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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

FILED September 2013 Term 

__________ November 6, 2013 

released at 3:00 p.m. 

RORY L. PERRY II, CLERK No. 12-1206 SUPREME COURT OF APPEALS 

__________ OF WEST VIRGINIA 

MASTER MECHANICAL INSULATION, INC.,
 

Defendant Below, Petitioner
 

v. 

RICHARD SIMMONS,
 

Plaintiff Below, Respondent
 

Appeal from the Circuit Court of Cabell County
 

Honorable F. Jane Hustead, Judge
 

Civil Action No. 06-C-0133
 

CERTIFIED QUESTIONS ANSWERED
 

Submitted: October 1, 2013
 

Filed: November 6, 2013
 

Robert H. Sweeeney, Jr., Esq. J. Michael Ranson, Esq. 

Nathanial A. Kuratomi, Esq. George Morrone III, Esq. 

Jenkins Fenstermaker PLLC Ranson Law Offices 

Huntington, West Virginia Charleston, West Virginia 

Counsel for Petitioner 

G. Patrick Jacobs, Esq. 

Jacobs Law Offices 

Charleston, West Virginia 

Counsel for Respondent 

JUSTICE LOUGHRY delivered the Opinion of the Court.
 

CHIEF JUSTICE BENJAMIN concurs, in part, and dissents, in part, and reserves the
 

right to file a separate opinion.
 

JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.
 
 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT 

1. “The appellate standard of review of questions of law answered and 

certified by a circuit court is de novo.” Syl. Pt. 1, Gallapoo v. Wal-Mart Stores, Inc., 197 

W.Va. 172, 475 S.E.2d 172 (1996). 

2. The language set forth in West Virginia Code § 23-4-2(f) (2005), which 

addresses the implementation of statutory amendments enacted to West Virginia Code § 23­

4-2 during the 2005 session of the Legislature, pertains to “deliberate intent” cases in which 

the injuries occurred after July 1, 2005, and also to actions that are filed on or after July 1, 

2005. 

3. “When an employee asserts a deliberate intention cause of action against 

his/her employer, pursuant to W.Va. Code §§ 23-4-2(b)-(c) (1991) (Cum. Supp. 1991), the 

employer may not assert the employee’s contributory negligence as a defense to such 

action.” Syl. Pt. 8, Roberts v. Consolidation Coal Co., 208 W.Va. 218, 539 S.E.2d 478 

(2000). 

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4. An employer in a “deliberate intent” action brought pursuant to West 

Virginia Code § 23-4-2(d)(2)(ii) (2010) may introduce evidence that is relevant to the issues 

of whether an employee’s conduct created a specific unsafe working condition; whether the 

employer had actual knowledge of that alleged specific unsafe working condition; and 

whether the injuries at issue were the proximate result of that specific unsafe working 

condition. 

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LOUGHRY, Justice: 

By order entered on October 16, 2012, the Circuit Court of Cabell County 

certified three questions to this Court that pertain to the filing of a statutory claim asserting 

deliberate intention1 by the respondent Richard Simmons. The first question involves an 

issue of statutoryinterpretation; the second queryseeks clarification regarding the evidentiary 

effect of Roberts v. Consolidation Coal Co.,2 and the third inquiry pertains to the evidentiary 

effect of a ruling that Mr. Simmons is eligible for workers’ compensation benefits. We will 

answer each of the certified questions in turn. 

I. Factual and Procedural Background 

The facts of this case, taken from the trial court’s order, are largely undisputed. 

Mr. Simmons was injured on April 9, 2004, in Portsmouth, Ohio, while engaged in certain 

activities at an apartment complex that was being demolished by the petitioner Master 

Mechanical Insulation, Inc. (“Master Mechanical”). Master Mechanical had a contract to 

perform asbestos abatement activities at the site. As a member of the Asbestos Worker’s 

Union Local 207, Mr. Simmons was employed periodically by Master Mechanical. Prior to 

the date of the injury at issue, Mr. Simmons had last worked at this site on April 6, 2004. 

