DEFINITIONS

Employer

The state, all governmental agencies or departments created by it, county boards of education, political subdivisions of the state, any duly incorporated volunteer fire department or company and emergency service organizations organized under the West Virginia Code, and all persons, firms, associations and corporations regularly employing another person or persons for the purpose of carrying on any form of industry, service or business in the state, are employers within the meaning of the act. W.Va. Code Section 23-2-1.

Employee vs. Independent Contractor

Employees are covered by the West Virginia workers’ compensation statute, whereas independent contractors are not. An individual will not be considered an independent contractor if the employer retains the “right to control” or supervise the work. Barkley v. Workmen’s Comp. Comm’r, 266 S.E.2d 456 (W.Va. 1980). The determining factor is not the use of the right to control, but rather the existence of the right.Id.

In close cases, the courts will always err towards finding the individual to be an employee and not an independent contractor. Myers v. Workmen’s Comp. Comm’r, 148 S.E.2d 664 (W.Va. 1966).

EXCLUSIVE REMEDY

Deliberate Intent

Employers are generally entitled to immunity from civil liability for work-related injuries, except when “deliberate intent” on the part of the employer is present. Pursuant to W.Va. Code Section 23-4-2, to establish a deliberate intent action in West Virginia, the employee must establish:

A.       A specific, unsafe working condition existed in the workplace which presented a high degree of risk and a strong possibility of serious injury of death;

B.       The employer, prior to the injury, had actual knowledge of the existence of the specific unsafe working condition and of the high degree of risk and the strong possibility of serious injury or death presented by the specific unsafe working condition;

C.       That the specific, unsafe working condition was a violation of a state or federal safety statute, rule or regulation, whether cited or not, or of a commonly accepted and well-known safety standard within the industry or business of the employer, as demonstrated by competent evidence of written standards or guidelines which reflect a consensus safety standard was specifically applicable to the particular work and working condition involved, as contrasted with a statute, rule, regulation or standard generally requiring safe workplaces, equipment or working conditions;

D.       Notwithstanding the existence of the facts set forth in subparagraphs A-C, inclusive, the employer nevertheless intentionally thereafter exposed an employee to the specific unsafe working condition;

E.       The employee exposed suffered serious compensable injury or compensable death as a proximate result of the specific unsafe working condition.

JURISDICTION AND LIMITATIONS OF ACTIONS

General Rule

Under W.Va. Code Section 23-2-1, any employee who is working in West Virginia at the time of the injury will be covered by the West Virginia workers’ compensation statutes, unless that individual is a resident of another state and is “subject to the terms and provisions of the workers’ compensation law or similar laws” of that other state.

If the employee is working outside of West Virginia, then the employee will only be covered by the West Virginia workers’ compensation statutes if the employer is located in West Virginia and the employee is only outside of West Virginia on a temporary basis. If the employee is outside of West Virginia on a permanent basis, the West Virginia statutes will not apply, regardless of the location of the employer.

Extraterritorial Jurisdiction

If the individual’s employment is primarily interstate in nature (in other words, the employee’s work is outside of West Virginia on a permanent basis), then there will be no coverage under the West Virginia statute. However, the definition of intrastate activity is broad, and will likely include most individuals who work for West Virginia employers. Example: an individual was employed by a mobile home retailer who purchased a majority of homes in Ohio, and then transported them to West Virginia where they were sold. The court found that the individual, who was injured while in Ohio picking up a mobile home for his employer, could make a claim under the West Virginia statute, as his employer’s business was primarily intrastate, in that the main purpose of the business was to sell mobile homes in West Virginia. Mitchell v. Clowser, 170 S.E.2d 753 (W.Va. 1969).

Time Limitation

Discovery Rule

To entitle any employee to compensation for occupational disease, the application for compensation must be filed within three years from and after the day on which the employee was last exposed to the particular occupational hazard involved or within three years from and after the employee’s occupational disease was made known to him or her by a physician or which he or she should reasonably have known, whichever last occurs, and unless filed within the three year period, the right to compensation will be forever barred. W.Va. Code Section 23-4-15.

