Bill Text: WV SB252 | 2022 | Regular Session | Introduced
Bill Title: Relating generally to workers’ compensation
Spectrum: Slight Partisan Bill (Republican 3-1)
Status: (Introduced - Dead) 2022-01-13 - To Judiciary [SB252 Detail]
Download: West_Virginia-2022-SB252-Introduced.html
WEST VIRGINIA LEGISLATURE
2022 REGULAR SESSION
Introduced
Senate Bill 252
By Senator Trump
[Introduced January 13, 2022;
referred
to the Committee on the Judiciary]
A BILL to repeal §23-2-6a of the Code of West Virginia, 1931, as amended; to amend and reenact §23-2-6 and §23-2-8 of said code; and to amend and reenact §23-4-2 of said code, all relating to workers’ compensation; providing for exemption of contributing employers from liability; providing that the rights of employees to benefits for work injuries are exclusive of all other rights and remedies; providing for liability of employers electing not to pay or defaulting in payment of premiums and prohibiting certain common-law defenses, with exceptions; exceptions; and denying benefits to employees for self-inflicted injuries.
Be it enacted by the Legislature of West Virginia:
ARTICLE 2. EMPLOYERS AND EMPLOYEES SUBJECT TO CHAPTER; EXTRATERRITORIAL COVERAGE.
§23-2-6. Exemption of contributing employers from liability.
(a) Any employer subject to this chapter, who subscribes
and pays into the workers’ compensation fund the premiums provided by this
chapter, or who elects to make direct payments of compensation as provided in
this section, and who maintains mandatory workers’ compensation insurance
coverage for the protection of its employees, or who has received permission by
the insurance commissioner to self-insure their workers’ compensation risk
pursuant to W. Va. Code §23-2-9 of this code and maintains that status, is
not liable to respond in damages at common law or by statute for the injury or
death of any employee, however occurring, after so subscribing or electing
and during any period in which the employer is not in default in the payment of
the premiums or direct payments, and who maintains mandatory workers’
compensation insurance coverage or its approved self-insured status and has
complied fully with all other provisions of this chapter. Continuation in the
service of the employer shall be is considered a waiver by the
employee and by the parents of any minor employee of the right of action as
aforesaid which the employee or his or her parents would otherwise have: Provided,
That in case of employers not required by this chapter to subscribe and pay
premiums into the workers’ compensation fund, the injured employee has remained
in the employer’s service with notice that his or her employer has elected to
pay into the workers’ compensation fund the premiums provided by this chapter,
or has elected to make direct payments as aforesaid.
(b) The rights and remedies granted to an employee subject to this chapter, due to injury or death, are exclusive of all other rights and remedies, whether provided at common law or otherwise. These rights and remedies are not limited to compensatory and punitive damages of the employee, personal representative or anyone else entitled to recover damages from an employer, as defined in §23-2-1 of this code and prime contractor or subcontractor, as defined in §23-2-1d of this code, or any of the employer's officers, agents or employees while acting within the scope of their employment and in the course of their employment or in furtherance of the employer’s business, because of the injury or death. The negligent acts of a co-employee may not be imputed to the employer. No role, capacity, or persona of any employer, principal, officer, director, or stockholder other than that existing in the role of employer of the employee may be relevant for consideration for purposes of this chapter, and the remedies and rights provided by this chapter are exclusive regardless of the multiple roles, capacities, or personas the employer may be considered to have.
§23-2-6a. Exemption from liability of officers, managers, agents, representatives or employees of contributing employers.
[Repealed.]
All employers required by
this chapter to subscribe to and pay premiums into the workers’ compensation
fund, maintain mandatory workers’ compensation insurance coverage, whether
through a private carrier or an approved self-insurance program, except the
State of West Virginia, the governmental agencies or departments created by it,
and municipalities and political subdivisions of the state, and who do not
subscribe to and pay premiums into the workers’ compensation fund or maintain
that coverage as required by this chapter and have not elected to pay
individually and directly or from benefit funds compensation and expenses to
injured employees or fatally injured employees' dependents under the
provisions of W. Va. Code §23-2-9 of this code, or having so subscribed or
elected or provided for the mandatory coverage, shall be in default in
the payment of same, or not having otherwise fully complied with the
provisions of §23-2-5 or §23-2-9 of this code, shall be are liable
to their employees (within the meaning of this article) for all damages
suffered by reason of personal injuries sustained in the course of employment
caused by the wrongful act, neglect or default of the employer or any of the
employer’s officers, agents or employees while acting within the scope of their
employment and in the course of their employment and also to the personal
representatives of such these employees where death results from
such personal injuries, and in any action by any such employee or personal
representative thereof, such the defendant shall may
not avail himself or herself of the following common-law defenses: The
defense of the fellow-servant rule; the defense of the assumption of risk; or
the defense of contributory negligence; and further shall may not
avail himself or herself of any defense that the negligence in question
was that of someone whose duties are prescribed by statute: Provided,
That such the provision depriving a defendant employer of certain
common-law defenses under the circumstances therein set forth shall may
not apply to an action brought against a county court, Board of Education,
municipality, or other political subdivision of the state or against any
employer not required to cover his or her employees under the provisions
of this chapter.
