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Delegates seek middle ground on ‘deliberate intent’ damages in workplace accidents

Delegates seem ready to accept a compromise over the difficult issue of damages in cases where injured workers can prove deliberate intent by employers who cut corners on safety.

Rick Hillenbrand

“This has been a challenge,” said Delegate Rick Hillenbrand, R-Hampshire. “I think that this is a reasonable compromise, and I will vote in favor of this.”

Steve Westfall

Delegate Steve Westfall, R-Jackson, agreed.

“If you ever saw sausage made, we made sausage on this bill. We worked it and worked it,” Westfall said. “I think it’s a good compromise. It’s a pretty good deal right now.”

West Virginia’s workers compensation policies were established to cover liability for workplace injuries. But if injured workers can meet a burden of proof that their employers acted with “deliberate intent,” then they may be eligible for court claims beyond what workers comp provides.

Business representatives, particularly from the timber industry, have contended that West Virginia’s current policies mean insurance costs are growing at unsustainable rates, even for responsible employers.

Injured workers, family members and their attorneys have responded with stories of workplace accidents that could have been prevented, saying their ability to earn a living would never be the same. Examples include stories of being crushed by rock falls, traumatic head injuries and limbs lost to accidents with saws.

Over two years, workers and employers have been at a standoff on the issue.

But there could be a change.

“We feel that it is a livable compromise that protects and respects the interests of both sides of this argument,” said attorney J.R. Carter, who represents injured workers.

Last year, the Legislature briefly considered doing away with the possibility of filing deliberate intent claims.

This year, an introduced version of House Bill 3270 would have capped noneconomic damages at $250,000 and eliminated the possibility of filing those claims for cases of occupational pneumoconiosis, lung disease from dust particles in the workplace. And that bill set a limit on fees and costs recoverable by plaintiffs attorneys in the cases.

This morning, the House Judiciary Committee advanced a new version described as a compromise. The bill now goes to the full House of Delegates.

In this case, a revised bill would limit non-economic damages to whichever is higher: two times the economic damages in a case or $500,000 per person. And claims for lung damage in workplace settings aren’t eliminated but have a higher burden of proof applied.

Carter, the plaintiffs attorney who spoke before the House Judiciary Committee today, said the bill seems to be acceptable approach.

He said it “adequately protects the interests of the injured workers and insurers their right to recovery, but does provide some relief and ensure that there will be easier availability or affordability as it relates to an underwriting standpoint to look at the there’s some certainty placed on the value of these claims and we think that will help.”

Brandon Steele

Delegate Brandon Steele, R-Raleigh, told the story of a good friend who died in an accident at a logging site when an inexperienced worker was operating machinery.

“And for that reason, I’ll never vote for this bill. I’ll always honor his memory. I will not hold my nose. I’m never going to forget him and what he went through and every other worker and UBB miner and family that got a call one day that their loved one’s never coming home,” Steele said, referring to the Upper Big Branch Mine Disaster that killed 29 miners in an explosion.

“And it’s due to the intentional reckless conduct — not just reckless, but intentional — conduct of the employer.”

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