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Practice Areas

Workers' Compensation

“Deliberate Intent” Cause of Action

Under our Workers’ Compensation system, an employee cannot sue their employer in Circuit Court for negligence. However, in limited circumstances, a worker who is injured on the job may sue his or her employer in West Virginia circuit court under a theory called “deliberate intent.” A worker has a deliberate intent claim where he can prove the following elements:

  1. A specific unsafe working condition, which presented a high probability of serious injury or death;
  2. The specific unsafe working condition was a violation of a State or Federal safety regulation, or an industry specific established safety protocol;
  3. The employer had actual knowledge of the specific unsafe working condition and attendant high degree of risk;
  4. The employer intentionally exposed the employee to the unsafe condition; and
  5. The employee suffered injury as a result.


With the beginning of the Industrial Revolution and related development of businesses and needed employees, it soon became apparent that a number of injured workers found that they were unable to support themselves or their families as a result of the inability to compete for employment after having sustained a work-related injury. A worker injured on the job was generally required to resort to tort litigation and the need to establish negligence on the part of the employer while, at the same time, trying to overcome defenses such as assumption of risk and contributory negligence. State legislatures determined that this was creating a public problem and concluded that it was in the public interest to place the burden of injuries received at work upon the company who employed the injured worker rather than the placing that burden on society as a whole.

In order to accomplish the above goal, it was necessary to effect a compromise between the employer and the employee, and the only way to achieve this goal was for both the employer and the employee to surrender certain rights available under Common Law. The employer gave up the right to require the employee to show negligence and also gave certain defenses such as assumption of risk and contributory negligence. In return, the employee, having been given the opportunity to avoid the expense, delay, and uncertainty of a lawsuit, gave up the right to seek damages through a jury trial regardless of the existence of negligence on the part of the employer and further agreeing to give up benefits that might be available under a tort action such as pain and suffering and loss of consortium.

In light of the significant amount of benefits currently available to an injured worker and in light of the ever-changing Statutory and Case Law in workers’ compensation, it is imperative that an employer be represented by attorneys specifically knowledgeable in the handling of workers’ compensation claims. The attorney will be able to help the employer determine the compensability of a claim for benefits, including 1) whether the injury arose out of and in the course of employment; 2) whether the injury is the type of injury covered by the Workers’ Compensation Act; 3) whether the injury was timely reported to the employer; and 4) whether the injury claim was filed within the applicable Statute of Limitations.

As mentioned previously, workers’ compensation is a statutory creation enacted to provide an expedited means to provide a worker injured “on-the-job” with both disability and medical benefits while, at the same time, reasonably limiting the amounts of benefits paid by the employer. The process for delivering those benefits has been established both by Statutory and Regulatory Law, and, in most instances, the benefits are delivered voluntarily in a timely manner and the injury is timely resolved to the satisfaction of both the employer and the employee. In those situations where the injury cannot be amicably concluded, an actual process involving the use of an Administrative Law Judge and, if necessary, the Court of Appeals and Supreme Court has been established. As with all areas involving litigation, the use of a knowledgeable attorney involved in the specialized practice of workers’ compensation will serve to make certain that the employer’s interests are protected throughout the process.

Ultimately, the goal of workers’ compensation is to get the injured worker rehabilitated and back on the job, while providing cash assistance that would be otherwise unavailable without lengthy and expensive litigation.s

Although workers’ compensation laws are to be readily available to the injured worker, it is imperative that the injured worker consult with an attorney with special expertise in the area of workers’ compensation law. An attorney can assist the employee in insuring that the benefit rate is properly calculated; that appropriate medical treatment is being provided; and the rights of the injured worker are protected. Counsel will also be invaluable in ensuring that workers’ compensation benefits are coordinated with other available benefit programs. For example, workers’ compensation benefits may be received along with Social Security Disability Insurance benefits; in certain circumstances benefits may be available under the injured worker’s automobile insurance policy; workers’ compensation benefits need to be coordinated with unemployment compensation benefits and various non-workers’ compensation programs that are available through the employer or by law.s

Counsel can also be invaluable in negotiating a compromise of the workers’ compensation claim in the appropriate circumstances. With the assistance of an attorney, the injured worker will be able to obtain all available benefits in an effort to maximize recovery. In this manner, the injured worker and the injured worker’s family will be best protected.

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