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.
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.