1

See W.Va. Code § 23-4-2(d)(2)(ii) (2010).
 

2

208 W.Va. 218, 539 S.E.2d 478 (2000).
 

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On Thursday, April 8, 2004, after having completed a forty-hour work week, 

Mike Plants,3 a supervisor for Master Mechanical, telephoned the chief supervisor, Richard 

Meckstroth, to discuss additional work in need of completion that week. During that 

conversation, Mr. Plants told Mr. Meckstroth that since two workers4 were being sent to 

Portsmouth the next day to prepare for the following week’s work, he would travel to the site 

to confirm that everything was in order.5 When the telephone conversation ended, Mr. 

Simmons asked Mr. Plants if he could ride with him to the Portsmouth job site. 

After Mr. Simmons and Mr. Plants arrived at the job site on Friday, April 9, 

2004, Mr. Simmons helped unload supplies. Neither Mr. Simmons nor Mr. Plants were paid 

for any work they performed at the Portsmouth job site on that date.6 The two Master 

Mechanical employees who were assigned to work at the Portsmouth job site on April 9, 

2004, were Joe Plants and Eddie Borden. At some point, Mike Plants had a discussion with 

Joe Plants, Eddie Borden, and Richard Simmons. Mike Plants told Joe Plants to remove a 

decontamination unit that was in Building B of the work site and relocate it in Building C. 

3

Mr. Plants is also a member of the Asbestos Worker’s Union; he is paid by the hour 

and is owed overtime when appropriate. 

4

Joe Plants and Eddie Borden. 

5

On occasion, Mr. Plants performed work-related activities without remuneration for 

Master Mechanical. 

6

According to the trial court’s findings of fact, Joe Plants and Mike Plants 

occasionally performed work-related activities for Master Mechanical without pay. 

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After Mike Plants instructed Joe Plants to retrieve the decontamination unit 

located in Building B, Mr. Simmons accompanied Joe Plants to Building B. The unit was 

located on the second floor balcony, which was in excess of ten feet off the ground. The 

railings on the balcony had been removed for purposes of the work at issue. Mr. Simmons 

went to the second floor of the building to remove the decontamination unit while Mr. Plants 

remained on the ground level. The plan was for Mr. Simmons to push the unit over the edge 

of the second floor.7 In the process of pushing the unit, Mr. Simmons fell off the edge of the 

balcony and suffered injuries as a result of the fall. 

Mr. Simmons filed a workers’ compensation claim for his injuries and the 

claim was denied. The denial of benefits was upheld by the Office of Judges and the Board 

of Review. On September 19, 2008, this Court found that the injuries sustained by Mr. 

Simmons were compensable under the West Virginia Workers’ Compensation Act. Upon 

this finding of compensability, Mr. Simmons amended his previously-filed negligence action 

and asserted a deliberate intent claim against Master Mechanical.8 

By order entered on October 16, 2012, the circuit court certified the following 

questions: 

7

The unit was situated at least ten feet from the edge of the balcony.
 

8

Mr. Simmons dismissed his negligence count.
 

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1. Is Simmons’ claim against Master Mechanical governed by 

the 2005 amendment to the deliberate intent statute, W.Va. Code 

§ 23-4-2(d)(2)(ii), pursuant to Roney v. Gencorp, 431 F.Supp.2d 

622 (S.D. W.Va. 2006) and Corley v. Eastern Assoc. Coal 

Corp., 2009 U.S. Dist. LEXIS 22080 (N.D. W.Va. 2009)? 

Circuit Court’s Answer: Yes. 

2. In light of the Supreme Court of Appeals’ decision in 

Roberts v. Consolidation Coal Co., 539 S.E.2d 478 (W.Va. 

