Table of Contents
- THE WV WORKERS’ COMPENSATION SYSTEM
- INITIAL APPLICATION/REPORT OF INJURY/CLAIM
- INITIAL APPROVAL/DENIAL OF CLAIM
- BENEFIT TYPES
- Medical Benefits
- Temporary Total Disability
- Permanent Partial Disability
- Non-Awarded Partial
- Permanent Total Disability
- Vocational and/or Physical Rehabilitation
- Dependents’ Benefits
- OCCUPATIONAL PNEUMOCONIOSIS CLAIMS
- HEARING LOSS CLAIMS
- RE-OPENINGS and MODIFICATIONS
- THE LITIGATION/APPEAL PROCESS
- ALTERNATIVES TO LITIGATION: MEDIATION & SETTLEMENT
- ATTORNEY FEES
- WV WORKER’S COMPENSATION CASE LAW
- WHICH STATUTE APPLIES?
- RE-OPENINGS and MODIFICATIONS
- OCCUPATIONAL PNEUMOCONIOSIS
- BURDEN OF PROOF
I. THE WV WORKERS’ COMPENSATION SYSTEM
Following the lead of many other states, West Virginia adopted its first workers’ compensation statutes in 1913. Prior to this enactment, the only means for injured workers to get compensation for lost wages and medical bills was by suing the employer in negligence. Few injured workers had financial resources available to bring a lawsuit. Employers could avoid liability with such defenses as assumption of risk, contributory negligence, and the fellow servant rule.
Workers’ compensation provided a system in which employers agreed to pay lost wages and medical bills for injured employees regardless of fault, and the injured employees, in turn, gave up their right to sue. “The Act [wa]s designed to compensate injured workers as speedily and expeditiously as possible in order that injured workers and those who depend upon them for support sh[ould] not be left destitute during a period of disability. The benefits of this system accrue[d] both to the employer, who [wa]s relieved from common-law tort liability for negligently inflicted injuries, and to the employee, who [wa]s assured prompt payment of benefits.” Meadows v. Lewis, 172 W. Va. 457, 469, 307 S.E.2d 625, 638 (1983).
From its earliest inception, workers’ compensation in West Virginia was a state-run system. In 2003, the legislature eliminated the Workers’ Compensation Division of the Bureau of Employment Programs, and reconstituted it as the Workers’ Compensation Commission (“WCC”), tasked with evaluating the viability of privatizing workers’ compensation in the state. In turn, the WCC was eliminated in 2005, with regulation of the workers’ compensation system transferred to the Office of the Insurance Commissioner. The legislature transitioned the system from a wholly public system, to a combination public/private system, with a single private insurance carrier, to a system made up of over 270 private workers’ compensation insurance carriers.
The following materials are roughly divided into three sections: The first section deals with procedures, coverage, and other general matters. The second section presents the statutory and case law authority controlling claim decisions. The third section provides sample forms used in the processing of workers’ compensation claims and litigation. It is not intended that this cover all nuances of WV Workers’ Compensation law; it merely provides an overview of basic principles. Claims with a date of injury prior to July 1, 2005 are now considered “Old Fund” claims, administered by the Office of the Insurance Commissioner, through a third-party administrator. While many of these claims linger, this volume is written presuming that a new attorney would be handling claims with dates of injury after July 1, 2005.
The statutes governing workers’ compensation, which provides medical and financial benefits to workers injured “in the course of” and “resulting from” their work, are found in W.Va. Code § 23-1-1, et. seq. For traumatic injuries, there also must have been an “isolated fortuitous event” which gave rise to the injury. An “injury” includes traumatic or repetitive motion injuries, as well as diseases caused by certain employment conditions (i.e. hearing loss, or dust-related lung diseases). It should be noted that dust-related lung disease claims (Occupational Pneumoconiosis) are covered by slightly different procedural and disability determination rules.
Coverage by employers is generally mandatory. Only employers who employ domestic servants, five or fewer full time agricultural workers, out-of-state workers, or three or fewer employees for less than ten days per quarter are exempt from coverage. In addition, churches, professional sports teams, employers of certain volunteer municipal emergency workers, and federal Longshore and Harbor Workers’ Compensation Act eligible are statutorily exempt employers. These employers may opt to provide workers’ compensation coverage for their employees, but are not required to do so.
