West Virginia Code § 23-4-10 provides that when a personal injury suffered by an employee in the course of and resulting from his or her employment causes death, and the disability is continuous from the date of injury until the date of death, the decedent’s dependents may receive benefits. The West Virginia Supreme Court of Appeals recently affirmed an award of these death benefits, even though the claimant’s disability was not obviously continuous from the time of his work-related injury as he was not in active treatment for any disability at the time of his death.
As a general principal in West Virginia, a claimant is precluded from receiving workers’ compensation benefits for a mental injury with no physical cause. West Virginia, like most other states, provides that for workers’ compensation purposes, no alleged injury or disease shall be recognized as a compensable injury or disease, which was solely caused by non-physical means and which did not result in any physical injury or disease to the person claiming benefits. The purpose of W. Va. Code § 23-4-1f is to clarify that “mental-mental claims” are not compensable for workers’ compensation purposes in West Virginia.
The claimant worked as a heavy equipment operator for various employers over a thirty-three year period, during which he was routinely exposed to loud noises from the machines he operated and from equipment being used around him. The claimant worked for his last employer for a total of forty hours. After he was subsequently diagnosed with hearing loss directly attributable to industrial noise exposure, the claimant filed a hearing loss claim for worker’s compensation benefits.
W.Va. Code § 23-4-15 provides the statute of limitations for filing a claim for Workers’ Compensation dependent’s death benefits in West Virginia. In 1986, the Legislature adopted a six month period in which applications for these benefits may be filed. The code section specifically provides that a dependent must file for death benefits “within six months from and after the injury or death.” The code section further provides that such time limitation is a condition of the right and is jurisdictional. In April 2015, the West Virginia Supreme Court specifically found that this code provision did not intend to completely bar a claim for dependent’s benefits when, due to the medical examiner’s delay in preparing an autopsy report, there was no indication that an employee’s death was work-related until eight months after the death.
In West Virginia, Workers’ Compensation statutes provide that an employee who has a definitely ascertainable impairment resulting from an occupational or non-occupational injury, disease, or any other cause, whether or not disabling, and the employee thereafter receives an injury in the course of and resulting from his employment, the prior injury and the effect of the prior injury and aggravation shall not be taken into consideration in fixing the amount of compensation or impairment allowed by reason of the subsequent injury. The statute provides that compensation, i.e., a permanent partial disability impairment rating, shall be awarded only in the amount that would have been allowable had the employee not had the pre-existing impairment.
In 2009, the West Virginia Supreme Court of Appeals created a formal Access to Justice program for the State of West Virginia. The Access to Justice program was established to determine the needs of citizens accessing the justice system in the state. One of the issues identified by the Access to Justice Commission was the lack of ability for claimants to obtain counsel in the litigation of denied medical treatment issues in workers’ compensation claims. Accordingly, Supreme Court Justice Brent Benjamin formed a committee to address this issue.
W. Va. Code § 23-4-16(d) was amended in 2005 in regard to permanent total disability (“PTD”) awards that have been previously granted. The amendment requires the private carrier or self-insured employer to continuously monitor these awards. It further allows the private carrier or self-insured employer to reopen these claims for re-evaluation of the PTD award using the current statute governing the granting of such award and also provides for the possibility of modification of the award.
In West Virginia, the legally-stated purpose of the workers’ compensation program is to assist workers to return to gainful employment after a compensable injury. Even though a worker might not be able to return to identical employment, the attainment of suitable, gainful employment in a different occupation is desired. Under West Virginia workers’ compensation statutes and regulations, it is the shared responsibility of the insurer, the injured worker, and the employer, to return the injured worker to suitable employment. It is the responsibility of the injured worker to participate in an approved rehabilitation program, if appropriate, after a worker has suffered a compensable injury. The participation in such a program entitles the worker to temporary total disability benefits while the employee is participating in the program or temporary partial rehabilitation benefits if the employee is working part-time. Failure of the employee to participate in an approved program may result in the denial of the requested services and the termination of temporary total disability benefits.