West Virginia Workplace Injury Guide

By J. Brandon Shumaker and J. Tyler Slavey  ·  Slavey & Shumaker PLLC  ·  Morgantown, WV  ·  Last updated November 4, 2026

A serious injury at work can stop a paycheck, bring months of treatment and raise hard questions about what comes next. Workers’ compensation pays some benefits, but it does not pay for pain and suffering and may not cover the full loss of income. When someone other than your employer helped cause the injury, you may be able to recover more.

Slavey & Shumaker PLLC helps injured workers in Morgantown and throughout the State of West Virginia, including Monongalia, Preston, Marion and Harrison Counties identify every source of recovery after a job injury. For an overview of our injury practice, see our personal injury lawyers page.

1. Workers’ Compensation and Employer Immunity

West Virginia’s workers’ compensation system pays benefits for work injuries without requiring the worker to prove the employer was at fault. In exchange, an employer that procures and continuously maintains workers’ compensation coverage, or properly elects to pay compensation directly, and that is in compliance with the law, “is not liable to respond in damages at common law or by statute for the injury or death of any employee, however occurring” (W. Va. Code § 23-2-6).

To receive benefits for an injury, the application must be filed within six months from and after the injury or death, or the right to compensation is barred (§ 23-4-15(a)). Occupational pneumoconiosis and other occupational disease claims have their own deadlines (§ 23-4-15(b) and (c)). Report the injury to your employer right away and make sure a claim is filed.

How our office handles workers’ compensation claims. We want to be upfront: Slavey & Shumaker PLLC does not handle workers’ compensation claims directly. We refer those claims to, and co-counsel with, other firms that handle the majority of that work, and we can review whether you also have a claim against a negligent third party.

2. Third-Party Claims

Employer immunity does not protect everyone else. When a compensable injury is caused, in whole or in part, by the act or omission of a third party, the injured worker is entitled to workers’ compensation and “shall not by having received compensation be precluded from making claim against the third party” (W. Va. Code § 23-2A-1(a)).

A third-party claim is an ordinary personal injury claim. It can recover damages that workers’ compensation does not pay, including pain and suffering, loss of enjoyment of life and full lost earnings. West Virginia’s comparative fault rules apply: your share of fault does not bar recovery unless it is greater than the combined fault of all other persons responsible, and your recovery is reduced by your percentage of fault (§ 55-7-13c(c)).

3. Common Third-Party Workplace Injury Cases

4. Deliberate Intent Claims Against an Employer

An employer loses its immunity only if it acted with “deliberate intention” (W. Va. Code § 23-4-2(d)(2)). The Legislature has said this standard is narrower than the ordinary tort concept of willful, wanton and reckless misconduct (§ 23-4-2(d)(1)). It can be met in one of two ways:

• Proof that the employer acted with a consciously, subjectively and deliberately formed intention to produce the specific result of injury or death to an employee (§ 23-4-2(d)(2)(A)); or
• Proof of all five of the following facts (§ 23-4-2(d)(2)(B)): (i) a specific unsafe working condition existed that presented a high degree of risk and a strong probability of serious injury or death; (ii) the employer had actual knowledge of that condition and its risk before the injury; (iii) the condition violated a state or federal safety statute, rule or regulation, or a commonly accepted and well-known safety standard within the employer’s industry; (iv) the employer nevertheless intentionally exposed the employee to the condition; and (v) the employee suffered serious compensable injury or compensable death as a direct and proximate result.

The statute sets detailed requirements for each element. Actual knowledge must be specifically proven and is not established by what supervisors should have known (§ 23-4-2(d)(2)(B)(ii)). “Serious compensable injury” generally requires, among other things, a whole person impairment rating of at least 13 percent as a final award in the workers’ compensation claim, with specific exceptions (§ 23-4-2(d)(2)(B)(v)). A verified statement from a qualified workplace safety expert must be served with the complaint, and punitive damages are not allowed (§ 23-4-2(d)(2)(C)(i) and (ii)). The worker generally must also have filed a workers’ compensation claim, and can recover only damages in excess of the benefits received or receivable (§ 23-4-2(c)).

How our office handles deliberate intent claims. We want to be upfront: Slavey & Shumaker PLLC does not handle deliberate intent claims directly. When a workplace injury may support a deliberate intent claim, we refer the case to, and co-counsel with, other firms that handle the majority of that work. We can review what happened with you and explain your options.

5. Repaying Workers’ Compensation From a Recovery

When an injured worker recovers money from a third party, the private carrier or self-insured employer generally has statutory subrogation for the indemnity and medical benefits it paid as of the date of the recovery (W. Va. Code § 23-2A-1(b)(1)). The law creates a lien on the money received (§ 23-2A-1(d)), but the party entitled to subrogation must permit deduction of reasonable attorney fees and costs and may negotiate the amount it will accept (§ 23-2A-1(c)).

The worker and the worker’s attorney must give the carrier or self-insured employer reasonable notice after a claim is filed against the third party and before any recovery is paid out. Failing to protect the subrogation right has serious consequences. Subrogation does not apply to uninsured and underinsured motorist coverage or other insurance purchased by or for the injured worker (§ 23-2A-1(e)).

6. What to Do After a Work Injury

Our consultation checklist lists what to bring to a first meeting. For injuries with long-term effects, see our serious injury page, and when a work injury causes a death, see our wrongful death page.

7. Deadlines

8. Why Choose Slavey & Shumaker PLLC

Our attorneys, J. Tyler Slavey, J. Brandon Shumaker, Scott B. Harris and Kasey Libby, look beyond the workers’ compensation claim to find every party that may be responsible. We investigate the incident, identify insurance coverage, work through the subrogation lien and pursue full compensation. For workers’ compensation and deliberate intent claims, we refer the claim to and co-counsel with other firms that handle the majority of that work. No lawyer can guarantee a result. You can read what past clients say in our more than 100 Google reviews.

9. Frequently Asked Questions About Workplace Injuries

This page is provided for general informational purposes about West Virginia law and is not legal advice. Reading it does not create an attorney-client relationship. Every case depends on its own facts, and past results do not guarantee a similar outcome.