Coal Tattoo

Mine Explosion Anniversary

As West Virginia lawmakers continue to push a variety of measures aimed at weakening worker safety standards and eroding new water quality protections, it’s important to pay attention to some of the things they’re also doing to the state’s legal system — often one of the few places where citizens can go to have their voices heard and wrongs done to them addressed.

Often, the way these issues are being portrayed — as GOP lawmakers and industry lobbyists versus rich plaintiffs’ lawyers — while accurate to a point, doesn’t come close to telling the full story.

Take yesterday’s vote in the House of Delegates in favor of HB2011, a bill  with this fairly confusing name: “Relating to disbursements from the Workers’ Compensation Fund where an injury is self inflicted or intentionally caused by the employer.”

shott_johnThe general take on all of this is, basically:  Workers gave up the right to sue in most cases in exchange for guaranteed compensation for them if they are hurt on the job or their families if they are killed. Wrongful death lawsuits were only to be allowed in the most serious cases, when employers could be shown to have “deliberate intent” to cause on-the-job injuries or deaths. But those crazy courts in West Virginia have repeatedly interpreted this term “deliberate intent” far too liberally. As House Judiciary Chairman John Shott, R-Mercer, said in the Gazette story on yesterday’s House vote:

We are balancing the interest of our people and our business community.  The balance is out of sync. It’s no wonder our children and our grandchildren have to leave the area to get jobs.

Now, never mind that we’ve not seen or heard any data about how many “deliberate intent” cases are filed in West Virginia every year, or how many of those led to judgment against employers, or let alone had any serious discussion so far this session about what the state could do to stop leading the nation in coal-mining deaths and or (despite Gov. Earl Ray Tomblin’s recommendation for a study) the troubling string of deaths in the booming Marcellus Shale gas business.

It’s not like the West Virginia Legislature really feels the need to actually understand an issue, or have good data and expert analysis, to take action, right?

But in most cases, it would probably be helpful if the general public were given more than just a few quotes from each “side” of the debate. It’s helpful to look and see what bills actually say. So let’s do that with this “deliberate intent” bill.

First, a little bit of background, something that’s easy enough to get by just checking out this page from the West Virginia Encyclopedia, which describes the “Mandolidis” case and a bit of the history of workers compensation and deliberate intent in our state:

Mandolidis is a landmark case because it greatly expanded a worker’s right to sue an employer, even if the worker was covered by the workers’ compensation program. In the decision, Justice Darrell V. McGraw Jr. said the court recognized ‘‘a distinction between negligence, including gross negligence, and willful, wanton and reckless misconduct.’’ Such misconduct was interpreted as a deliberate intention on the part of the employer. This intention need not involve an actual desire to injure the worker, but rather an awareness of exposing the worker to a risk entailing a high probability of physical injury. In such cases, damages might be sought beyond the compensation provided by the workers compensation program. Such redress was allowed under the original 1913 workers compensation statute but had been restricted in recent decades under a 1936 court decision.

The president of the state Chamber of Commerce and other business leaders criticized the ruling and asked the legislature to pass a law to lessen its impact. Governor Rockefeller asked the 1982 legislature to consider a change in the law, but the legislature decided to appoint a study commission which made its recommendation in 1983. That year the Mandolidis bill (HB1201) was enacted, modifying the seven-year old decision. The new law softened the impact of the court decision but provided more rights to workers than prior to Mandolidis.

As you can imagine, there’s been tremendous controversy over the years about what this legislation actually means. There have been a lot of court cases, and lawmakers periodically revisit the issue, most frequently at the urging of business lobbyists who would just as well prefer that workers not be able to sue them at all for on-the-job injuries.

Most recently, the folks who put out the “Judicial Hellhole” report, the American Tort Reform Association (their lobbyist this year, by the way, is former Don Blankenship aide Greg Thomas, a Republican activist who helped engineer the GOP takeover of the Legisalture here), had this to say about the issue:

West Virginia courts allow personal injury lawyers to circumvent the no-fault workers’ compensation system and sue an employer for damages. The workers’ compensation system is supposed to provide a tradeoff. Workers get prompt payment for injuries without having to show their employer was at fault, while employers do not have the extent of liability exposure present in a personal injury lawsuit. This system is not functioning properly in West Virginia. The latest example is a West Virginia Supreme Court of Appeals decision in November that expansively interprets an exception to the workers’ compensation system that allows a lawsuit when a company acts with a “deliberate intent” to cause harm. That exception is intended to allow lawsuits if an employer intentionally harms a worker or engages in conduct that it knows is highly likely to result in an injury. But in the recent decision, a divided court found the exception applied to conduct that shows only ordinary, simple negligence or a lack of oversight. As the level-headed Justice Loughry observed in dissent, “The majority’s opinion constitutes . . . yet another step toward its ultimate goal of rendering our deliberate intent statute a meaningless codification of simple workplace negligence standards.” Justice Loughry criticized his colleagues’ judicial activism, observing that “[t]his is quite simply not the type of workplace oversight for which a statutory deliberate intent is designed to provide redress.”