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 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: Provided,
That the employer must shall 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 blood test for
intoxication is given following an accident, at the request of the employer or
otherwise, and if any of the following are true, the employee is deemed considered
intoxicated and the intoxication is the proximate cause of the injury:
(1) If a blood test is administered within two hours of the accident and evidence 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 there was, at the time of the blood test, evidence of either on or off the job use of a nonprescribed controlled substance as defined in the West Virginia Uniform Controlled Substances Act, West Virginia Code §60A-2-201, et seq., Schedules 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.
(c) If injury results to
any employee from the deliberate intention of his or her employer to produce
the injury or death, the employee, or, if the employee has been found to be
incompetent, his or her conservator or guardian, may recover under this chapter
and bring 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. If death results to any employee
from the deliberate intention of his or her employer to produce the injury or
death, the representative of the estate may recover under this chapter and
bring a cause of action, pursuant to section six, article seven of chapter
fifty-five of this code, 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. To recover under this section, the
employee, the employee's representative or dependent, as defined under this
chapter, must, unless good cause is shown, have filed a claim for benefits
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 co-employee; 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:
(A) 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: (i) Conduct which produces a result that was not specifically
intended; (ii) conduct which constitutes negligence, no matter how gross or
aggravated; or (iii) willful, wanton or reckless misconduct; or
(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:
(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;
(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.
(I) In every case actual
knowledge must specifically be proven by the employee or other person(s)
seeking to recover under this section, and shall not be deemed or presumed: Provided,
That actual knowledge may be shown by evidence of intentional and
deliberate failure to conduct an inspection, audit or assessment required by
state or federal statute or regulation and such inspection, audit or assessment
is specifically intended to identify each alleged specific unsafe working
condition.
(II) Actual knowledge is
not established by proof of what an employee's immediate supervisor or
management personnel should have known had they exercised reasonable care or
been more diligent.
(III) Any proof of the
immediate supervisor or management personnel's knowledge of prior accidents,
near misses, safety complaints or citations from regulatory agencies must be
proven by documentary or other credible evidence.
(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.
(I) If the specific
unsafe working condition relates to a violation of a commonly accepted and
well-known safety standard within the industry or business of the employer,
that safety standard must be a consensus written rule or standard promulgated
by the industry or business of the employer, such as an organization comprised
of industry members: Provided, That the National Fire Protection
Association Codes and Standards or any other industry standards for Volunteer
Fire Departments shall not be cited as an industry standard for Volunteer Fire
Departments, Municipal Fire Departments and Emergency Medical Response Personnel
as an unsafe working condition as long as the Volunteer Fire Departments,
Municipal Fire Departments and the Emergency Medical Response Personnel have
followed the Rules that have been promulgated by the Fire Commission.
(II) If the specific
unsafe working condition relates to a violation of a state or federal safety
statute, rule or regulation that statute, rule or regulation:
(a) Must be specifically
applicable to the work and working condition involved as contrasted with a
statute, rule, regulation or standard generally requiring safe workplaces,
equipment or working conditions;
(b) Must be intended to
address the specific hazard(s) presented by the alleged specific unsafe working
condition; and,
(c) The applicability of
any such state or federal safety statute, rule or regulation is a matter of law
for judicial determination.