Notice of Injury

The claimant is required to “immediately” give written notice to his or her employer that the injury occurred. Exceptions are made for when the injury is substantial, or it would otherwise be impossible for the claimant to provide such notice. Failure to do so may be expressly considered by the claims administrator in determining the compensability of the claim, but does not act as an absolute bar if the claim is submitted within the six-month time frame. W.Va. Code § 23-4-1a.

Statute of Limitations

In an occupational injury case, the claimant has six (6) months to file a proper application for benefits with the insurer. Failure to do so will bar the claimant from claiming workers’ compensation. W.Va. Code § 23-4-15.

Special Rules for Death Claims

Where an occupation injury caused death, the application for dependents’ benefits must be filed within six months of the date of death. W.Va. Code Section 23-4-15(a).

Occupational Disease Claims

For occupational diseases, the period is three years after (1) the date of last exposure to the occupational hazard that caused the injury; (2) the date the disease was made known to the claimant by a physician; or (3) the date the claimant should reasonably have known about the disease, whichever occurs last. W.Va. Code § 23-4-15.

Where an occupational disease caused death, the application for dependents’ benefits must be filed within one year of the date of death. W.Va. Code Section 23-4-15(c).

Occupational Pneumoconiosis Claims

For occupational pneumoconiosis, the period is three (3) years after the claimant was diagnosed with an impairment due to occupational pneumoconiosis, and that fact was made known to him or her by a physician. W.Va. Code § 23-4-15(b).

In claims for dependent’s benefits for Occupation Pneumoconiosis, the application must be filed within two years of the date of death

COMPENSABILITY

General Rule

Under West Virginia Law, a claimant can be entitled to temporary total disability (TTD); permanent partial disability (PPD); permanent total disability (PTD); vocational rehabilitation services; and all medical care “medically necessary” or “reasonably required” to treat the work related injury or disease. W.Va. Code Section 23-4-3(a).

“Injury”Defined

An employee is generally covered when he or she is injured due to “an isolated fortuitous event received…in the course of and resulting from his employment with his employer.” Dickerson v. State Workmen’s Comp. Comm’r, 173 S.E.2d 391 (W.Va. 1970).

Types of Injuries

Accident Not Required

Despite use of the phrase “isolated fortuitous event”, injuries that occur gradually, over time, will be compensable if the activities leading to the disability meet the requirements of occurring in the course of the employment and result from the employment. Lilly v. State Workmen’s Comp. Comm’r, 225 S.E. 2d 214 (W.Va. 1976).

Infectious Diseases

See Occupational Diseases infra.

Heart

Not applicable.

Psychological Injury

An individual cannot claim workers’ compensation for an alleged injury where the incident was a mental stress or impact (i.e. no physical contact) on the claimant, and the resulting alleged injury is a purely mental or psychological injury. For example, an individual who sees a co-worker injure themselves cannot then make a workers’ compensation claim for Post Traumatic Stress Disorder. W.Va. Code § 23-4-1(f).

Occupational Diseases

Occupational diseases are compensable only if they meet the following six requirements:

1) There is a direct causal connection between the conditions under which work is performed and the occupational disease.

2) It can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment.

3) It can be fairly traced to the employment as the proximate cause.

4) It does not come from a hazard to which workmen would have been equally exposed outside of the employment.

5) It is incidental to the character of the business and not independent of the relation of employer and employee.

6) It appears to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence, though it need not have been foreseen or expected before its contraction.

W.Va. Code Section 23-4-1(f).

Occupational Pneumoconiosis

When an “OP” claim is filed, the injured employee is sent to Charleston, WV for an examination, including a chest x-ray and pulmonary function test. If the tests show scarring of the lungs or pulmonary problems, the Claimant may be entitled to a permanent disability award. Eligibility is determined by the OP Board, consisting of five physicians (three internal medicine specialists and two radiologists).

Occupational Hearing Loss

Permanent hearing loss as a result of exposure to noise in the workplace: claimant must file for OHL benefits, being examined by a certified otolaryngologist (who will complete part of the OHL/WC-125 form), and then if compensable, claimant will be reimbursed for cost of examination and potentially for cost of hearing aids (in addition to PPD benefits)

EXCLUSIONS AND DEFENSES

Course of Employment

Injuries suffered by employees in the course of and resulting from the employment are considered compensable under West Virginia law. W.Va. Code Section 23-4-1(a).

