Monthly Archives: March 2009

Workplace Injury Litigation in West Virginia is more than Worker’s Compensation

Although this blog is related primarily to West Virginia auto accident injury cases, I receive a lot of questions and calls about workplace injuries in West Virginia, and I handle these types of cases frequently throughout West Virginia.

Workers in West Virginia should be aware that if they are injured on the job, they may be able to recover more compensation other than just Worker’s Compensation benefits – which due to the recent privatization of Worker’s Comp in West Virginia, are inadequate as ever.

In West Virginia, its possible to file a lawsuit directly against your employer for personal injuries where it can be shown that there existed “deliberate intent” on behalf of the employer at the time of the injury.  Usually employers are immune from direct lawsuits for personal injury, but if the employee can prove the five elements of “deliberate intention,” then they may recover damages directly.

In West Virginia, it must be proven that:

  1. A specific unsafe working condition existed in the workplace which presented a high degree of risk and a strong probability of serious injury or death;
  2. That the employer, prior to the injury, had actual knowledge of the existence of the specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by the specific unsafe working condition;
  3. That the specific unsafe working condition was a violation of a state or federal safety statute, rule or regulation, whether cited or not, or of a commonly accepted and well-known safety standard within the industry or business of the employer, as demonstrated by competent evidence of written standards or guidelines which reflect a consensus safety standard in the industry or business, which statute, rule, regulation or standard was specifically applicable to the particular work and working condition involved, as contrasted with a statute, rule, regulation or standard generally requiring safe workplaces, equipment, or working conditions;
  4. That notwithstanding the existence of the facts set forth in the above 3 requirements, the employer nevertheless intentionally thereafter exposed an employee to the specific unsafe working condition; and
  5. That the employee suffered serious compensable injury or compensable death as defined in the Worker’s Comp statutes, whether a claim for benefits under that statute is filed or not as a direct and proximate result of the specific unsafe working condition

Whether any particular situation meets these five elements may not be easily known to an injured employee.  Thus, it is extremely important to speak with a West Virginia attorney who practices in this area as soon as possible when there has been a workplace injury – especially one that is serious.  In most cases, it is necessary to conduct an investigation of the circumstances surrounding the incident, before the legal basis of a potential “deliberate intent” claim can be evaluated.

Although the five elements in West Virginia seem daunting, there is a wealth of federal safety regulations governing workplace safety.  If it can be easily proven that the employer violated one of these regulations, then many times the case itself can be proven.  I frequently handle these types of cases, and would be happy to speak with you for free about your situation.  You can email me, or give me a call at 1-888-54-JBLAW.

 – John H. Bryan, West Virginia Attorney.