There are actually two ways under current West Virginia law that workers can show their claim over a workplace injury is exempt from the prohibition on lawsuits.

First, workers can try to prove that “The employer or person against whom liability is asserted acted with a consciously, subjectively and deliberately formed intention to produce the specific result of injury or death to an employee.”

Second, workers can try to meet this five-part test:

1. That 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 subparagraphs (A) through (C), inclusive, of this paragraph, the employer nevertheless intentionally thereafter exposed an employee to the specific unsafe working condition; and

5. That the employee exposed suffered serious compensable injury or compensable death as defined in section one, article four, chapter twenty-three whether a claim for benefits under this chapter is filed or not as a direct and proximate result of the specific unsafe working condition.

In the case that the American Tort Reform Association is upset about, justices ruled concerning a suit brought by David McComas, a welder employed by ACF Industries, which operates an industrial plant in Huntington for the construction of railroad cars. McComas sustained severe burns from an arc blast emanating from a 480-volt electrical box. The blast occurred as McComas attempted to turn on the power at his work station for lighting and to operate an electric welding machine.

In its ruling the Court outlined this new point of law for West Virginia’s legal system:

When a safety statute, rule or regulation, or a commonly accepted and well-known safety standard within the industry or business, imposes a specifically identifiable duty to inspect upon the employer, and the inspection would have revealed the specific unsafe working condition, the employer may be found to have had actual knowledge of the specific unsafe working condition within the meaning of this State’s deliberate intent statute.

So, if government rules or commonly accepted industry standards say employers should conduct inspections, and such inspections, if performed, would have revealed unsafe conditions that led to a death, the justices were saying that adds up to an employer being considered to have had “actual knowledge” of those unsafe working conditions, for the purposes of proving deliberate intent.

The court referred back to a previous ruling, in which it explained that employers shouldn’t be able to ignore inspection requirements in order to avoid finding problems that they might then be responsible for correcting:

We simply cannot condone any employer’s attempt to avoid an otherwise viable deliberate intent action by conducting itself like the proverbial ostrich who sticks his head in the sand to avoid seeing the obvious.

In the McComas case, for example, the Supreme Court explained:

McComas offered evidence that ACF was required, under applicable safety standards within the industry, to routinely inspect its 480-volt electrical boxes to ensure that they were in proper working order. His evidence showed that the box resulting in the arc blast was not in proper working order. ACF was unable to show that the 480-volt box had ever been inspected following its installation in the 1950s or early 1960s.

 Now, what exactly is the Legislature doing? Well, the bill that passed the House yesterday on a 59-38 vote seeks to restrict what can be defined as an employer having “actual knowledge” of unsafe working conditions:

Actual knowledge is a direct, conscious and clear awareness, perceived, recognized and understood clearly and with certainty by the employee’s immediate supervisor or any management personnel who have authority to direct and control the workforce or safety in the area or areas where a specific unsafe working condition is alleged to have existed.

It goes on to say:

(1) In every case actual knowledge must specifically be proven by the employee or other person(s) seeking to recover under this section, and shall not be presumed under any circumstances. 

(2) Actual knowledge is not established by constructive knowledge or by proof of what an employee’s immediate supervisor or management personnel should have known had they exercised reasonable care or been more diligent.

(3) Any proof of the immediate supervisor or management personnel’s knowledge of prior accidents, near misses, safety complaints, or citations from regulatory agencies must be proven by documentary or other credible evidence.

Toward the end of the House debate yesterday, Chairman Shott admitted he was more than a little upset at the way opponents of the bill have depicted this. In some ways, he has a small bit of a point. For example, from our Gazette story today:

House Democrats said the legislation was an attack on working West Virginians. Democratic lawmakers referred to the bill as the “Don Blankenship Protection Act,” saying it would give immunity to corporate executives who turn a blind eye to workplace safety hazards. Blankenship, former Massey Energy CEO, faces a raft of federal charges in connection with the 2010 Upper Big Branch mine disaster.

To be clear, this legislation in no way would give “immunity” to Don Blankenship or any other corporate official who is charged by federal authorities with a crime related to workplace violations. But without question, the bill adds to what the families from Upper Big Branch would have  had to show in court to prove a deliberate intent case against Massey Energy. Anyone who bothers to read the bill can see it makes such cases harder for workers or their families to win — there’s no arguing otherwise. That’s the whole point of the bill.