By Brad McElhinny, WV Metronews
March 10, 2023
With continued questions and pushback, senators passed a bill to limit non-economic damages in cases where injured workers can prove deliberate intent by employers who cut corners on safety.
“Deliberate intent is the worst of the worst cases,” said Senator Laura Wakim Chapman, R-Ohio, arguing against the bill. “This is reckless, criminal, beyond unsafe, against industry standards.”
Two senators spoke against the bill. Senate Judiciary Chairman Charles Trump explained it and urged passage. Nobody argued in favor.
The bill passed 24-8 and returns to the House of Delegates, which will have to decide whether to accept or reject an amendment affecting pneumoconiosis cases.
West Virginia’s workers compensation policies were established to cover liability for workplace injuries. But if injured workers can meet a burden of proof that their employers acted with “deliberate intent,” then they may be eligible for court claims beyond what workers comp provides.
Business representatives, particularly from the timber industry, have contended that West Virginia’s current policies mean insurance costs are growing at unsustainable rates, even for responsible employers.
Injured workers, family members and their attorneys have responded with stories of workplace accidents that could have been prevented, saying their ability to earn a living would never be the same. Examples include stories of being crushed by rock falls, traumatic head injuries and limbs lost to accidents with saws.
The bill that was amended during its consideration by the Legislature would limit non-economic damages to whichever is higher: two times the economic damages in a case or $500,000 per person. And claims for lung damage in workplace settings would have a higher burden of proof applied.
“I don’t know where we come up with a number of $500,000 for a life. That number popped out of the sky,” said Senator Mike Caputo, D-Marion.
An aspect of debate has surrounded standards in the bill for occupational pneumoconiosis cases, or lung disease that has developed from dust in the workplace.
The bill has a threshold that “the employee asserting a cause of action based upon this clause must prove that the employer fraudulently concealed or manipulated dust samples or air quality samples.”
The bill includes occupational pneumoconiosis cases, or lung disease that has developed from dust in the workplace, and it has a threshold that “the employee asserting a cause of action based upon this clause must prove that the employer fraudulently concealed or manipulated dust samples or air quality samples.”
Senator Chapman argued in the Senate Judiciary Committee earlier this week that the standard is too high for workers with occupational lung damage to prove fraudulent behavior by the employer.
Chapman, an attorney, moved to take out the requirement to prove fraudulent intent by the employer, which would still require showing that the employer concealed or manipulated the dust situation. That change was narrowly approved in committee.
During a Thursday evening floor session, the majority in the Senate voted to undo that change.
“I think you conceal something, you’re acting in fraud,” Caputo said in a Friday floor speech.