2000) and the facts as set forth above, is an employer prohibited 

from introducing evidence or testimony, or arguing that an 

employee’s conduct in the performance of the work for the 

employer was the proximate cause of the plaintiff’s injury? 

Circuit Court’s Answer: Yes. 

3. In light of the Supreme Court’s ruling of September 19, 2008 

that Simmons’ injury was compensable under the West Virginia 

Worker’s Compensation Act, is Master Mechanical precluded 

from arguing that Simmons was at the site of his own volition, 

and voluntarily agreed to remove the decontamination unit from 

the second floor of Building B? 

Circuit Court’s Answer: Yes. 

II. Standard of Review 

That our review is plenary is well-established. See State v. Bostic, 229 W.Va. 

513, 518, 729 S.E.2d 835, 840 (2012). In syllabus point one of Gallapoo v. Wal-Mart 

Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996), we held: “The appellate standard of 

review of questions of law answered and certified by a circuit court is de novo.” We proceed 

to determine whether the circuit court committed error by answering each of the certified 

questions in the affirmative. 

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III. Discussion 

A. Applicability of 2005 Amendments 

During the 2005 West Virginia legislative session, certain amendments were 

enacted to the “deliberate intent” statute. See 2005 W.Va. Acts, ch. 248 (eff. July 1, 2005). 

Included in the statutory changes was language by which the requisite showing of an 

employer’s “subjective realization” of an unsafe working condition was altered to require 

evidence of the employer’s “actual knowledge” of an alleged unsafe working condition. See 

W.Va. Code § 23-4-2(d)(2)(ii)(B) (2005). The Legislature expressly provided that the 2005 

amendments applied to “all injuries occurring and all actions filed on or after the first day of 

July, Two Thousand Five.” Id. at § 23-4-2(f). Seeking to come within the pre-2005 

amendment standards, Mr. Simmons argues that the Legislature intended that the new 

language would be applied prospectively and only to those cases where both the injury and 

the filing of the civil action occur after July 1, 2005. 

In support of his position, Mr. Simmons suggests that the use of the term “and” 

indicates that the two specified occurrences–“injuries occurring” and “actions filed”–must 

coexist to invoke the provisions of the amended statute. W.Va. Code § 23-4-2(f). As the 

injury at issue occurred prior to July 1, 2005, Mr. Simmons argues that the 2005 amendments 

are not applicable to his case. Relying on the statutory maxim that every word chosen must 

be accorded specific meaning, he maintains that the circuit court erred in deciding that either 

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the injury or the filing of the action could independently trigger the application of the 2005 

amendments. See State ex rel. City of Huntington v. Lombardo, 149 W.Va. 671, 698, 143 

S.E.2d 535, 551 (1965) (“A cardinal rule of statutory construction is that significance and 

effect must, if possible, be given to every section, clause, word or part of a statute.”). 

To illustrate his point, Mr. Simmons refers to a decision of this Court in which 

we addressed the significance of the inclusion of the term “and” within another workers’ 

compensation statute. In Emmel v. State Compensation Director, 150 W.Va. 277, 145 S.E.2d 

29 (1965), we discussed the burden imposed on a workers’ compensation claimant to prove 

that he/she sustained an injury both in the course of and resulting from his/her employment. 

As the Court explained, “[t]he two phrases, ‘in the course of’ and ‘resulting from’ are not 

synonymous and both elements must concur in order to make a claim compensable.” Id. at 

281, 145 S.E.2d at 32. Given the unmistakable emphasis in Emmel on the conjunctive nature 

of the term “and,” Mr. Simmons posits that the statutory language at issue in this case should 

be similarly applied in the conjunctive rather than the disjunctive. 

In response, Master Mechanical maintains that the conjunctive meaning of 

“and” is met by virtue of the fact the 2005 amendments apply to two separate events: (1) 

injuries that occur after July 1, 2005, and (2) claims that are filed after July 1, 2005, 

regardless of when the injury occurred. Rather than reading the statutory language in a 

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precedent condition fashion as suggested by Mr. Simmons, the statute need only be read as 

pertaining to both situations specified above. That this interpretation is logical is easily 

demonstrated. 