Not in Furtherance of Employer’s Business

If an individual acts in such a way that he could be considered to have abandoned his employment, the injury will not be considered “in the course of” his employment. However, a slight deviation will not be considered sufficient to justify such a finding.

Activities incidental to the employment that are reasonably necessary to the employee’s health and comfort, including drinking water, eating or seeking warmth, will generally be considered activities within the course and scope of the employment.

Injuries sustained during horseplay are generally not compensable, if the horseplay is disconnected from the performance of any job duties. However, there are four exceptions to this general rule:

1.       Where the employer knew of the horseplay and permitted it to continue.

2.       Where the employer anticipated the misuse of dangerous equipment.

3.       Where the horseplay contributed, but was not the decisive factor in the injury.

4.       Where there is an association of men in common work in crowded factories.

Traveling Employees

Employees travelling on behalf of the employer’s business will generally be covered by workers’ compensation. If the Claimant makes a major deviation from the business purpose, it is more likely that compensation benefits will be denied. Generally, the longer in time, greater in geographical distance or greater in purpose that the Claimant deviates from the business purpose, the more likely it will be considered a “major” deviation. See Calloway v. State Workmen’s Comp. Comm’r, 268 S.E.2d 132 (W.Va. 1980).

Commuting

Use of streets and highways is not compensable unless (1) their use in that particular instance was required in the performance of the individual’s job duties or (2) the contract of employment required the individual either expressly or impliedly to use the place of injury in going to or returning from work. Barkley v. State Workmen’s Comp. Comm’r, 268 S.E.2d 456 (W.Va 1980); Bilchak v. State Workmen’s Comp. Comm’r, 168 S.E. 2d 723 (W.Va. 1969)

Resulting from the Employment

In addition to the requirement that the injury must occur in the course of the employment, there must also be a showing that the injury resulted from an activity being performed in the course of the work, or from some peculiar danger to which the individual was exposed because of the work. Archibald v. Workmen’s Compensation Com’r, 87 S.E. 791 (W.Va. 1916).

Intentionally Self-Inflicted Injury or Death

Suicide is compensable under the workers’ compensation statute provided that:
“(1) the employee sustained an injury which itself arose in the course of and resulted from covered employment, and
(2) without that injury the employee would not have developed a mental disorder of such degree as to impair the employee’s normal and rational judgment, and
(3) without that mental disorder the employee would not have committed suicide.” Hall v. State Workmen’s Comp. Comm’r, 303 S.E.2d 726 (W.Va. 1983).

Employee’s Violation of the Law, Intoxication, and Illegal Use of Drugs

Intoxication is a very limited defense, and requires proof that an individual was intoxicated at the time of the injury, and that the intoxication caused the injury to occur. A positive drug test alone is not sufficient to establish an intoxication defense. However, a showing that an individual had a blood alcohol content (BAC) of .08 or higher at the time of the injury is sufficient to prove intoxication, although causation will still need to be proven. W.Va. Code § 23-4-2(a).

Employee’s Violation of Positive Orders of Employer

When an employee willfully disobeys or disregards a statute or rule of his or her employer that was put in place for the protection of the employee, and such willful action causes the work injury, the claimant will be barred from recovery under the workers’ compensation statute. However, in order to act as a bar to the claimant, the claimant has to have knowledge of the statute or rule that bars that particular behavior, and the claimant has to knowingly disregard that rule. Negligence is not sufficient. Carrico v. State Comp. Comm’r, 33 S.E.2d 281 (W.Va. 1945).

Personal Animosity and Hostile Attacks

Generally, an injury caused by an assault will be compensable if the assault occurred arises out of or as a result of the employment. See Turner v. State Compensation Com’r, 126 S.E.2d 40 (W.Va. 1962).

An attack by either a co-employee or non-employee will not be compensable if the reason for the assault is not related or incidental to the work or the nature of the work. Geeslin v. Workmen’s Comp. Com’r, 294 S.E.2d 150 (W.Va. 1982). However, even remote relationships between the assault and the employment have been held to be compensable.