Employers may purchase workers’ compensation insurance from among a variety of private carriers. If the employer can demonstrate sufficient fiscal responsibility, it may self-insure. Should the employer not be able to secure insurance through the private market, there is an “Assigned Risk Plan” available. Premium amounts are based upon a percentage of gross wages payroll, and is modified by the risks associated with the type of employment and the safety history of the particular employer. Ratings data are set by the National Council on Compensation Insurance (“NCCI”).
Failure to pay premiums subjects the employer to suits for negligently caused injury and deprives the employer of certain common law defenses. Failure to pay may also subject the employer to criminal charges. In addition, the employee of the delinquent employer can still draw workers’ compensation benefits.
The immunity from law suit granted to the employer in good standing does not extend to acts of deliberate intention by the employer, as set forth in § 23-4-2(d)(2). The employer must act with such utter disregard for employee safety that severe injury was almost a foregone conclusion. However, insurance against deliberate intent suits is available as separate coverage.
Benefits available to injured workers (claimants) include payment of medical bills, payment of wages for the time when the employee is unable to work due to the injury, compensation for any permanent impairment of the affected body part or total disability, vocational retraining, physical rehabilitation, and/or monthly compensation to surviving dependents of workers killed as a result of employment.
INITIAL APPLICATION/REPORT OF INJURY/CLAIM
Only claimants who apply for benefits may receive benefits. Application is made by completing and submitting to the carrier an “Employees’ and Physicians’ Report of Injury” (or similarly titled) form. The claimant completes the top part of the form describing how and when he was injured. The attending physician completes the bottom part of the form and describes the nature of the condition, the initially anticipated length of disability, and her opinion as to whether or not the condition was caused by an occupational injury/disease. Within five (5) days after the employer has been notified of the injury (by the employee or the carrier), the employer must complete and submit to the carrier an “Employers’ Report of Injury” (or similarly titled) form. In addition to information about the employee and his injury, this form includes wage and lost time information and allows the employer to give reasons to question the claim. Failure by the employer to submit the form in a timely fashion does not deny the claimant benefits.
The law requires workers to report any injury to the employer immediately or as soon thereafter as is practicable. Failure to immediately give notice to the employer of the injury weighs against a finding of compensability in the weighing of the evidence and dilutes the credibility and reliability of the claim. However, failure to make a separate immediate report to the employer is not generally grounds to defeat a claim. Submitting the Report of Injury form to the employer generally suffices as notice to the employer. It is important to remember that notice of an incident is not the same as notice of an injury, though notice of an injury may be contained in a notice of incident. Not all incidents result in injuries.
There are different statutes of limitations for filing, depending upon the nature of the claim. For traumatic injuries, claims must be filed within six months of the date of injury. Claims for occupational disease other than occupational pneumoconiosis (“OP”) must be filed within three years of the date of last harmful occupational exposure, or three years from the date the claimant was told by his physician that he had an occupational disease or should have reasonably known his condition was occupationally related, whichever occurs last. For OP claims, application must be made “within three years from and after the last day of the last continuous period of sixty days or more during which the employee was exposed to the hazards of occupational pneumoconiosis or within three years from and after a diagnosed impairment due to occupational pneumoconiosis was made known to the employee by a physician.” Dependents of deceased employees whose deaths were as a result of an occupational injury or disease must file within six months of the date of death for traumatic injuries, one year of the date of death for occupational diseases other than OP, or within two years of the date of death for OP claims.
INITIAL APPROVAL/DENIAL OF CLAIM
Once the application is received by the Claim Administrator (CA) for the carrier or self-insured employee, the CA must decide whether to approve or deny the claim within fifteen (15) working days. See W.Va.C.S.R.85-1-110.1 (2009). This period may be tolled if the carrier needs more information to decide the matter, to allow the CA to investigate. The CA may “conditionally approve” the claim during the investigation, allowing benefits to be paid. Should the CA ultimately deny the claim, the claimant would be responsible for reimbursing the carrier for any benefits paid pursuant to the “conditional approval.” The basis for the decision whether to approve or deny the claim is whether or not the injury occurred “in the course of” and “resulting from” the employment.
