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 EMPLOYEES CAN KEEP GUNS IN THEIR CARS – WHAT EMPLOYERS NEED TO KNOW

On June 8, 2018, the Business Liability Protection Act (a.k.a “the Parking Lot Gun Bill”) goes into effect and creates a series of new standards which prohibit employers from maintaining or establishing “no firearms” policies in vehicles on company-owned parking lots and property where vehicles are parked. Read More »

IN PENNSYLVANIA, OFF-COLOR COMMENTS MAY CREATE MORE LIABILITY THAN A SEXUAL HARASSMENT CLAIM

Despite the “#MeToo” Movement, it’s still not uncommon for workers to make comments concerning a co-worker’s sexual practices. Nor is it uncommon for employers to successfully defeat sexual harassment claims based on such conduct by citing the well-established case law that discrimination statutes do not mandate a pristine work environment – shop-talk is not actionable.  Read More »

AN “EPIC” OPINION: SUPREME COURT GIVES GREEN LIGHT TO CLASS ACTION WAIVERS IN ARBITRATION AGREEMENTS

On May 21, 2018, the United States Supreme Court issued a decision holding that class action waivers in employment arbitration agreements were valid and enforceable in the face of a challenge under the National Labor Relations Act (“NLRA”), resolving a significant disagreement among lower federal courts. By way of background, the Federal Arbitration Act (“FAA”), passed in 1925, provides for enforcement of agreements between parties to resolve disputes through private arbitration, rather than in court.  Under the FAA’s “savings clause,” arbitration agreements may generally only be voided under traditional contract principles (for example, in cases of duress or unconscionability). Read More »

ERISA’S NEW CLAIMS AND APPEALS PROCEDURES FOR DISABILITY BENEFIT CLAIMS

“It’s a New Dawn; It’s a New Day; It’s a New Life for Me; and I’m Feeling [not so] Good”

While Nina Simone’s song captures the power of “feeling good,” the effects of an employee’s disability do not feel good for the employee or employer. And if your organization offers employee benefits that require the plan administrator to determine whether a plan participant is disabled, you should confirm that your plans reflect updated claims and appeal procedures.  Regulations finalized back in 2016 are now in effect.  Read More »

TICKET TO RIDE: MUST EMPLOYERS REASONABLY ACCOMMODATE?

Suppose you have an employee who claims he is too large for a regular airline seat, so when you send him to travel on company business, he wants first-class tickets to accommodate his larger size. Can you tell the employee that he must fly on company business in standard seating? Read More »

PENNSYLVANIA’S STRICT CONSTRUCTION OF SOCIAL MEDIA POLICIES

Personnel policies are designed to inform employees of the types of conduct that are acceptable or unacceptable. They, obviously, can only give a general overview and are subject to interpretation and application by the employer on a case-by-case basis.  A recent decision arising out of a Tweet by a Vice President of Human Resources shows that such policies will be strictly construed against employers in Pennsylvania. Read More »

A WIN FOR EMPLOYMENT ARBITRATION AGREEMENTS FROM THE WEST VIRGINIA SUPREME COURT

In a win for employers in the State of West Virginia, the Supreme Court of Appeals of West Virginia overturned a lower court’s decision that an employment arbitration agreement was unenforceable in Hamden Coal, LLC v. Varney. The lower court agreed with the employee on every relevant issue, finding that arbitration claims are viewed differently in an employment context, that the agreement was a contract of adhesion, that the agreement lacked consideration, that the agreement was unconscionable, and that the employee’s claims fell outside the agreement. The Supreme Court, however, overturned each finding and took the additional step of directing the court to enter an order dismissing the civil action and compelling arbitration.  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 »