BENEFITS

Calculation of Average Weekly Wage

Part Time Employees

For part-time employees, their Average Weekly Wage will be computed by dividing the claimant’s prior year’s-worth of employment into four quarters, and determining the average weekly gross pay during each of the preceding four (4) quarters. The highest of those four average gross pay amounts will be the claimant’s Average Weekly Wage for the purposes of determining their compensation rate. If the claimant has worked less than two (2) months with the employer, but more than one (1) week, the claimant’s Average Weekly Wage will be equal to his or her average gross pay for the weeks actually worked for the employer.

If the claimant has worked less than one (1) week for the employer, you must determine whether the claimant’s hourly wage had been set prior to the time of the injury. If it had, the Average Weekly Wage will be equal to the agreed-upon hourly wage multiplied by the number of hours per week the employer contracted with the employee to work. If no such wage had been set, the Average Weekly Wage will be based upon the prevailing Average Weekly Wage for the same or similar part-time work at the time of the injury. The claimant will then be entitled to receive 2/3 of their Average Weekly Wage in compensation, not to exceed 100% of the statewide Average Weekly Wage. W.Va. Code § 23-4-6d.

Full-time Employees

“Full-time” employees are defined as any employee that does not qualify as a part-time employee. Full-time employees are entitled to receive 2/3 of their Average Weekly Wage up to 100% of the state-wide Average Weekly Wage in wage-loss benefits. A full-time employee’s Average Weekly Wage will be equal to whichever of the two following options provides for the higher Average Weekly Wage:

Minimum compensation will be equal to 1/3 of the statewide average weekly wage. W.Va. Code 23-4-6(b).

Total Disability

If the period of disability is less than three (3) days, then no TTD benefits should be paid. If the period is between four (4) and six (6) days, then TTD should only be paid from day four onwards.

TTD benefits are capped at 104 weeks.

Temporary Total Disability benefits may be closed upon occurrence of the following:

Once evidence that any of the above criteria have been met is obtained by the claims administrator, a notice must be sent indicated that TTD benefits have been “suspended”, and that TTD will be closed if the employee does not provide medical evidence to establish ongoing entitlement to benefits within a reasonable period of time (which is generally considered to be 30 days). The notice that benefits have been suspended cannot be protested.

If at the end of the 30-day period, the claims administrator determines that the employee has not supplied medical evidence sufficient to justify ongoing benefits, the claims adjuster issues a second order, stating that the claim is closed for TTD, and that the employee is entitled to protest the closure.

Permanent Total Disability

Disability must also render the employee unable to engage in substantial gainful activity requiring skills or abilities which can be acquired or which are comparable to those of any gainful activity in which they were previously, regularly engaged.

They terminate with the receipt of SS Old Age/Retirement Benefits.

The AMA Guides to the Evaluation of Permanent Impairment 4th Edition is the standard for rating permanent whole-person impairment. Impairment for psychiatric claims is determined by W.Va. Code 23-4-6(f).

Partial Disability

Check into Non-Awarded Partial Benefits under 23-4-7(a).

Has not returned to work and can be paid until RTW or entry of PPD as pre-payment of an award. Claimant must have proof of a permanent impairment. Paid at same rate as PPD.

Impairment Rating

Although Temporary Total Disability benefits are capped at 104 weeks, all claimant’s may be entitled to Permanent Partial Disability awards, if there is ongoing disability at the end of the claimant’s Temporary Total Disability entitlement. In such situations, a doctor will evaluate and provide a whole-person impairment rating of 0% -100%. If there is any Permanent Partial Disability found, up to 84% disability, the claimant will be entitled to four (4) weeks of benefits per percentage of whole-person impairment.

Permanency ratings may be performed by the claimant’s treating physician or by an IME physician. For each 1% of permanent whole person disability caused by the injury, the claimant will be entitled to an additional 4 weeks of benefits.

If the treating physician recommends an award equal to/less than 15% whole person impairment, the Employer has a mandatory duty to enter an award based on those recommendations. If it is greater than 15%, the employer has the right to an evaluation of its own. 85 CSR 20 has tables of ranges of impairments.