Given that the effective date of the statutory amendments at issue is the same 

date chosen by the Legislature to implement the changes, it is logical to assume that the 

Legislature sought to apply the new provisions to all “deliberate intent” actions where the 

injuries occurred post July 1, 2005, as well as those actions that were filed on that date or 

later but involved injuries which occurred pre-amendment. In this fashion, the Legislature 

brought every deliberate intent action that was filed after July 1, 2005, under the new law. 

Mr. Simmons’ argument that the conjunctive “and” requires that both events must take place 

post July 1, 2005, fails because there is no common word or phrase to which both events 

relate. In illustration, the term employment in the phrase “both in the course of and resulting 

from his employment” at issue in Emmel clearly pertained to both parts of the clause. In this 

case, however, the use of the term “and” is used only in the sense of providing an additional 

factual scenario that may invoke the amended statutory language rather than identifying a 

necessary element required to establish a statutory claim. This distinction is critical. 

Upon a reasoned consideration of the position advanced by Mr. Simmons, we 

wholly reject his contention that the Legislature intended for its 2005 amendments to affect 

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only those cases in which both the injury and the filing of the action occurred after July 1, 

2005. Accordingly, we hold that the language set forth in West Virginia Code § 23-4-2(f) 

(2005), which addresses the implementation of statutory amendments enacted to West 

Virginia Code § 23-4-2 during the 2005 session of the Legislature, pertains to “deliberate 

intent” cases in which the injuries occurred after July 1, 2005, and also to actions that are 

filed on or after July 1, 2005. Our decision on this issue is in accord with the circuit court’s 

affirmative response to the first certified question.9 

B. Relevance of Employee’s Conduct 

Mr. Simmons seeks to prevent Master Mechanical from introducing any 

evidence at trial with regard to his conduct at the Portsmouth job site on the date of his 

injury. As support for his position, he looks to this Court’s holding in syllabus point eight 

of Roberts v. Consolidation Coal Co., 208 W.Va. 218, 539 S.E.2d 478 (2000), that “[w]hen 

an employee asserts a deliberate intention cause of action against his/her employer, pursuant 

to W.Va. Code §§ 23-4-2(b)-(c) (1991) (Cum. Supp. 1991), the employer may not assert the 

employee’s contributory negligence as a defense to such action.” Based solely on this point 

of law, Mr. Simmons argues that his conduct has no probative value with regard to the five 

9

Two federal courts in this state have interpreted the statutory provision at issue 

consistent with the decision we reach in this case. See Corley v. Eastern Ass’d Coal Corp., 

2009 WL 723120 (N.D. W.Va. 2009); Roney v. Gencorp., 431 F.Supp.2d 622 (S.D. W.Va. 

2006). 

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statutory elements necessary to prove a “deliberate intent” action. See W.Va. Code § 23-4­

2(d)(2)(ii). 

We revisited the statutory origins of our workers’ compensation system in 

Roberts, observing that “the right to workmen’s compensation benefits is based wholly on 

statutes, [and] in no sense based on the common law.” 208 W.Va. at 234, 539 S.E.2d at 494 

(quoting Bounds v. State Workmen’s Comp. Comm’r, 153 W.Va. 670, 672, 172 S.E.2d 379, 

383 (1970)). Within the statute that creates a “deliberate intent” action is the following 

statement of legislative intent concerning the demarcation between common law and our 

workers’ compensation laws: 

