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.
As summer begins to fade into fall, people everywhere are just beginning to enjoy five months of riveting football action. While most football fans do not link the sight of their favorite team’s colors with issues of employment law, the American gridiron has proved to be one of the most important arenas for the development of modern workers’ compensation law. Many dedicated football fanatics talk about Jack Lambert’s toothless grimace, Joe Theismann’s broken leg, or Drew Brees’ torn labrum. Not many football fans consider how Lambert’s busted mouth is repaired, Theismann’s leg is healed, or Brees’ shoulder is reconstructed, though. The answers are found in the ubiquitous workers’ compensation system.
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.
Spring has finally arrived to relieve us from a long, dreary winter. With warmer weather and longer days, employers now have the opportunity to focus on outdoor projects that have fallen dormant for several months. However, while warmer weather offers employers a chance to get outside and work, moving that work outside can present some hazards to employees that are often overlooked. Whether your workplace is a saw mill, a factory, or an office, the natural inhabitants of your environment who are also awakening at this time of year can pose a threat to your employees. Employers should spend time identifying these potential threats and making to minimize the risks that they present.
I was recently asked what happens if an employee is injured at work, and the employer is not at fault. For example, an employee trips over a chair that is properly tucked into a table, and the employee is injured. The employer was not at fault for the employee’s fall – after all, the chair was properly placed – and yet the employee could still be entitled to workers’ compensation. Why is that?
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.
It is no secret that employers often struggle with fashioning light duty jobs for employees on the mend. A growing trend, however, is for employers to send employees in need of light duty assignments to work for charitable or community organizations wherein the employee receives his or her regular wage and the organization receives a “volunteer.” By engaging in community service, the employee is returning to a job and is productive, albeit in new and different ways. The employer is getting the benefit of goodwill in the community, as well as assisting the employee in the healing and reconditioning process.
In the past decade, it has become increasingly common to see employers devise new and innovative ways to reinforce the importance of safe workplaces to their employees. In an effort to achieve greater workplace safety, employers have frequently looked to implementing safety incentive programs (“SIPs”) to reward employees with cash, prizes, awards, or other recognition when the total number of injuries and near misses falls below the level specified by management. For example, an individual employee or department could be rewarded with anything from free t-shirts to a chance to win a new pickup truck in a company raffle if the injury tally falls below the threshold the employer establishes. Some employers have even used cash incentives or additional vacation time as rewards to encourage workers to be more safety conscious.
In JWCF, LP v. Farruggia, the West Virginia Supreme Court affirmed the Kanawha County Circuit Court’s refusal to grant a new trial after a jury awarded a former employee more than $250,000 in back pay, front pay, and damages arising out of a Workers’ Compensation discrimination claim.