Maximum PPD benefits are 66 2/3% of the employee’s AWW, not to exceed 70% of the statewide AWW.

Vocational Rehabilitation

Title 85, Series 15 of the West Virginia Code of State Rules provides extensive description of the requirements for vocational rehabilitation of the claimant. Under such a program, a rehabilitation provider is brought in to create a plan for the claimant’s return to the workforce. All such rehabilitation providers must be approved and qualified under the rules. Vocational rehabilitation’s goal is to return the claimant to his or her pre-injury job with the time-of-injury employer. However, as that is not always possible, the rules provide a hierarchy of what the vocational rehabilitation program’s ultimate goal should be. The plan should attempt to achieve the first goal in the hierarchy. The next option on the list may only be considered if the prior options are all untenable:

1.        Return to time-of-injury job with time-of-injury employer.

2.        Return to modified time-of-injury job with time-of-injury employer.

3.        Return to different position with time-of-injury employer.

4.        Return to different position with on-the-job training with time of-injury employer.

5.       Return to work with new employer without retraining.

6.        Return to work with new employer with on-the-job training

7.        Return to work following enrollment of the claimant in a goal-oriented retraining program, designed to lead to gainful employment elsewhere in the labor market

The maximum cost of the program is not to exceed $20,000.00, not including temporary total disability, TPR and physical rehabilitation services.

Amputation or Loss of Use,Disfigurement,Scarring

Losses of body parts “by severance” (or “total and irrevocable loss” in regards to hearing and sight in one or both eyes or ears) will automatically entitle a claimant to certain Permanent Partial Disability ratings. West Virginia Code Section 23-4-6(f) provides the schedule of total body disability ratings for loss of such body parts and functions. The loss of multiple body parts, or the loss taken in conjunction with other injuries, may entitle the claimant to Permanent Total Disability status.

Under West Virginia Code Section 23-4-6(f), disability is due as follows:

The loss of a great toe shall be considered a ten percent disability.

The loss of a great toe (one phalanx) shall be considered a five percent disability.

The loss of other toes shall be considered a four percent disability.

The loss of other toes (one phalanx) shall be considered a two percent disability.

The loss of all toes shall be considered a twenty-five percent disability.

The loss of forepart of foot shall be considered a thirty percent disability.

The loss of a foot shall be considered a thirty-five percent disability.

The loss of a leg shall be considered a forty-five percent disability

The loss of thigh shall be considered a fifty percent disability.

The loss of thigh at hip joint shall be considered a sixty percent disability.

The loss of a little or fourth finger (one phalanx) shall be considered a three percent disability.

The loss of a little or fourth finger shall be considered a five percent disability.

The loss of ring or third finger (one phalanx) shall be considered a three percent disability.

The loss of ring or third finger shall be considered a five percent disability.

The loss of middle or second finger (one phalanx) shall be considered a three percent disability.

The loss of middle or second finger shall be considered a seven percent disability.

The loss of index or first finger (one phalanx) shall be considered a six percent disability

The loss of index or first finger shall be considered a ten percent disability.

The loss of thumb (one phalanx) shall be considered a twelve percent disability.

The loss of thumb shall be considered a twenty percent disability.

The loss of thumb and index fingers shall be considered a thirty-two percent disability.

The loss of index and middle fingers shall be considered a twenty percent disability.

The loss of middle and ring fingers shall be considered a fifteen percent disability.

The loss of ring and little fingers shall be considered a ten percent disability.

The loss of thumb, index and middle fingers shall be considered a forty percent disability.

The loss of index, middle and ring fingers shall be considered a thirty percent disability.

The loss of middle, ring and little fingers shall be considered a twenty percent disability.

The loss of four fingers shall be considered a thirty-two percent disability.

The loss of hand shall be considered a fifty percent disability.

The loss of forearm shall be considered a fifty-five percent disability.

The loss of arm shall be considered a sixty percent disability.

Loss of Sight

The total and irrecoverable loss of the sight of one eye shall be considered a thirty-three percent disability. For the partial loss of vision in one or both eyes, the percentages of disability shall be determined by the commission, using as a basis the total loss of one eye. W.Va. Code Section 23-4-6(f).

