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Work with experienced attorney on “deliberate intent” claims

In our previous post, we began speaking about a bill currently under consideration in the West Virginia House of Representatives which would clarify the requirements for injured workers to bring a civil claim against their employer, outside the workers’ compensation system.

As we noted, the proposal specifies that a five-part test must be satisfied before an injured workers’ claim could be allowed to proceed. Here we want to briefly look at that test and highlight the importance of working with an attorney so that the legal hurdles to proceeding with a “deliberate intent” can be successfully cleared. 

The easiest requirement to demonstrate under the bill would be that the employee must have been injured or killed on the job. Not just any injury or death qualifies, though, but only those which result from a specific, unsafe working condition which constitutes a violation of federal or state law or regulation. The unsafe working condition could also be a violation of established industry safety standards, though these standards must be established in writing.

In addition to the specifics about the type of unsafe working condition, there is also an element of knowledge that must be met. The employer—at least through its management—must have had knowledge of the unsafe condition and its risks to employees, and still have chosen to expose workers to the unsafe condition. The two big hurdles to clear in demonstrating deliberate intent under the bill, then, would be demonstrating that the unsafe condition is a qualifying condition and that the employer had knowledge of the condition.

Suffice it to say, the five-part test would likely not be easy for an injured worker to satisfy. That, together with the requirement that the injury be serious—meaning that it caused at least 13 percent permanent, partial disability—make it imperative that employees who have a strong deliberate intent case work with an experienced attorney. Doing so ensures that their case receives the advocacy it deserves. 

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