The initial decision (“order”) is sent in writing to the claimant, employer, and any counsel of record. If the order approves the claim, it should list the approved condition(s), including ICD-10 diagnosis codes, as well as any that are not approved. The order should also explain whether or not temporary disability benefits will be paid. If the order denies the claim, it should give the reason for the rejection, and should list the documents on which the decision was based. Finally, the order must notify the claimant of his/her protest rights. (W.Va. Code § 23-5-1 (2009).
Medical Benefits: Medical benefits – sums for health care services, durable medical and other goods and other supplies and medically related items as may be reasonably required – are paid to the injured employee or to medical providers registered with the Offices of the Insurance Commissioner (“OIC”). The maximum amount of benefits is fixed according to a schedule developed by the OIC, or established according to a Managed Care Plan. Charges in excess of the scheduled amounts may not be passed on to the claimant by the provider.
In addition to limiting the fees providers can charge for health care services and supplies, OIC has established treatment guidelines for nearly every type of injury/condition. These are found in “Rule 20,” OIC’s Exempt Legislative Rule on “Medical Management of Claims, Guidelines for Impairment Evaluations, Evidence, and Ratings and Ranges of Permanent Partial Disability Awards.” Treatment outside these guidelines should not be authorized unless the case is special and requires additional treatment beyond the norm. W.Va. C.S.R. 85-20-et.seq (2006)
Many forms of treatment require prior-authorization. Treatment such as inpatient hospital stays subsequent to the date of injury, transfers between hospitals, surgeries, some TENS units and supplies, psychiatric treatment (excluding an initial consultation), outpatient pain management, hearing aids, vision services, physical and vocational rehabilitation, and dental procedures require prior review and authorization before services are rendered and reimbursement made. Although prior authorization may not be required for all treatment, medical services will be reviewed retrospectively to determine medical necessity and relationship to the compensable injury.
Claims may be re-opened for medical treatment. However, if the claimant has gone more than five years without receiving any compensation-covered treatment, no further medical benefits will be paid. It should be noted that OP claims are never closed for medical benefits. See W.Va. Code § 23-4-16 (2005) W.Va. Code § 23-4-8d (2009)
Temporary Total Disability (TTD): TTD benefits are paid to the claimant for the time the injury prevented the claimant from working, from the date of the injury until he returns to work, is released to return to work by the treating physician, or there has been a finding of maximum medical improvement (“MMI”), whichever occurs earliest. No TTD benefits are paid if the period off work is less than four days. The first three days are not paid unless the injury results in at least seven days of lost time. TTD benefits will not be approved for more than 90 days at a time; however, if the claimant continues to be disabled from work, additional periods not to exceed 90 days each may be authorized. In no event is an aggregate TTD award for a single injury to be for a period exceeding 104 weeks. No TTD benefits are available for noise-induced hearing loss or OP claims.
Should TTD benefits continue more than 120 days, the claimant may be sent for an independent medical examination (“IME”) to ascertain whether he has reached MMI, or whether continued, additional or different treatment is recommended.
The benefit rate for TTD is 66 2/3% of the worker’s average weekly wages (“AWW”), not to exceed 100%, nor be less than 33 1/3%, of the AWW in West Virginia, as established by Workforce West Virginia. The worker’s AWW is computed based on the daily rate of pay at the time of the injury or the weekly average derived from the best of the prior four quarters of earnings, whichever is more favorable to the worker.
A carrier can terminate TTD benefits if it receives evidence suggesting that the claimant has reached MMI, has been released to return to work, has returned to work, has taken other work, or is otherwise no longer temporarily and totally disabled. Before TTD benefits can be terminated, the claimant must be given 30 days to rebut the evidence submitted. TTD benefits are suspended during the 30 day rebuttal period.