It is declared that enactment of this chapter and the 

establishment of the workers’ compensation system in this 

chapter was and is intended to remove from the common law 

tort system all disputes between or among employers and 

employees regarding the compensation to be received for injury 

or death to an employee except as expressly provided in this 

chapter and to establish a system which compensates even 

though the injury or death of an employee may be caused by his 

or her own fault or the fault of a coemployee; that the immunity 

established in sections six [§ 23-3-6] and six-a [§ 23-3-6a], 

article two of this chapter is an essential aspect of this workers’ 

compensation system; that the intent of the Legislature in 

providing immunity from common lawsuit was and is to protect 

those immunized from litigation outside the workers’ 

compensation system except as expressly provided in this 

chapter; that, in enacting the immunity provision of this chapter, 

the Legislature intended to create a legislative standard for loss 

of that immunity of more narrow application and containing 

more specific mandatory elements than the common law tort 

system concept. . . . 

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W.Va. Code § 23-4-2(d)(1) (emphasis supplied). 

In considering whether the affirmative defense of contributory negligence 

could be asserted in Roberts, we recognized that there are only two legislated defenses to a 

workers’ compensation claim: intoxication and self-inflicted injury. See 208 W.Va. at 236, 

539 S.E.2d at 496. As a result, we decided against the “adoption, by way of implication, of 

additional defenses sounding in contributory negligence,” reasoning that this “would be 

inconsistent with the definite legislative intent ‘to establish a system which compensates 

even though the injury or death of an employee may be caused by his own fault.’” Id. 

(quoting W.Va. Code § 23-4-2(d)(1)).10 

In view of our holding in Roberts that the defense of contributory negligence 

may not be asserted in a “deliberate intent” action, Mr. Simmons contends that evidence of 

an employee’s conduct with relation to the work place injury is barred. Consistent with his 

position that the facts relevant to proximate causation are not relevant to his “deliberate 

intent” action, Mr. Simmons seeks to prevent any evidence of his conduct from being 

admitted at trial. In making these arguments, Mr. Simmons not only confuses the distinction 

between liability and causation but he also misapprehends the statutory design of a 

10When Roberts was issued, the quoted statutory language appeared at subsection 

(c)(1); to avoid confusion we identify the current location of the language–subsection (d)(1). 

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“deliberate intent” action. 

As an initial matter, we observe that the legislative design of providing a 

system of recovery even in the occurrence of a self-caused injury11 still succeeds even when 

an employee’s actions are considered for purposes of a “deliberate intent” action. Under the 

statutory scheme, the employee’s actions12 are not relevant for purposes of the workers’ 

compensation benefits provided by statute. See W.Va. Code § 23-4-2(a). When, however, 

the employee or other statutorily-specified representative decides to seek recovery for “any 

excess of damages over the amount received or receivable” in workers’ compensation by 

asserting a “deliberate intent” action, the right of additional recovery is wholly controlled by 

the five-prong standard provided for establishing this statutory claim. W.Va. Code § 23-4­

2(c); -2(d)(2)(ii). In specific contrast to our no-fault system of workers’ compensation, the 

elements of a “deliberate intent” action suggest that an employee’s actions may be relevant 

to his/her right of recovery. 

Through his attempts to exclude evidence of his actions, Mr. Simmons 

overlooks the statutorily-specified elements of the “deliberate intent” action that clearly 

invite and, in some instances, may actually require a consideration of an employee’s actions 

11We are not referring to instances of self-inflicted injury. See W.Va. Code § 23-4­

2(a). 

12Barring self-inflicted injuryor alcohol-induced injury. See W.Va. Code § 23-4-2(a). 

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relevant to the resulting injuries. The first prong of the five-part “deliberate intent” standard 

requires proof “[t]hat 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.” W.Va. 

Code § 23-4-2(d)(2)(ii)(A). Mr. Simmons contends that he need only submit evidence to 

show that he was “working on an unprotected second floor balcony without fall protection 

. . . to establish part (A)” and that his “conduct is irrelevant with respect to the unsafe 

working condition in this case.” We disagree. 

