Workers’ Compensation Reform: SB 744 (2005)


Strengthened requirements necessary for an employee to prove injury as

Strengthened requirements necessary for an employee to prove injury as a results of the employer’s “deliberate intentions” under West Virginia Code §23-4-2, which preserves an action where the employee is injured through the deliberate intention of the employer (under West Virginia Code §23-2-6, employers in good standing with the Workers’ Compensation fund are immune from suits by injured workers, except as provided under §23-4-2). The five part test for proof of deliberate intention in §23-4-2(d) was strengthened by doing the following: (1) made clear that §23-4-2 governs actions by employees against their employers arising from workplace injuries, whether a workers’ compensation claim was filed or not. Section §23-4-2(c) is amended to reflect that it applies whether a claim is filed or not, and §23-4-2(d)(2)(E) reflects that claims must satisfy the statutory requirements of compensability whether a claim is filed or not; (2) the second of the five part test, §23-4-2(d)(2)(B), is amended to require actual knowledge before the injury of the specific unsafe working condition and high degree of risk. This replaces the prior language of “subjective realization and appreciation.”; (3) the third element, which encompasses violation of “commonly accepted and wellknown safety standard within the industry or business of the employer,” now requires proof “by competent evidence of written standards or guidelines which reflect a consensus safety standard in the industry or business.”; (4) subsection (D) contains a grammatical change that retains the requirement of intentional exposure; and (5) section §23-4-2(d)(2) is corrected to make reference to the immunity provision in §23-2-6, which was inadvertently omitted when the statute was amended.

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