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Are there ways around the workers' compensation exclusivity rule?

Workers' compensation in West Virginia is like that in most states in that except for narrowly-defined exceptions it is intended to be the sole remedy available to employees who are hurt on the job. This intention is generally known as the "exclusivity rule." There exist, however, some situations in which an employee can seek to go outside of workers' compensation, which this post will address below.

Third party liability. If the work-related injury was caused at least in part by a person who had no connection with the employer, then it can be possible to seek damages against that person separately from a workers' compensation benefits claim. 

Intentional acts by the employer. If the worker's injury is the result of conduct by the employer that is the result of conscious, subjective and deliberate intent on the part of the employer to produce death or injury to the employee, this is an exception under the West Virginia workers' compensation law. This is a strict standard, and cannot be satisfied by merely showing that the employer was negligent or reckless.

Alternatively, if the injured employee can prove all of the following elements, then an employer may be found liable for the injury outside of workers' compensation:

  • A specific unsafe working condition existed, presenting a high degree of risk and a strong probability of serious injury or death;
  • The employer had a subjective realization and appreciation of the existence of such unsafe working condition, and of the high degree of risk and the strong probability of serious injury or death it presented;
  • The unsafe working condition was a violation of a state or federal safety statute, rule or regulation, or of a commonly accepted and well-known safety standard within the industry or business of such employer, and was specifically applicable to the particular work and working condition involved;
  • The employer intentionally exposed the employee to such unsafe working condition; and
  • The employee suffered serious injury or death as a direct and proximate result of such specific unsafe working condition.

Proving that your employer either deliberately intended to injure you, or allowed for an extremely dangerous work condition to exist and intentionally exposed you to it, is something that you will need the assistance of a highly experienced workers' compensation law firm to assist you with.

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