WEST VIRGINIA LEGISLATURE
2024 REGULAR SESSION
Introduced House Bill 5554
By Delegates E. Pritt, Vance, Bridges, Dean, Holstein,
Adkins, Brooks, Garcia, Fluharty, Worrell, and Young [Introduced February 09, 2024; Referred to the Committee on the Judiciary]
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1 A BILL to amend and reenact §23-4-2 of the Code of West Virginia, 1931, as amended, relating to
2 establishing payment guidelines for pulmonary massive fibroids without current pulmonary
3 impairment in order to care for those who face future impairment that would otherwise fall
4 outside of the timeframe for filing a complaint.
Be it enacted by the Legislature of West Virginia:
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-2. Disbursement where injury is self-inflicted or intentionally caused by employer;
legislative declarations and findings; "deliberate intention" defined.
1 (a) Notwithstanding anything contained in this chapter, no employee or dependent of any
2 employee is entitled to receive any sum under the provisions of this chapter on account of any
3 personal injury to or death to any employee caused by a self-inflicted injury or the intoxication of
4 the employee. Upon the occurrence of an injury which the employee asserts, or which reasonably
5 appears to have, occurred in the course of and resulting from the employee's employment, the
6 employer may require the employee to undergo a blood test for the purpose of determining the
7 existence or nonexistence of evidence of intoxication: Provided, That the employer must have a
8 reasonable and good faith objective suspicion of the employee's intoxication and may only test for
9 the purpose of determining whether the person is intoxicated. If any blood test for intoxication is
10 given following an accident, at the request of the employer or otherwise, and if any of the following
11 are true, the employee is deemed intoxicated and the intoxication is the proximate cause of the
12 injury:
13 (1) If a blood test is administered within two hours of the accident and evidence that there
14 was, at that time, more than five hundredths of one percent, by weight, of alcohol in the employee's
15 blood; or
16 (2) If there was, at the time of the blood test, evidence of either on or off the job use of a
17 nonprescribed controlled substance as defined in the West Virginia Uniform Controlled
18 Substances Act, West Virginia Code §60A-2-201, et seq., Schedules I, II, III, IV and V.
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19 (b) For the purpose of this chapter, the commission may cooperate with the Office of
20 Miners' Health, Safety and Training and the State Division of Labor in promoting general safety
21 programs and in formulating rules to govern hazardous employments.
22 (c) If injury results to any employee from the deliberate intention of his or her employer to
23 produce the injury or death, the employee, or, if the employee has been found to be incompetent,
24 his or her conservator or guardian, may recover under this chapter and bring a cause of action
25 against the employer, as if this chapter had not been enacted, for any excess of damages over the
26 amount received or receivable in a claim for benefits under this chapter. If death results to any
27 employee from the deliberate intention of his or her employer to produce the injury or death, the
28 representative of the estate may recover under this chapter and bring a cause of action, pursuant
29 to section six, article seven of chapter fifty-five of this code, against the employer, as if this chapter
30 had not been enacted, for any excess of damages over the amount received or receivable in a
31 claim for benefits under this chapter. To recover under this section, the employee, the employee's
32 representative or dependent, as defined under this chapter, must, unless good cause is shown,
33 have filed a claim for benefits under this chapter.
34 (d)(1) It is declared that enactment of this chapter and the establishment of the workers'
35 compensation system in this chapter was and is intended to remove from the common law tort
36 system all disputes between or among employers and employees regarding the compensation to
37 be received for injury or death to an employee except as expressly provided in this chapter and to
38 establish a system which compensates even though the injury or death of an employee may be
39 caused by his or her own fault or the fault of a co-employee; that the immunity established in
40 sections six and six-a, article two of this chapter is an essential aspect of this workers'
41 compensation system; that the intent of the Legislature in providing immunity from common
42 lawsuit was and is to protect those immunized from litigation outside the workers' compensation
43 system except as expressly provided in this chapter; that, in enacting the immunity provisions of
44 this chapter, the Legislature intended to create a legislative standard for loss of that immunity of
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45 more narrow application and containing more specific mandatory elements than the common law
46 tort system concept and standard of willful, wanton and reckless misconduct; and that it was and is
47 the legislative intent to promote prompt judicial resolution of the question of whether a suit
48 prosecuted under the asserted authority of this section is or is not prohibited by the immunity
49 granted under this chapter.