Loss of Hearing

The total and irrecoverable loss of the hearing of one ear shall be considered a twenty-two and one-half percent disability. The total and irrecoverable loss of hearing of both ears shall be considered a fifty-five percent disability.

For the partial loss of hearing in one or both ears, the percentage of disability shall be determined by the commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable, using as a basis the total loss of hearing in both ears. W.Va. Code Section 23-4-6(f).

Counsel Fees

Reasonable attorney’s fees will be available to the employee when the insurer or self-insured employer denies benefits to the employee without a reasonable basis to do so. The legal basis for a denial may be based upon any of the following:

The mere fact that an initial denial decision is eventually reversed or overturned upon appeal does not prove or imply that the denial decision was unreasonable. W.Va. C.S.R. Section 93-1-19.4.

Dependent Benefits

Granted to widow, widower or children under 18.

When occupational injury/disease contributed in any material degree to worker’s death, benefits shall be paid in the same amount that was paid or would have been paid the deceased employee for total disability had he/she lived.

If a Claimant on PTD dies from a cause unrelated to the work injury, their dependents are entitled to 104 weeks.

Medical Benefits

Under West Virginia Code of State Rules Title 85, Series 20, the cost and quantity of medical benefits are regulated. These regulations provide extensive, and injury-specific limitations on what treatment is reasonable, and what amount of treatment is reasonable. Failure of a medical provider to comply with those regulations may entitle the employer/insurer to a suspension of payment of medical benefits provided by a particular provider.

SUBROGATION OR CREDIT

General Rule

For injuries occurring, in whole or in part, after January 1, 2006, the insurance carrier or self-insured employer will be allowed statutory subrogation against indemnity and medical benefits for any amounts received by the employee as a result of an action against a third-party based on the work injury. W.Va. Code Section 23-2A-1(b)(1). The subrogation does not apply to payments from any insurance paid for by the employee on their own behalf. W.V. Code Section 23-2A-1(e).

Duty to Protect Employer

The Workers’ Compensation Act places an obligation on the employee, the employee’s representative and the employee’s attorney to give reasonable notice to the insurer or self-insured employer of any actions against a third-party related to the work injury, and before the disbursement of any third-party recovery. If the employee, the employee’s representative or the employee’s attorney fail to protect the rights of the insurer or the self-insured employer, the employee and their attorney lose the right to retain attorney’s fees and costs out of the subrogation amount. Additionally, the insurer or self-insured employer will have a cause of action for the entire amount paid in workers’ compensation benefits, including attorney’s fees for the cause of action. W.Va. Code Section 23-2A-1(e).

ATTORNEYS

Certifying Organization

All attorneys must be licensed in accordance with the West Virginia Supreme Court and the West Virginia State Bar Association.

Required Documentation

WVCLE credits must all be approved by the West Virginia Continuing Legal Education organization.

CLAIMS PROFESSIONALS

Pursuant to W.Va. Code Section 23-2C-20, all private carriers and any employer that self-insures its risk and self-administers its claims shall comply with the rules promulgated by the board of managers. Said claims professionals shall exercise all authority and responsibility granted to the commission and provide benefits to persons who have suffered injuries or diseases covered under the Act.

LITIGATION AND APPEAL

Claims Administrator’s Decision

Upon receipt of the claimant’s application for benefits and the employer’s report of injury, the claims administrator has 15 days to accept or deny the claim. If additional information or investigation is required from either party, the time period may be tolled. However, an employee is permitted to file a statement with the Office of the Insurance Commissioner if the claims administrator fails to file a timely decision, and may impose appropriate penalties on the insurer or self-insured employer.

In addition to consideration of the factual circumstances of the case, and whether a compensable injury may exist, claims administrators are required to consider the following factors in determining whether a claim should be accepted:

1)       Whether the claimant had a scheduled shutdown beginning within one (1) week of the date of the [workers’ compensation] filing;,

2)       Whether the claimant received notice within sixty (60) days of the filing that his or her employment position was to be eliminated, including, but not limited to, the claimant’s worksite, a layoff or elimination of the claimant’s employment position;

3)       Whether the claimant is receiving unemployment compensation benefits at the time of the [workers’ compensation] filing;

4)       Whether the claimant has received unemployment compensation benefits within sixty (60) days of the filing;

5)       Whether the claimant failed to give immediate notice of the injury to the employer.

