The West Virginia Workers Comp Conference 04/08/08 - Instead of covering most of the major topics, I thought I would cover the Mandolodis decision that has so many of the insurance carriers very concerned about writing new Workers Compensation policies beginning 07/01/08.

In 1978, the West Virginia Supreme Court of Appeals issued a ruling in Mandolidis vs. Elkins Industries Inc. that meant an employee can sue his employer for "deliberate intent" without having to blame a specific person for the injury.

Following the Mandolidis decision, the state began a new insurance program, called the Employers Excess Liability Fund, which allows companies to buy additional coverage to protect them from the added potential liability stemming from the Mandolidis decision. The Legislature turned the opinion into law, which was followed by a "flurry of cases in 1992 and 1993." The statute established a strict, five-part test a plaintiff would have to meet to file a legitimate deliberate intent lawsuit. But the Supreme Court, in its interpretation of the five-part test, watered down those standards significantly.

A 2000 Supreme Court opinion in Roberts vs. Consolidated Coal Co. has made deliberate intent cases even more problematic. The workers' compensation statute removes certain defense strategies a company can use in return for legal protection from lawsuits. The court ruled in Roberts that because deliberate intent lawsuits relate to that statute, the defense limitations apply.

Thus, employers cannot present evidence that criticizes the injured worker. For example, if a worker sues his employer because he believes an injury was the result of faulty equipment, the employer cannot argue the worker used the equipment incorrectly. The employer would be limited to proving that the equipment functioned properly. Mandolidis litigation is a problem because it seems that every serious injury results in a deliberate intent lawsuit being filed.

West Virginia and the Mandolodis Decision Part II