50 (2) The immunity from suit provided under this section and under sections six and six-a,
51 article two of this chapter may be lost only if the employer or person against whom liability is
52 asserted acted with "deliberate intention". This requirement may be satisfied only if:
53 (A) It is proved that the employer or person against whom liability is asserted acted with a
54 consciously, subjectively and deliberately formed intention to produce the specific result of injury
55 or death to an employee. This standard requires a showing of an actual, specific intent and may
56 not be satisfied by allegation or proof of: (i) Conduct which produces a result that was not
57 specifically intended; (ii) conduct which constitutes negligence, no matter how gross or
58 aggravated; or (iii) willful, wanton or reckless misconduct; or
59 (B) The trier of fact determines, either through specific findings of fact made by the court in
60 a trial without a jury, or through special interrogatories to the jury in a jury trial, that all of the
61 following facts are proven:
62 (i) That a specific unsafe working condition existed in the workplace which presented a
63 high degree of risk and a strong probability of serious injury or death;
64 (ii) That the employer, prior to the injury, had actual knowledge of the existence of the
65 specific unsafe working condition and of the high degree of risk and the strong probability of
66 serious injury or death presented by the specific unsafe working condition.
67 (I) In every case actual knowledge must specifically be proven by the employee or other
68 person(s) seeking to recover under this section, and shall not be deemed or presumed: Provided,
69 That actual knowledge may be shown by evidence of intentional and deliberate failure to conduct
70 an inspection, audit or assessment required by state or federal statute or regulation and such
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71 inspection, audit or assessment is specifically intended to identify each alleged specific unsafe
72 working condition.
73 (II) Actual knowledge is not established by proof of what an employee's immediate
74 supervisor or management personnel should have known had they exercised reasonable care or
75 been more diligent.
76 (III) Any proof of the immediate supervisor or management personnel's knowledge of prior
77 accidents, near misses, safety complaints or citations from regulatory agencies must be proven by
78 documentary or other credible evidence.
79 (iii) That the specific unsafe working condition was a violation of a state or federal safety
80 statute, rule or regulation, whether cited or not, or of a commonly accepted and well-known safety
81 standard within the industry or business of the employer.
82 (I) If the specific unsafe working condition relates to a violation of a commonly accepted
83 and well-known safety standard within the industry or business of the employer, that safety
84 standard must be a consensus written rule or standard promulgated by the industry or business of
85 the employer, such as an organization comprised of industry members: Provided, That the
86 National Fire Protection Association Codes and Standards or any other industry standards for
87 Volunteer Fire Departments shall not be cited as an industry standard for Volunteer Fire
88 Departments, Municipal Fire Departments and Emergency Medical Response Personnel as an
89 unsafe working condition as long as the Volunteer Fire Departments, Municipal Fire Departments
90 and the Emergency Medical Response Personnel have followed the Rules that have been
91 promulgated by the Fire Commission.
92 (II) If the specific unsafe working condition relates to a violation of a state or federal safety
93 statute, rule or regulation that statute, rule or regulation:
94 (a) Must be specifically applicable to the work and working condition involved as
95 contrasted with a statute, rule, regulation or standard generally requiring safe workplaces,
96 equipment or working conditions;
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97 (b) Must be intended to address the specific hazard(s) presented by the alleged specific
98 unsafe working condition; and,
99 (c) The applicability of any such state or federal safety statute, rule or regulation is a matter
100 of law for judicial determination.
101 (iv) That notwithstanding the existence of the facts set forth in subparagraphs (i) through
102 (iii), inclusive, of this paragraph, the person or persons alleged to have actual knowledge under
103 subparagraph (ii) nevertheless intentionally thereafter exposed an employee to the specific unsafe
104 working condition; and
105 (v) That the employee exposed suffered serious compensable injury or compensable
106 death as defined in section one, article four, chapter twenty-three as a direct and proximate result
107 of the specific unsafe working condition. For the purposes of this section, serious compensable
108 injury may only be established by one of the following four methods:
109 (I) It is shown that the injury, independent of any preexisting impairment:
110 (a) Results in a permanent physical or combination of physical and psychological injury
111 rated at a total whole person impairment level of at least thirteen percent (13%) as a final award in
112 the employees workers' compensation claim; and
113 (b) Is a personal injury which causes permanent serious disfigurement, causes permanent
114 loss or significant impairment of function of any bodily organ or system, or results in objectively
115 verifiable bilateral or multi-level dermatomal radiculopathy; and is not a physical injury that has no
116 objective medical evidence to support a diagnosis; or
117 (II) Written certification by a licensed physician that the employee is suffering from an injury
118 or condition that is caused by the alleged unsafe working condition and is likely to result in death
119 within eighteen (18) months or less from the date of the filing of the complaint. The certifying
120 physician must be engaged or qualified in a medical field in which the employee has been treated,
121 or have training and/or experience in diagnosing or treating injuries or conditions similar to those of
122 the employee and must disclose all evidence upon which the written certification is based,
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123 including, but not limited to, all radiographic, pathologic or other diagnostic test results that were
124 reviewed.
