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Worker’s compensation law and the exclusivity rule

Readers may or may not be aware that workers’ compensation—a valuable resource for injured workers—comes at a price. What we mean by this is that workers, in exchange for the benefits of the workers’ compensation system, generally give up the ability to sue their employer when they are injured on the job. In other words, workers’ compensation is the exclusive remedy for injured workers, at least in most cases.

One exception to this general rule under state law is when an employer acts with “deliberate intention.” This is a relatively high standard to meet, and state law provides that it may only be met under a couple possible scenarios. Let’s take a quick look at these.

The first scenario is when the injured employee is able to prove that the employer “consciously, subjectively and deliberately” intended to cause injury or death to the employee. In this scenario, negligence, gross negligence, and recklessness do not count. The employer action must be intentional and deliberate.

A second possible scenario is when an employer intentionally exposes a worker to a specific unsafe condition which presents a high degree of risk and which results in a serious compensable injury or compensable death. The unsafe condition, to qualify for the deliberate intent exception, must be a violation of state or federal statute, rule or regulation or a violation of an established safety standard within the industry or business. In presenting evidence of an established safety standard, an injured worker must be able to present evidence of a consensus standard that specifically applies to the unsafe condition at issue.  

In our next post, we’ll take a look at how the law regarding deliberate intent may be changing and how this could impact workers’ compensation claims in West Virginia. 

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