Permanent Partial Disability (PPD): If, after the claimant has reached MMI, been released to return to work, or returned to work, some permanent impairment of the injured body part remains, the injured worker is entitled to compensation for the percentage of impairment to his physical functioning as compared to his whole-person. Compensation is based on an amount equal to 4 weeks of TTD benefits per each percent of impairment. However, if the claimant has been released to return to work, but the employer will not accept the claimant back, and the employer has not replaced the claimant with another worker, then the PPD benefits are based on 6 weeks of TTD benefits per each 1% of impairment.
Impairment ratings generally are to be determined by the Range of Motion models in the American Medical Association’s “Guides to the Evaluation of Permanent Impairment, Fourth Edition,” as modified by Rule 20. However, certain impairment percentages are set by statute – such as when impairment is based on the amputation of a body part. “The Guides” also is not used for assessing OP impairment, noise-induced hearing loss, and mental or emotional loss. Although any examination or report not conforming to “The Guides” is not invalid on its face, deviations from “The Guides” affect the weight of the rating as evidence of permanent impairment.
The percentage of permanent impairment may be rated by either the treating physician or an independent medical examiner. An impairment rating by the treating physician for up to 15% PPD is automatically awarded. However, a treating physician’s impairment rating for more than 15% is entitled to a second opinion by an independent medical examiner.
If the claim was closed without an impairment rating or PPD award, the claimant must request an impairment rating within five years of the closure. Only two such requests may be filed during that period. If a PPD award was made, any request for a new impairment rating must be made within five years of the date of the initial award, also limited to two such requests.
If, over time, multiple PPD awards are made for the same body part, as a result of subsequent reinjury or other worsening of impairment, any prior award will be deducted from a subsequent PPD award. Cumulative awards for a single body part may not exceed the statutory limits for amputation of that body part. For example, compensation for a loss of a finger, wrist injury, elbow injury, plus shoulder injury may not exceed 60%, the statutory limit for the loss of the entire arm. It should also be noted that impairment that is attributable to a non-work-related condition, such as degenerative conditions or injuries occurring outside of the employment, will not be compensated. Compensation will only be awarded for that portion of impairment fairly attributable to the work-related injury.
Non Awarded Partial (NAP): These are stop-gap benefits paid to the claimant after his TTD benefits have been suspended until the insurer can calculate and award PPD benefits. They are at the same rate as PPD benefits and are an advance payment of the PPD benefits. As such, any NAP benefits paid are deducted from the initial PPD award.
Permanent Total Disability (PTD): If an injury, or combination of injuries, causes a claimant to be permanent1y unable to work, he may be entitled to monthly benefits – at the TTD benefit rate – until age 70. PTD results when the claimant is rendered unable to engage in substantial gainful activity requiring skills or abilities that can be acquired or are comparable to those of gainful activities previously engaged in regularly over a substantial period of time. Although the comparability of pre-disability to post-disability income is not a factor to be considered, the availability of employment within 75 miles of the claimant’s home or the distance to his pre-injury employer, whichever is greater, is to be considered.
“The Guides” discusses the distinction between impairment and disability. Impairment, as defined by the World Health Organization, is any loss or abnormality of psychological, physiological, or anatomical structure or function. In “The Guides,” impairments are defined as conditions that interfere with an individual’s activities of daily living, which include self-care and personal hygiene, eating and preparing food, communication, maintaining one’s posture, walking and traveling, caring for the home and personal finances, recreational and social activities, and work activities.
Disability, on the other hand, may be defined as an alteration of an individual’s capacity to meet personal, social or occupational demands, or statutory or regulatory requirements, because of an impairment. Disability refers to an activity or task that the individual cannot accomplish, and arises out of the interaction between impairment and external requirements. Disability may be thought of as the gap between what a person can do and what a person needs or wants to do.
An impaired individual is not necessarily disabled. Consider this example: Loss of the distal phalanx of the little finger of the right hand will impair the functioning of the digits and hand of both a concert pianist and a bank president; however, the bank president is less likely to be disabled than the pianist.
The loss of both eyes, both hands, both feet, or one hand and one foot is presumed to be totally disabling for workers’ compensation purposes. A rebuttable presumption also exists when aggregate PPD awards total 85% whole-person impairment. However, impairment based on carpel tunnel syndrome (“CTS”) is not included in calculating aggregate impairment. A claimant may not even apply for PTD benefits unless he has at least 50% permanent partial disability medical impairment or 35% statutory impairment. Before PTD benefits may be awarded, a reviewing panel must confirm the 50% whole body or 35% statutory disability threshold impairment level.
