vote last month and was sent to the state Senate. It would restore the original purpose of the deliberate intent exception to the state workers’ compensation system.
The lead sponsor of the bill in the House said it originally struck a good balance between protecting the rights of employees and employers.
It also made sure " our small businesses aren't driven out of business by the potentially devastating effects of lawsuits,” Del. Roger Hanshaw (R-Clay) said last month. “This bill helps restore the predictability of the court system, while also a preserving the right to a fair recovery.”
Not everyone saw the bill the same as Hanshaw.
The president of a statewide group of trial lawyers called the House bill “a mistake that risks the lives and safety of West Virginia workers.”
“The legislation provides immunity to employers that endanger their workers because their worksites violate governmental and industry safety standards,” West Virginia Association for Justice President Anthony Majestro said last month. “The burden of proof is so high under the proposal, that it is easier to prove a murder case than a deliberate intent case like those addressed in the legislation."
However, the WVAJ worked with leaders on the compromise now before the Senate.
According to the WVAJ, these deliberate intent claims arise when a worksite or equipment does not meet written safety standards and an employee is injured or killed.
Majestro said the compromise legislation is the result of weeks of negotiation with Senate leadership and key stakeholders, including the West Virginia Coal Association and the West Virginia Business and Industry Council.
“We believe that our compromise bill is the best solution for both West Virginia businesses and workers," Majestro said. "The revised bill makes it clearer which cases should be brought under the deliberate intent statute.
"It tightens the criteria, but also ensures that workers with meritorious claims can have their cases heard it court."
Majestro praised Senate leaders for their work on the measure.
“This compromise would not have been possible without the support and encouragement of Senate President Bill Cole, Majority Leader Mitch Carmichael and Senate Judiciary Chairman Charles Trump," he said. "They worked with us and representatives of the business community to ensure that a compromise that worked for both sides could be reached.
"We thank them, as well as the West Virginia Coal Association and the West Virginia Business and Industry Council, for working with us.”
According to Majestro, employers must ensure that their facilities, worksites and equipment meet written governmental and industry safety standards. When a worker is injured or killed on the job as a result of unsafe conditions, a deliberate intent claim can be filed. All claims must meet a strict five-part test that includes:
- A specific, unsafe working condition exists which presents risk of serious injury or death;
- The specific, unsafe working condition is a violation or contradictory to federal, state or written industry safe workplace rules and regulations;
- The employer through its management knows the unsafe working condition exists and the risks that it presents;
- The employer nevertheless exposes the employee to the unsafe working condition; and
- The employee is injured or killed.
If any element is not met, there is no deliberate intent claim.
Majestro said the compromise tightens the language regarding employer knowledge of the condition to make it clearer for the court and jury to interpret. It also defines “serious injury” as one that meets a threshold of at least 13 percent permanent, partial disability.