(iv) That
notwithstanding the existence of the facts set forth in subparagraphs (i)
through (iii), inclusive, of this paragraph, the person or persons alleged to
have actual knowledge under subparagraph (ii) nevertheless intentionally
thereafter exposed an employee to the specific unsafe working condition; and
(v) That the employee
exposed suffered serious compensable injury or compensable death as defined in
section one, article four, chapter twenty-three as a direct and proximate
result of the specific unsafe working condition. For the purposes of this
section, serious compensable injury may only be established by one of the
following four methods:
(I) It is shown that the
injury, independent of any preexisting impairment:
(a) Results in a
permanent physical or combination of physical and psychological injury rated at
a total whole person impairment level of at least thirteen percent (13%) as a
final award in the employees workers' compensation claim; and
(b) Is a personal injury
which causes permanent serious disfigurement, causes permanent loss or
significant impairment of function of any bodily organ or system, or results in
objectively verifiable bilateral or multi-level dermatomal radiculopathy; and
is not a physical injury that has no objective medical evidence to support a
diagnosis; or
(II) Written
certification by a licensed physician that the employee is suffering from an
injury or condition that is caused by the alleged unsafe working condition and
is likely to result in death within eighteen (18) months or less from the date
of the filing of the complaint. The certifying physician must be engaged or
qualified in a medical field in which the employee has been treated, or have
training and/or experience in diagnosing or treating injuries or conditions
similar to those of the employee and must disclose all evidence upon which the
written certification is based, including, but not limited to, all
radiographic, pathologic or other diagnostic test results that were reviewed.
(III) If the employee
suffers from an injury for which no impairment rating may be determined
pursuant to the rule or regulation then in effect which governs impairment
evaluations pursuant to this chapter, serious compensable injury may be
established if the injury meets the definition in subclause (I)(b).
(IV) If the employee
suffers from an occupational pneumoconiosis, the employee must submit written
certification by a board certified pulmonologist that the employee is suffering
from complicated pneumoconiosis or pulmonary massive fibrosis and that the
occupational pneumoconiosis has resulted in pulmonary impairment as measured by
the standards or methods utilized by the West Virginia Occupational Pneumoconiosis
Board of at least fifteen percent (15%) as confirmed by valid and reproducible
ventilatory testing. The certifying pulmonologist must disclose all evidence
upon which the written certification is based, including, but not limited to,
all radiographic, pathologic or other diagnostic test results that were
reviewed: Provided, That any cause of action based upon this clause must
be filed within one year of the date the employee meets the requirements of the
same.
(C) In cases alleging
liability under the provisions of paragraph (B) of this subdivision:
(i) The employee, the
employee's guardian or conservator, or the representative of the employee's
estate shall serve with the complaint a verified statement from a person with
knowledge and expertise of the workplace safety statutes, rules, regulations
and consensus industry safety standards specifically applicable to the industry
and workplace involved in the employee's injury, setting forth opinions and
information on:
(I) The person's
knowledge and expertise of the applicable workplace safety statutes, rules,
regulations and/or written consensus industry safety standards;
(II) The specific unsafe
working condition(s) that were the cause of the injury that is the basis of the
complaint; and
(III) The specific
statutes, rules, regulations or written consensus industry safety standards
violated by the employer that are directly related to the specific unsafe
working conditions: Provided, however, That this verified statement
shall not be admissible at the trial of the action and the Court, pursuant to
the Rules of Evidence, common law and subclause two-c, subparagraph (iii),
paragraph (B), subdivision (2), subsection (d), section two, article four,
chapter twenty-three of this code, retains responsibility to determine and
interpret the applicable law and admissibility of expert opinions.
(ii) No punitive or
exemplary damages shall be awarded to the employee or other plaintiff;
(iii) 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 employer may request and
the court shall give due consideration to the bifurcation of discovery in any
action brought under the provisions of subparagraphs (i) through (v), of
paragraph (B) such that the discovery related to liability issues be completed
before discovery related to damage issues. 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 (i) through (v), inclusive, paragraph (B) 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 (i) through (v), inclusive, paragraph (B) of this
subdivision; and
(iv) 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) Any cause of action
brought pursuant to this section shall be brought either in the circuit court
of the county in which the alleged injury occurred or the circuit court of the
county of the employer's principal place of business. With respect to causes of
action arising under this chapter, the venue provisions of this section shall
be exclusive of and shall supersede the venue provisions of any other West
Virginia statute or rule.
(f) The reenactment of
this section in the regular session of the Legislature during the year 2015
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.
(g) The amendments to
this section enacted during the 2015 session of the Legislature shall apply to
all injuries occurring on or after July 1, 2015.
NOTE: The purpose of this bill is to reaffirm and enhance the workers’ compensation exclusive remedy rule or doctrine.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