Both before and since the issuance of our Roberts decision, this Court has made 

clear that an employee cannot create the unsafe working condition that is at the center of his 

“deliberate intent” cause of action. In Deskins v. S.W. Jack Drilling Co., 215 W.Va. 525, 600 

S.E.2d 237 (2004), we recognized the role that the employee played with regard to the 

alleged unsafe working condition: 

there was no unsafe working condition in this case until the 

appellant moved in between the two pieces of equipment as they 

were being pushed together. In other words, the specific unsafe 

working condition only existed when the appellant went into the 

area between the pipe rack and the pipe tub as the equipment 

was being moved into position by the dozer. The appellees 

[employer] had no knowledge that the appellant went into the 

dangerous area as he had been seen moving away from the 

equipment after his supervisor instructed him to do so. As the 

circuit court noted, “the specific unsafe working condition . . . 

occurred within seconds after he was instructed to, and did, 

move to a safe area.” 

Id. at 531, 600 S.E.2d at 243. 

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Seeking to characterize Deskins as inapposite, Mr. Simmons argues that “[t]he 

focus in Deskins was not on the employee’s conduct, but on the employer’s.” While the 

element of the five-prong “deliberate intent” test that the circuit court examined was the 

employer’s subjective realization of a specific unsafe working condition,13 the effect the 

employee’s actions had with regard to the creation of the unsafe working condition was 

pivotal to the court’s grant of summary judgment in favor of the employer. In affirming that 

ruling, this Court underscored the interplay between the employee’s actions in creating a 

“sudden” unsafe working condition and the ability of the employer to “realize and appreciate 

the risk.” 215 W.Va. at 531, 600 S.E.2d at 243. 

Similarly, in Blevins v. Beckley Magnetite, Inc., 185 W.Va. 633, 408 S.E.2d 

385 (1991), this Court considered the fact that the employee’s own actions in removing a 

gate installed as a safety mechanism near an operating conveyor belt created the very unsafe 

working condition for which he sought recovery.14 Id. at 639-40, 408 S.E.2d at 391-92. We 

upheld the trial court’s grant of judgment notwithstanding the verdict in the employer’s 

favor based on the grounds that the jury had not been presented with sufficient evidence to 

establish the employer had a subjective realization and appreciation of an unsafe working 

13In 2005, the Legislature amended the statute to replace “subjective realization” with 

“actual knowledge.” See 2005 W.Va. Acts, ch.248; W.Va. Code § 23-4-2(d)(2)(ii)(B)(2005). 

14We found that “[a] specific unsafe working condition . . . only existed when the 

appellant went into the guarded area, without first turning off the equipment, . . . failing to 

comply with safety procedures.” 185 W.Va. at 639, 408 S.E.2d at 391. 

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condition. Id. at 640-41, 408 S.E.2d at 392-93. Seeking to minimize the significance of the 

employee’s actions in that decision, Mr. Simmons propounds that Blevins is inapplicable 

because there was no discussion about proximate causation.15 

Mr. Simmons’ attempt to distinguish our decisions in Deskins and Blevins 

based on which of the five statutory elements were analyzed for purposes of considering the 

employee’s actions is unavailing. To suggest that an employee’s actions are relevant only 

for purposes of establishing the existence of an unsafe working condition and the employer’s 

awareness of that condition, as it was in both Deskins and Blevins, but not for purposes of 

proximate causation is altogether illogical. The fact that the proximate causation prong is 

expressly tied to the “specific unsafe working condition” by statute further demonstrates the 

fallacy of this contention. W.Va. Code § 23-4-2(d)(2)(ii)(E); see supra note 15. 

15The fifth factor required to establish a “deliberate intent” action demands a showing 

that the employee “suffered serious compensable injury or compensable death . . . as a direct 

and proximate result of the specific unsafe working condition.” W.Va. Code § 23-4­

2(d)(2)(ii)(E). 