W. Va. Code §23-4-1c(a)(2);W.Va. C.S.R. § 85-1-3.1.

None of these factors is dispositive, in and of itself, but they all must be considered and given probative value in determining compensability.

After considering those factors, the claims administrator is required to issue a written notice of their decision. Although there is no specific form for the decision notice, the notice should clearly be identified as a “Claim Decision” and should clearly state whether the claim has been accepted or denied. The Claim Decision must also include information regarding the length of time permitted for the employee to file a protest (60 days), and the address of the Office of Judges, to whom all protests must be sent.

If the claim is accepted, the notice should clearly state the terms of the acceptance (i.e. whether the acceptance is final or is temporary and pending further investigation) and the accepted definition of the injury.

Denial orders may be corrected within two (2) years of the initial order denying the claim. Acceptances (except those that are temporary and pending further development) cannot be later changed to a denial.

Workers’ Compensation Judge Proceedings

Office of Judges

The Office of Judges is a branch of Office of the Insurance Commissioner of West Virginia, and is primarily responsible for adjudicating protests from the claims decisions of workers’ compensation claims administrators.

Appointment of Workers’ Compensation Judges

The Chief Administrative Law Judge is appointed for four-year terms, and is responsible for appointing and employing other Administrative Law Judges, as necessary to properly conduct a system of administrative review. W.Va. Code Section 23-5-8(b)-(c).

Qualifications of Administrative Law Judges

The Chief Administrative Law Judge shall be admitted to practice law in the state of West Virginia and shall have had at least four years of experience as an attorney. All other Administrative Law Judges in the Office of Judges shall be admitted to practice law in the state of West Virginia and shall have had at least two years of experience as an attorney. W.Va. Code Section 23-5-8(b)-(c).

Procedure

Upon receipt of a protest, the Office of Judges is required to issue an order defining when the time frame for submission of evidence on the merits of the claim will come to a close. The automatic time frame order will outline a date for the closing of evidence that will be between 45 and 300 days from the date of the order, depending on the type of protest filed. Time-frame orders will be issued as follows:,

The claimant may, within 15 days of the filing of the protest, request expedited adjudication. Upon such a request, the OOJ will set a hearing date, and the time period for filing evidence will be truncated to end on the date of the hearing.

Generally speaking, the litigation will be limited to the period provided under the Automatic Time Frame Order for the submission of evidence, but can be extended for good cause shown.

The parties are permitted to submit written closing arguments in favor of their position. The written argument must be submitted within 10 days of the closing of the evidentiary record. Such argument can be submitted after the 10-day period, but will then only be considered at the Judge’s discretion.

At the expiration of the 10-day period following the closing of evidence, a Motion to Submit will be issued, and the Judge must issue their decision within 90 days of the issuance of the Motion to Submit.

Reasoned Decision

The Judges are not strictly bound by the rules of evidence, but evidence used in support of a decision must be sufficiently competent.

Workers’ Compensation Board of Review

General Rule

The Worker's Compensation Board of Review (BOR) hears appeal from the Office of Judge’s decisions. The parties have thirty (30) days from notice of the Office of Judge’s decision to file an appeal with the BOR.

Scope of Review of WCBOR

The Board of Review is limited to consideration of the record of the proceedings before the Office of Judges.

Under the West Virginia Code, the Board of Review shall, reverse, vacate or modify the order or decision of the administrative law judge if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative law judge’s findings are:

1.        In violation of statutory provisions; or

2.        In excess of the statutory authority or jurisdiction of the administrative law judge; or

3.        Made upon unlawful procedures; or

4.        Affected by other error of law; or

5.        Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or

6.        Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

W.Va. Code Section 23-5-12.

Supreme Court

Jurisdiction

The jurisdiction of the Supreme Court in reviewing a decision of the Worker's Compensation Board of Review will vary, depending on the procedural history of the case in question.

