          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA



                                  September 2013 Term              FILED
                                      __________               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).




                                               i
              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.




                                             ii
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 statutory interpretation; the second query seeks 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).


                                                  1

                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.

                                              2

                  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.


                                                 3

              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.

                                             4

                                       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


                                               5

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


                                               6

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


                                              7

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).

                                               8

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. . . .

                                               9

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



       10
          When 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).

                                             10

“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

        11
             We are not referring to instances of self-inflicted injury. See W.Va. Code § 23-4­
2(a).
        12
             Barring self-inflicted injury or alcohol-induced injury. See W.Va. Code § 23-4-2(a).

                                                 11

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.

                                               12

              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

       13
         In 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).
       14
        We 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.

                                              13

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.




       15
          The 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).

                                              14

              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)).


                                              15

              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.




                                             16

               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




       16
         To 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.

                                              17

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 relatively easy 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,

       17
        See Syl. Pt. 1, Barnett v. State Workmen’s Comp. Comm’r, 153 W.Va. 796, 172
S.E.2d 698 (1970).
       18
            See 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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