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The law is clear that, as part of a “deliberate intent” action, a jury is entitled 

to hear evidence of whether an employee’s actions created the alleged specific unsafe 

working condition as well as whether an employer had actual knowledge of the alleged 

specific unsafe working condition. See W.Va. Code § 23-4-2(d)(2)(ii) (mandating jury 

determination of five elements of “deliberate intent” claim); Deskins, 215 W.Va. at 531, 600 

S.E.2d at 243; Blevins, 185 W.Va . at 641, 408 S.E.2d at 393. Master Mechanical correctly 

asserts that this Court’s ruling in Roberts with regard to the non-availability of the defense 

of contributory negligence in a “deliberate intent” action has no bearing on the elements that 

are required to be established in such a case. Absent successful demonstration of all five of 

the statutory elements provided in West Virginia Code § 23-4-2(d)(2)(ii)(A)-(E), an 

employee cannot recover under a theory of “deliberate intent.” W.Va. Code § 23-4­

2(d)(2)(iii)(B) (providing that failure to prove one or more statutory factors specified in 

subsection (d)(2)(ii)(A)-(E) mandates summary judgment or directed verdict); Syl. Pt. 2, 

Helmick v. Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991) (“To establish 

‘deliberate intention’ in an action under W.Va. Code § 23-4-2(c)(2)(ii) (1998), a plaintiff or 

cross-claimant must offer evidence to prove each of the five specific statutory 

requirements.”); accord Marcus v. Holley, 217 W.Va. 508, 520, 618 S.E.2d 517, 529 (2005) 

(recognizing that “deliberate intent” plaintiff “must make a prima facie showing of dispute 

on each of the five factors” to withstand summary judgment motion) (citing Mumaw v. U.S. 

Silica Co., 204 W.Va. 6, 9, 511 S.E.2d 117, 120 (1998)). 

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The position advocated by Mr. Simmons would amount to a judicial rewriting 

of the standard expressly legislated for proving a “deliberate intent” claim. If we adopted 

his position and prevented an employer from introducing evidence clearly relevant to the 

issues of the alleged specific unsafe working condition and the resultant injury, we would 

be eliminating the critical element of causation provided in the statute. See W.Va. Code § 

23-4-2(d)(2)(ii)(E). Under the five-prong standard adopted to identify the limited instances 

in which a subscribing employer’s immunity is statutorily abrogated, the issue of an 

employee’s conduct is clearly relevant for purposes of determining, inter alia, the existence 

of a specific unsafe working condition; the employer’s actual knowledge of that specific 

unsafe working condition; and whether the employee’s injuries were the direct and proximate 

result of that specific unsafe working condition. Nothing in this Court’s decision in Roberts 

prevents the employer from introducing evidence that is relevant to the five statutory factors 

necessary to prove a statutory claim of “deliberate intent.” Accordingly, we hold that an 

employer in a “deliberate intent” action brought pursuant to West Virginia Code § 23-4­

2(d)(2)(ii) may introduce evidence that is relevant to the issues of whether an employee’s 

conduct created a specific unsafe working condition; whether the employer had actual 

knowledge of that alleged specific unsafe working condition; and whether the injuries at 

issue were the proximate result of that specific unsafe working condition. Accordingly, we 

answer the second certified question in the negative. 

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C. Evidence Relating to Employee’s Work Site Presence 

Through the final certified question, Mr. Simmons seeks to prevent Master 

Mechanical from introducing evidence at trial with regard to the voluntary nature of his 

completion of work at the Portsmouth site on the date of his injury. We find it necessary to 

reframe the third certified question to remove language which pertained to whether Master 

Mechanical was prohibited from arguing that Mr. Simmons was at the work site of his own 

volition.16 See City of Fairmont v. Retail, Wholesale, & Dep’t Store Union, 166 W.Va. 1, 

3-4, 283 S.E.2d 589, 590 (1980) (recognizing that this Court has “traditionally maintained 

that upon receiving certified questions we retain some flexibility in determining how and to 

what extent they will be answered”). Accordingly, we address the following question: 

In light of the Supreme Court’s ruling of September 19, 2008, 

that Mr. Simmons’ injury was compensable under the West 

Virginia Worker’s Compensation Act, is Master Mechanical 

precluded from arguing that Mr. Simmons voluntarily agreed to 

remove the decontamination unit from the second floor of 

Building B? 