The CA must continue to monitor PTD award recipients, and may periodically, after due notice to the claimant, reopen a claim for reevaluation of the continued need for PTD benefits. The CA may require the claimant to provide documentation of financial status, income level, physical activities, and medical condition; to appear under oath and answer questions; and may suspend or terminate PTD benefits if the claimant willfully fails to provide the information or appear as required. The CA also may reopen a claim for reevaluation when, in its sole discretion, it concludes that there exists good cause to believe that the claimant no longer meets the PTD eligibility requirements.
The CA may require the claimant to undergo an IME every year for the first 5 years of a PTD award, or until age 50 to confirm her ongoing permanent total disability. Thereafter, he/she may be required to submit to an IME every 3 years until age 70 when benefits cease.
Vocational and/or Physical Rehabilitation: If it is determined that a disabled employee can be physically and vocationally rehabilitated and returned to remunerative employment by the provision of rehabilitation services, the carrier is to develop and pay for a rehabilitation plan for the employee. It is the goal of rehabilitation to return injured employees to employment which is comparable in work and pay to that which the individual performed prior to the injury. If a return to comparable work is not possible, the goal of rehabilitation is to return the individual to alternative suitable employment, using all possible alternatives of job modification, restructuring, reassignment, and training, so that the individual will return to productivity with his or her employer or, if necessary, with another employer.
The first priority of rehabilitation is to return the claimant to the same employer in his pre-injury job. If that is not possible, the claimant is to be returned to the same employer in his pre-injury job with modifications. If that is not possible, the claimant is to be returned to the same employer in a different position. If that is not possible, the claimant is to be returned to the same employer in a different position with retraining. However, if there is no position with the same employer for which the claimant is qualified or can be made qualified, he is to be returned to a position for which no retraining is required with a new employer. Finally, if none of these options are possible, he is to be placed in a position with a new employer which requires retraining.
During the time that a claimant is not working but participating in an approved rehabilitation plan, he is paid TTD benefits. If the claimant is able to return to work while receiving rehabilitation, but his AWW are less than he was receiving pre-injury, he may receive temporary partial rehabilitation (“TPR”) benefits, calculated as 70% of the difference between the AWW of his old and new positions. The claimant may not receive both TTD and TPR benefits at the same time. TPR benefits for any single injury may not exceed 52 weeks unless they are associated with a vocational retraining program, in which case they may be extended for up to 104 weeks. TPR benefits are reviewed every 90 days and adjusted as necessary to reflect changes in the claimant’s AWW.
TPR benefits are also available to claimants who have at least 50% medical impairment or 35% statutory impairment, but who have been denied PTD benefits and continue to work in a lesser paying position. In such a case, TPR benefits will be paid for 4 years, in an amount necessary to ensure receipt of 80% of the pre-injury AWW in year 1, 70% of the pre-injury AWW in year 2, 60% of the pre-injury AWW in year 3, and 50% of the pre-injury AWW in year 4.
Dependents’ Benefits: When a compensable injury causes death, workers’ compensation will pay reasonable funeral expenses as established by OIC to the funeral home or person who advanced payment for funeral expenses.
When a compensable injury causes death, and the period of disability continued from the date of injury until the date of death, dependents may receive the amount of TTD benefits to which the injured worker was entitled, until the dependency ends: for a widow(er) until death or remarriage, for a child until age 18 (or 25 if a full time student), and for an invalid child as long as he remains an invalid. Dependents are jointly entitled to the benefit. If no such dependents exist, wholly dependent parents may receive the benefit until death. Otherwise, other wholly dependent persons (grandparents or invalid siblings) may receive benefits for 6 years.
When a claimant who was receiving PTD benefits dies other than due to the compensable injury, dependents may receive 104 times the weekly PTD rate in a lump sum or in periodic payments. When a claimant is entitled to a PPD award but dies before payment is made in full, dependents are entitled to any unpaid balance owing.
