Author Archives: Alyssa A. Sloan

ARE IDIOPATHIC INJURIES COMPENSABLE IN WEST VIRGINIA?

One of the more difficult issues in Workers’ Compensation law in West Virginia is whether idiopathic injuries are considered compensable injuries for workers’ compensation purposes. This subject continues to provide ample opportunity for litigation as private insurers, self-insured employers, and third-party administrators continue to reject workers’ compensation claims that result from an injury of no known cause that occurs while at work.  An example of this type of injury is an employee who is simply walking at work and either suffers a knee injury or an ankle injury unrelated to any type of accident or incident. Sometimes the injury results in a fall and sometimes it does not (and these facts must all be considered carefully).  In recent decisions, the West Virginia Supreme Court of Appeals and the West Virginia Workers’ Compensation Insurance Commission Office of Judges have attempted to clarify the state of the law in regard to these issues.  However, it does appear that the state is moving towards a general rule that provides that idiopathic injuries that occur at work will be considered compensable.  These types of situations are very factually driven, so it usually is a good idea for employers and claims administrators to obtain as much factual and medical information as possible from the time of the initial report of injury to make sure that nothing outside of the scope of work, including a pre-existing medical condition, could have caused the injury.  Read More »

WEST VIRGINIA SUPREME COURT FINDS CLAIMANT’S DEATH TO BE WORK-RELATED EVEN THOUGH HIS HEAD INJURY OCCURRED OVER A YEAR PRIOR WITH NO INTERVENING TREATMENT

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. Read More »

ARE PTSD CLAIMS COMPENSABLE IN WEST VIRGINIA?

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.  Read More »

LISTEN TO THIS: PIONEER PIPE, INC. V. SWAIN REVERSES 30 YEAR OLD RULE OF LAW THAT LIMITED WORKERS’ COMPENSATION CHARGEABILITY ATTACHING TO EMPLOYERS

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. Read More »

WV SUPREME COURT ALLOWS TOLLING OF SIX MONTH TIME LIMITATION ON FILING A CLAIM FOR DEPENDENT’S DEATH BENEFITS UNDER WORKERS’ COMPENSATION ACT

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.

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HOW SHOULD IME DOCTORS APPORTION FOR PRE-EXISTING IMPAIRMENT USING THE AMA GUIDES AND RULE 20 GUIDELINES?

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 impairmentRead More »

LEGISLATURE ALLOWS FOR ATTORNEY’S FEES IN CERTAIN WORKERS’ COMPENSATION CLAIMS

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.  Read More »

WV LEGISLATURE ALLOWS FOR ATTORNEY’S FEES IN CERTAIN WORKERS’ COMPENSATION CLAIMS

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.

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REOPENING AND RE-EVALUATING PERMANENT TOTAL DISABILITY AWARDS CONSIDERED BY W. VA. SUPREME COURT

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. 

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