Deliberate intent bill advances to full Senate after committee debates workplace lung claims

The full Senate will consider a bill to limit financial damages in cases where injured workers can prove deliberate intent by employers who cut corners on safety following narrow approval in committee.

After more than an hour of discussion Tuesday, members of the Senate Judiciary Committee voted 10-7 to advance House Bill 3270. 

The House of Delegates very narrowly voted to approve the bill last week, 52-45, after passionate debate about the value of a life in dangerous workplace situations.

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.

The bill that was amended during its consideration by the Legislature 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 would have a higher burden of proof applied.

J.R. Carter

“We were able — instead of fighting like we did all of last session, working on opposite goals — we came together,” attorney J.R. Carter, who represents injured workers, told senators. “We sat down and we tried to find a compromise.

“And we thought that adequately protecting interests of injured workers who were victims of deliberate intent, but still provide some avenue of relief to business and industry — that you have some type of certainty with claims from an underwriting evaluation standpoint, something that might help premiums go down — this compromise bill will help make sure there are no runaway verdicts.”

In Senate Judiciary, much of the debate surrounded standards in the bill for occupational pneumoconiosis cases, or lung disease that has developed from dust in the workplace.

The bill has a threshold that “the employee asserting a cause of action based upon this clause must prove that the employer fraudulently concealed or manipulated dust samples or air quality samples.”

Laura Wakim Chapman

Senator Laura Wakim Chapman, R-Ohio, argued that the standard is too high for workers to prove fraudulent behavior by the employer, and she offered two amendments.

With the first, Chapman moved to strike that entire section. That amendment narrowly failed.

On the second, Chapman, moved to take out the requirement to prove fraudulent intent by the employer, which would still require showing that the employer concealed or manipulated the dust situation. That change was narrowly approved.

“I don’t know how you can seal or manipulate anything without having an intention to do so by adding the word fraudulently, that takes you case into such a high burden of proof that really anybody can get away with anything,” Chapman said.

“If ‘fraudulently’ is included that will make the burden so much higher for these particular cases even though other deliberate intent cases do not require the fraud element.”

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