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Key revisions in effect for West Virginia’s “deliberate intent” law


West Virginia legislators recently amended the statute governing claims against employers for workplace accidents.

West Virginia legislators recently made changes to a key workplace injury statute that further limits the rights of workers around the state. The so-called “deliberate intent” law allows, in certain circumstances, employees who are injured because of an unsafe working condition (or the estate of a worker who is killed because of an unsafe working condition) to seek a recovery from the employer, above and beyond the benefits offered by the state’s workers’ compensation system. West Virginia legislators have now made it even harder for employees to recover for these deliberate-intent claims.

Prior to recent legislative changes, employees seeking to bring a successful deliberate intent claim had to meet a five-factor test. Specifically, employees had to prove that the employer intentionally exposed the worker to an unsafe working condition that violated safety laws, standards or guidelines, was known to present a high degree of risk and strong probability of serious injury or death, and which the employer knew about prior to the worker being injured or killed.

The new law, which is found in West Virginia Code Section 23-4-2(d)(2)(B)), still contains a five-factor test. However, the evidence required to prove certain factors is now even more difficult due to more stringent definitions and/or evidentiary requirements.

Defining “actual knowledge”

One change involves a more stringent definition of what must be proven to show the employer had actual knowledge of the unsafe working condition. The new law specifies that actual knowledge cannot be presumed. However, actual knowledge can still be proven by showing that the employer failed to conduct an inspection, audit or assessment which was required by federal or state laws or regulations and which is intended to identify the unsafe working condition alleged to be the cause of the injury.

Another way a worker can prove that the employer had actual knowledge is to prove that supervisory or management personnel had knowledge of prior accidents, “near misses,” safety complaints or citations from regulatory agencies.

Defining “serious compensable injury”

The revised statute also makes significant revisions to what the law considers to be a “serious compensable injury,” which is one of the five factors that must be proven. A “serious compensable injury” must now be proven by one of the following methods:

1) Proof that the worker, independent of any preexisting impairment:

a. suffered permanent physical injuries, or a combination of physical and psychological injuries that amounts to at least a 13 percent “whole person impairment” under the worker’ compensation rules; AND

b. suffered a personal injury that caused permanent, serious disfigurement, permanent loss or significant impairment of function of any bodily organ or system, or resulted 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;


2) If the worker suffers from an injury for which no impairment rating may be determined, proof under (1)(b) above may be sufficient.


3) Certification from a licensed physician that the employee is suffering from an injury or condition that is caused by the unsafe working condition and is likely to result in the employee’s death within 18 months or less from the date of the filing of the Complaint;


(4) Certification by a board-certified pulmonologist that the worker is suffering from occupational pneumoconiosis or pulmonary massive fibrosis that results in an objective, discernible pulmonary impairment of at least 15 percent as confirmed by valid and reproducible ventilator testing.

Other legislative changes

Another key change that these revisions brought into effect is the requirement that all “deliberate intent” civil suits be filed only after a workers’ compensation claim has been initiated.

There is also an update to the statutory provision governing possible intoxication of an employee at the time of the injury. An employee’s intoxication will be deemed the proximate cause of his or her injury if a blood alcohol test performed within two hours of the injury reveals a blood alcohol level of more than .05 percent or the presence of a non-prescribed controlled substance in the employee’s body.

In addition, claims brought against employers must be accompanied by what is known in legal parlance as a “certificate of merit,” issued by a workplace safety expert, that the employee’s injuries were caused by specific unsafe working conditions, and that those conditions resulted from the employer’s violation of a safety statute/rule or regulation, or industry safety standards.

Help through this difficult process

Understanding the deliberate intent statute can be difficult for someone without in-depth knowledge of the West Virginia laws and legal opinions governing these claims. Trying to navigate the process alone can make an already difficult time almost unbearable, but having the guidance of an experienced attorney – like those at Farmer, Cline & Campbell, PLLC – can make a huge difference. The firm has convenient office locations in Charleston, Morgantown and Beckley to better serve injured clients just like you. Schedule your free initial consultation by calling them locally at 866-587-0167, toll-free at 866-587-0167 or sending an email.

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