125 (III) If the employee suffers from an injury for which no impairment rating may be
126 determined pursuant to the rule or regulation then in effect which governs impairment evaluations
127 pursuant to this chapter, serious compensable injury may be established if the injury meets the
128 definition in subclause (I)(b).
129 (IV) If the employee suffers from an occupational pneumoconiosis, the employee must
130 submit written certification by a board certified pulmonologist that the employee is suffering from
131 complicated pneumoconiosis or pulmonary massive fibrosis with current pulmonary impairment
132 and that the occupational pneumoconiosis has resulted in pulmonary impairment as measured by
133 the standards or methods utilized by the West Virginia Occupational Pneumoconiosis Board of at
134 least fifteen percent (15%) as confirmed by valid and reproducible ventilatory testing. The
135 certifying pulmonologist must disclose all evidence upon which the written certification is based,
136 including, but not limited to, all radiographic, pathologic or other diagnostic test results that were
137 reviewed: Provided, That any cause of action based upon this clause must be filed within one year
138 of the date the employee meets the requirements of the same: Provided further, That the
139 employee asserting a cause of action based upon this clause must prove that the employer
140 fraudulently concealed or manipulated dust samples or air quality samples.
141 (V) If the employee suffers from pulmonary massive fibrosis without pulmonary
142 impairment, the employee must submit written certification by a board certified pulmonologist that
143 the employee is suffering from complicated pneumoconiosis or pulmonary massive fibrosis
144 without current pulmonary impairment. The certifying pulmonologist must disclose all evidence
145 upon which the written certification is based, including, but not limited to, all radiographic,
146 pathologic or other diagnostic test results that were reviewed: Provided, That any cause of action
147 based upon this clause must be filed within one year of the date the employee meets the
148 requirements of the same: Provided, however, That the employee asserting a cause of action
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149 based upon this clause must prove that the employer fraudulently concealed or manipulated dust
150 samples or air quality samples. The claimant with pulmonary massive fibrosis with no current
151 pulmonary impairment shall be awarded according to the following guidelines: Category A shall
152 receive 10%, Category B shall receive 20%, and Category C shall receive 30%.
153 (C) In cases alleging liability under the provisions of paragraph (B) of this subdivision:
154 (i) The employee, the employee's guardian or conservator, or the representative of the
155 employee's estate shall serve with the complaint a verified statement from a person with
156 knowledge and expertise of the workplace safety statutes, rules, regulations and consensus
157 industry safety standards specifically applicable to the industry and workplace involved in the
158 employee's injury, setting forth opinions and information on:
159 (I) The person's knowledge and expertise of the applicable workplace safety statutes,
160 rules, regulations and/or written consensus industry safety standards;
161 (II) The specific unsafe working condition(s) that were the cause of the injury that is the
162 basis of the complaint; and
163 (III) The specific statutes, rules, regulations or written consensus industry safety standards
164 violated by the employer that are directly related to the specific unsafe working conditions:
165 Provided, however, That this verified statement shall not be admissible at the trial of the action and
166 the Court, pursuant to the Rules of Evidence, common law and subclause two-c, subparagraph
167 (iii), paragraph (B), subdivision (2), subsection (d), section two, article four, chapter twenty-three of
168 this code, retains responsibility to determine and interpret the applicable law and admissibility of
169 expert opinions.
170 (ii) No punitive or exemplary damages shall be awarded to the employee or other plaintiff;
171 (iii) Notwithstanding any other provision of law or rule to the contrary, and consistent with
172 the legislative findings of intent to promote prompt judicial resolution of issues of immunity from
173 litigation under this chapter, the employer may request and the court shall give due consideration
174 to the bifurcation of discovery in any action brought under the provisions of subparagraphs (i)
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175 through (v), of paragraph (B) such that the discovery related to liability issues be completed before
176 discovery related to damage issues. The court shall dismiss the action upon motion for summary
177 judgment if it finds pursuant to rule 56 of the rules of civil procedure that one or more of the facts
178 required to be proved by the provisions of subparagraphs (i) through (v), inclusive, paragraph (B)
179 of this subdivision do not exist, and the court shall dismiss the action upon a timely motion for a
180 directed verdict against the plaintiff if after considering all the evidence and every inference
181 legitimately and reas