Workers’ compensation programs are a trade-off, providing participating employers with immunity from civil lawsuits by employees injured on the job, while compensating those employees without proof of fault. Since its 1913 adoption, West Virginia’s Workers’ Compensation Act has contained an exception to employer immunity if an injured employee can show a “deliberate intent” by the employer to injure the employee.
In McComas v. ACF Industries, LLC, the Supreme Court of Appeals reversed a circuit court’s dismissal in favor of an employer in a deliberate intent case. The plaintiff was a welder employed by ACF which operated an industrial plant for the construction of railroad cars. The plaintiff was directed by his foreman to go to a section of the ACF plant to begin building sides for railroad cars. The area where the plaintiff and other employees were sent to work was dark, and turning on the electric power was necessary for lighting the area and powering the welding machines used to build the cars. Initially, the employees attempted to turn the power on by using the individual circuit breakers. When that attempt was unsuccessful, the plaintiff approached an adjoining 480-volt fused, switch box. The box was enclosed and the side-handle was down in the “off” position. When plaintiff raised the handle to the “on” position, an arc blast blew him backwards and to the floor. Despite wearing protective gear, the plaintiff suffered severe burns to 25% of his body. The Plaintiff filed a deliberate intent suit against his employer under the 2005 version of W. Va. Code 23-4-2(d)(2)(ii). At that time, the deliberate intent action could be satisfied only if a plaintiff could prove the following:
Although plaintiffs’ lawyers like to think that an employee can get around the employers’ workers’ compensation immunity easily by making a “deliberate intent” claim, the West Virginia Supreme Court of Appeals recently affirmed that it takes more than just pleading that there was a specific unsafe working condition in order to prevail on such a claim. In a complete victory for the employer, the Court also affirmed that a mere clerical error on an employee’s unemployment compensation paperwork is not sufficient evidence to show that the employer discharged the employee in retaliation for filing the workers’ compensation claim.
Recently, the Ohio Supreme Court decided a key case regarding a statutory exemption to workers’ compensation laws for so-called “deliberate intent” actions. The Ohio statute in question allows an individual injured on the job to recover under a tort theory of liability if the individual can prove the employer committed a tortious act with the intent to injure the worker or with the belief the injury was substantially certain to occur. This can include removing a safety guard or precaution from the workplace, which creates a rebuttable presumption of intent to injure.
In a recent Supreme Court of Appeals of West Virginia case decided on April 15, 2010, Ramey v. Contractor Enterprises, Inc., the Supreme Court issued an important ruling on “deliberate intent” actions that should prove to be helpful for West Virginia employers. A deliberate intent action is an action brought by an employee to recover damages for a work-related injury. The deliberate intent action allows the employee to recover beyond what he or she is entitled to under the workers’ compensation system.