West Virginia: Deliberate Intent Suit Against Employer Fails

In a memorandum decision, the Supreme Court of Appeals of West Virginia held that a state trial court appropriately dismissed a deliberate intent suit filed by the personal representative of a deceased worker against the former employer where the representative contended that the worker’s death as a result of lung cancer was caused by exposure to Hexavalent Chromium, a carcinogen. The employer acknowledged that the deceased worker spent 45 to 60 minutes per shift polishing, sanding, and/or grinding carbon steel bars in order to bring them within the customer’s desired specifications. The employer further acknowledged that the worker’s activity created some levels of airborne chromium, but offered evidence that the grinding and polishing activity created no Hexavalent Chromium. Other evidence indicated that while Hexavalent Chromium was cancer producing, ordinary chromium was not. Other evidence indicated that the worker was a regular smoker. Even plaintiff’s medical expert admitted that cigarette smoking often caused the type of lung cancer the deceased suffered. Substantial evidence, therefore, supported the trial court’s finding that the conditions of employment did not create, release, or produce Hexavalent Chromium and that even assuming arguendo that such conditions did exist, the plaintiff had presented no evidence that the amount of Hexavalent Chromium to which the worker was allegedly exposed was large enough to be unsafe.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.

See Leffingwell v. SWVA, Inc., 2015 W. Va. LEXIS 1007 (Oct. 16, 2015) [2015 W. Va. LEXIS 1007 (Oct. 16, 2015)]

See generally Larson’s Workers’ Compensation Law, § 103.04 [103.04]

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.

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