Under W.Va. Code Section 23-5-15(c), if the decision of the Board of Review is an affirmation of the decision of the Office of Judges, “the decision of the board may be reversed or modified by the Supreme Court of Appeals only if the decision is in clear violation of constitutional or statutory provisions, is clearly the result of erroneous conclusions of law, or is based upon the board’s material misstatement or mischaracterization of particular components of the evidentiary record.”

Under W.Va. Code Section23-5-15(d), if the decision of the Board of Review is a reversal of the decision of the Office of Judges, “the decision of the board may be reversed or modified by the Supreme Court of Appeals only if the decision is in clear violation of constitutional or statutory provisions, is clearly the result of erroneous conclusions of law, or is so clearly wrong based upon the evidentiary record that even when all inferences are resolved in favor of the board’s findings, reasoning and conclusions, there is insufficient support to sustain the decision.”

Under no circumstance may the Supreme Court “conduct a de novo re-weighing of the evidentiary record”. W.Va. Code Section 23-5-15(c)-(d).

Appeal to Supreme Court

The parties have thirty (30) days from the date of a final order of the Board of Review within which to file an appeal with the West Virginia Supreme Court. As there is no intermediate appellate court in West Virginia, the Supreme Court is the only and last level of review beyond the Board of Review.

SETTLEMENT

Mediation

Mediation is not mandatory, but may be ordered by the Office of Judges based on its own motion, or the motion of one of the parties. Mediation does not toll the evidentiary deadlines, as set in the Automatic Timeframe Order. The parties may select their own mediator, or may rely on the Office of Judges to choose a mediator from their list of approved mediators. The parties are responsible for compensating the mediator. W.Va. C.S.R. Section 93-1-17.

Settlement

The parties are free to settle at any time. However, the medical portion of a non-orthopedic injury cannot be settled.

INSURANCE

General Rule

In 2005 the State of West Virginia approved the privatization of the State Fund. Pursuant to the passage of Senate Bill 1004, which became effective January 29, 2005, the West Virginia Workers’ Compensation market was privatized. The State fund had previously been the sole workers’ compensation provider. From January 1, 2006 until July 1, 2008 the West Virginia Employer’s Mutual Insurance Company, which is known as Brick Street Insurance, was the sole workers’ compensation insurer in West Virginia. The West Virginia Workers’ Compensation Commission regulatory functions were transferred to the West Virginia Offices of the Insurance Commission once the Workers’ Compensation Commission was terminated. On July 1, 2008, the market opened for compensation and the former Workers’ Compensation Commission was terminated. The West Virginia Workers’ Compensation insurance market was available to all licensed carriers authorized to sell workers’ compensation insurance on July 1, 2008

Particular Requirements

Effective upon termination of the commission, all subscriber policies with the commission shall novate to the company and all employers shall purchase workers’ compensation insurance from the company unless permitted to self-insure their obligations. The company shall assume responsibility for all new fund obligations of the subscriber policies which novate to the company or which are insured thereafter. Each subscriber whose policy novates to the company shall also have its advanced deposit credited to its account with the company. Each employer purchasing workers’ compensation insurance from the company has the right to designate a representative agent or agent to act on its behalf in any and all matters relevant to coverage and claims administered by the company.

General Rule Where Employer is Uninsured

In addition to any other liabilities, the Insurance Commissioner may impose an administrative penalty of not more than $10,000 against an employer if the employer fails to provide mandatory coverage required. W.Va. Code Section 23-2C-8(d).

Damages by Action at Law Where Employer is Uninsured

Any employer who has failed to provide mandatory coverage required by the provisions of this chapter is liable for all payments made and to be made on its behalf, including any benefits, administrative costs and attorney’s fees paid from the fund or incurred by the Insurance Commissioner, plus interest calculated in accordance with the provisions of Section 13, Article 2. W.Va. Code Section 23-2C-8(d).

Uninsured Employers Fund

The insurance Commissioner shall assess each private carrier and may assess self-insured employers an amount to be deposited in the Workers’ Compensation Uninsured Employer Fund. The assessment may be collected by each private carrier from its policyholders in the form of a policy surcharge.