A bill that would cap damages in workplace injury lawsuits drew the ire of injured workers but garnered support from business interests Monday during a public hearing at the state Capitol.
West Virginia law permits workers to sue for damages above those paid through workers’ compensation if they can prove their employer acted with deliberate intent in causing the injury.
House Bill 3270, which is in the hands of the House Judiciary Committee, would set the maximum damages for noneconomic loss — commonly referred to as “pain and suffering” damages — at $250,000 for each occurrence, regardless of the number of plaintiffs or the number of defendants or, in the case of wrongful death, regardless of the number of distributions, according to the text of the bill.
The proposed legislation would also set attorney fees in deliberate intention lawsuits at a maximum of 20%. It also would remove pneumoconiosis, a lung disease caused by dust particles, as a covered occupational injury.
During Monday’s hearing in the House Chamber, speakers were given two minutes during the one-hour session, while those in recent hearings were only given one minute.
Supporters of the bill contend it would balance workers’ compensation payouts by helping protect smaller businesses from large payouts and mitigating the cost of increasing insurance premiums. Phyllis Cole spoke in favor of the bill, representing Allegheny Wood Products, a West Virginia company that employs 865 people. Cole said the proposed bill would still give workers legal recourse, and would reduce the amount of money taken as fees by attorneys.
“What you’re hearing from the opponents today are some of the doom-and-gloom arguments they always make, but it never turns out that way. Instead, this bill does just the opposite. Employees are protected,” Cole said.
Chad Francis is a United Mine Workers Association representative and third-generation coal miner. He said the bill makes companies less liable by placing a $250,000 cap on a worker’s life.
“That is not much when a widow may have a few children and a mortgage to deal with after losing the breadwinner of their home,” Francis said.
Speaking against the bill, attorney Dave Duffield of the firm Duffield, Lovejoy, and Boggs, in Huntington, discussed the case of Melissa May, who was injured on the job while working with a wood lathe.
As she bent down, May’s hair got tangled in the machine, which was spinning at hundreds of rpms. Her coworkers hit two safety switches, but both had been disconnected due to a recent fire, Duffield said.
“It slowly sucked the top of her head off. Her ears, her scalp,” Duffield said.
May’s injuries required skin grafts from cadavers, as well as from other parts of her own body, Duffield said. Like many who endure a horrific injury, May’s mental health suffered and she became addicted to the drugs she was prescribed.
Duffield and other opponents of the bill argue that $250,000 doesn’t begin to cover such hardships.
Robert Hyde said he was injured nine years ago in a workplace accident that resulted in the amputation of his left leg below the knee.
“Having the ability to hold my employer accountable for the financial and psychological impacts of my injury helped me and my family to move forward with our lives,” Hyde said. “Every morning, I have to put my prosthetic on. Every night, I have to take it off. It’s a constant reminder of what happened to me.”
Hyde said his injury continues to affect his life.
“My wife still has trouble talking about my injury. I have a 2-year-old daughter. Sometimes, I wonder how I will be able to play sports and keep up with her as she continues to grow. I have to continually learn how to adapt to complete normal activities without hurting myself or damaging my prosthetic,” he said.
Hyde said it is dangerous to remove the ability for workers to hold companies accountable when they create dangerous working environments.
“There’s no amount of money worth going through what me and my family have been through, but telling me my leg is only worth $250,000 is disheartening,” Hyde said. “Putting a cap on the amount of money that will have a direct impact on making injured people’s lives a little easier is only going to benefit employers’ profits and not provide any accountability for a dangerous workplace.”
Speaking against the bill, Logan County resident Shelly Rosser said her husband was killed in a mining accident. A a previous incident in the same spot should have sounded alarms over ongoing safety violations, she said. Now without a partner, she must raise her children, all of whom have mental health problems over the loss of their father. Even seeing other miners with coal ash on their face around town can be a trigger, she said.
“The company was supposed to fix that spot by putting up some reflective tape, some lights. You know, a simple fix. The company didn’t do it,” she said. “Three years later, my husband was trying to exit the mine, hit his head, and my kids no longer have a father. I lost my husband of 20 years.
“I mean, it’s just something as simple as that, and then you want to say that the company shouldn’t be liable for something that they’re responsible for? $250,000 to take care of five of us?”