Because an award of workers’ compensation benefits requires proof that the 

16To the extent that the third certified question raised the issue of whether Master 

Mechanical is precluded from introducing any evidence that would conflict with the 

predicate finding necessary for an award of workers’ compensation–that Mr. Simmons was 

acting in the course of his employment at the time of his injury–that issue has been resolved 

with this Court’s September 19, 2008, compensability ruling. The fact that Mr. Simmons 

voluntarily traveled to the work site on that day simply has no bearing on the issue of whether 

he can establish the required elements of a “deliberate intent” claim. 

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employee sustained injury in the course of and resulting from his employment,17 Mr. 

Simmons argues that his benefit award necessarily serves as a bar to any evidence Master 

Mechanical seeks to introduce pertaining to his presence and actions at the work site.18 He 

contends that his “purpose or motivation for being on the worksite has no bearing on 

whether an unsafe working condition existed and no bearing on what MMI [Master 

Mechanical] knew about.” 

Responding to these arguments, Master Mechanical asserts that the finding that 

his injury comes within the parameters of basic workers’ compensation is wholly distinct 

from his attempt to recover additional compensation for the alleged “deliberate intent” of 

his employer relative to that injury. Compensability determinations made pursuant to West 

Virginia Code §§ 23-4-1 to -1g (2010) do not require determinations as to the existence of 

unsafe working conditions; an employer’s knowledge of those unsafe working conditions; 

whether an employer intentionally exposed an employee to an unsafe working condition; or 

whether the injury resulted from a specific unsafe working condition. In short, the 

compensability requirements set forth in section one, which are relativelyeasy to meet, stand 

in stark contrast to the five-part “deliberate intent” standard set forth in section two. Cf. 

W.Va. Code §§ 23-4-1 to -1g to 23-4-2(d)(2)(ii). Master Mechanical argues, and we agree, 

17See Syl. Pt. 1, Barnett v. State Workmen’s Comp. Comm’r, 153 W.Va. 796, 172 

S.E.2d 698 (1970). 

18See supra note 16. 

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that the drastically different standards of recovery prevent the issuance of a compensability 

ruling for basic workers’ compensation from having a preclusive effect on the introduction 

of evidence in a “deliberate intent” action. 

Given the clearly distinct type of recovery that the Legislature envisioned in 

fashioning the “deliberate intent” standard–one that exists only upon proof of each of those 

five specified elements–there is absolutely no basis for concluding that a compensability 

ruling has any evidentiary effect with regard to the proof of those unique statutory elements. 

Just as we refused to judicially rewrite the five-prong standard to prevent the introduction 

of evidence regarding an employee’s actions, we similarly will not refashion the standard 

to prohibit relevant evidence bearing on the issue of whether “the employer . . . intentionally 

thereafter exposed an employee to the specific unsafe working condition.” W.Va. Code § 

23-4-2(d)(2)(ii)(D). Master Mechanical has the right to offer evidence to contradict Mr. 

Simmons’ anticipated testimony that he was intentionally directed and exposed to an unsafe 

working condition. Were we to rule otherwise, we would be lessening the statutory burden 

of proof required for recovery in a “deliberate intent” action. See W.Va. Code § 23-4­

2(d)(2)(iii)(B). Accordingly, we respond to the third certified question in the negative. 

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IV. Conclusion 

Based on the foregoing, each of the questions posed by the Circuit Court of 

Cabell County in its order of October 16, 2012, has been answered: the first in the positive; 

the second in the negative; and the third, as reframed, in the negative. 

Certified questions answered. 

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