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Duffield, Lovejoy, Stemple & Boggs, Attorneys at Law

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New West Virginia law restricts workers’ compensation lawsuits

Many workers’ compensation claims are difficult to win without the assistance of an attorney. In many cases, the employer and its insurer try to avoid, or at least reduce, their liability in workplace accidents. Workers’ compensation claims can be costly to employers, but the costs are justified when their employees are injured on the job and require medical care and assistance with living expenses during their time off work.

In addition to the actual workers’ compensation claim, some employees, or their family if the injury or illness results in death, may file a lawsuit to recover additional compensation from the employer.  An employer is generally immune to this second type of lawsuit unless certain conditions apply. In West Virginia, this is known as the “deliberate intention” exception.

In 1978, the West Virginia Supreme Court decided a case that substantially expanded the definition of “deliberate intention” to make it easier for employees to recover this additional compensation. Earlier this year, however, the West Virginia legislature substantially narrowed the law, giving employers more leverage to avoid these claims.

Now, an employee must prove that the employer acted with a “consciously, subjectively, and deliberately formed intention” that cause the harm to the employee OR prove five factors with substantial proof of “actual knowledge” by the employer. The employee may even have to prove that any safety standard that caused the harm is a consensus in the industry provided in a written rule or standard that has been adopted in that industry.

The new standards substantially restrict the opportunity to secure benefits. For example, the family of a worker who is killed may only be entitled to the limits of workers’ compensation recovery, provided even that can be proven, often leaving a spouse alone to raise children on a lower income than was previously earned by the deceased spouse. Before this year’s changes to the law, it was more likely that the surviving spouse could recover the additional compensation to help support the family in the coming future.

As stated previously, any workers’ compensation case has its hurdles to clear to be awarded benefits. But the more restrictive barriers that now strongly favor the employer make it even more difficult to recover any additional compensation. The assistance of an attorney who has knowledge of workers’ compensation cases in West Virginia is more important than ever.

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