OCCUPATIONAL PNEUMOCONIOSIS CLAIMS
OP claims cover all lung diseases which are caused by inhalation of minute particles of dust. Most common of these are black lung and asbestosis. The procedural and disability determination processes are slightly different than those in traumatic injury claims. When applying for Workers’ Compensation benefits in OP claims, the employee, physician, and employer each have a special form. The forms ask for detailed information about exposures, lung/chest illnesses, work history, and other benefits received.
As stated earlier, the statute of limitations for filing a claim for OP is complicated. The application must be filed “within three years from and after the last day of the last continuous period of sixty days or more during which the employee was exposed to the hazards of occupational pneumoconiosis or within three years from and after a diagnosed impairment due to occupational pneumoconiosis was made known to the employee by a physician.” There is also a minimum time of exposure threshold for filing. The claimant must have been exposed to the OP dust hazards in the workplace for either two continuous years during the ten years preceding the date of last exposure, or a cumulative total of five years during the last fifteen years preceding date of last exposure. If the claimant was exposed for ten of the previous fifteen years, and he has a chronic respiratory disability, he is presumed to be suffering from work-related OP. This is a rebuttable presumption.
If a claimant has been exposed to OP hazards at multiple employers, only the last may be held accountable. Hence, the last employer for whom the claimant was exposed for as much as 60 days during the period of 3 years immediately preceding the date of last exposure at that employer may be charged entirely regardless of the degree of exposure elsewhere.
After an OP claim is filed, the carrier determines “non-medical” issues, including whether the claim was timely filed, whether exposure thresholds have been met, whether the claimant is entitled to a presumption of OP, and whether and to what extent multiple employers are chargeable. The carrier’s order on non-medical issues is protestable to the OOJ for a hearing on the matter. While an ALJ decision dismissing the claim is immediately appealable, an ALJ decision referring the claim to the OP Board is interlocutory and can only be appealed in conjunction with an appeal from a final order with respect to the findings of the OP Board.
Once the application is determined to be appropriately filed, the claim is referred to the OP Board for determination of impairment, if any. The OP Board consists of 5 licensed physicians with special knowledge of pulmonary diseases. At least one member must be a roentgenologist (radiologist). The OP Board may require the claimant to appear for physical examination and testing. The OP Board will conduct a hearing at which all medical evidence will be considered. Upon completion of the hearing, the OP Board prepares a report of its findings and decision for the carrier. Either party may object to the OP Board’s initial findings and conclusions. If so, the members of the OP Board joining in the findings and conclusions appear before the OOJ for a hearing. At the hearing, evidence to support or controvert the findings and conclusions of the OP Board is limited to examination and cross-examination of the members of the board and to the taking of testimony of other qualified physicians and roentgenologists.
If no objections are filed to the OP Board’s report, the findings and conclusions of a majority of the OP Board are taken as plenary and conclusive evidence. The carrier may then issue a protestable order setting forth the OP Board’s findings as to whether the claimant has OP and if so, the degree of medical impairment, if any. Impairment ratings are set forth in Rule 20. A diagnosis of OP alone is insufficient to entitle a claimant to PPD or PTD benefits.
HEARING LOSS CLAIMS
Occupational hearing loss claims may be caused by either single incidents of trauma or by long-term exposure to “hazardous noise.” As noted above, TTD benefits are not available for noise-induced hearing loss. PPD benefits are not available for tinnitus, psychogenic hearing loss, recruitment, or hearing loss above 3,000 hertz. The formulas for computing PPD percentages for monaural and binaural hearing loss are established by statute. Additional PPD may be granted for impairment of speech discrimination, if any.
As with OP, noise-induced hearing loss may be the result of exposure to hazardous noise from multiple employers. However, claim charges are allocated among employers where the claimant was exposed to hazardous noise for as much as 60 days during the three years immediately preceding the date of last exposure. The allocation is based upon the time of exposure with each employer, considering all the time of employment by each employer during which the claimant was exposed and not just the time within the three year period. This allocation is similar to that in OP claims.
RE-OPENINGS and MODIFICATIONS
Claims may be re-opened for benefits under certain circumstances if the request discloses cause for a further adjustment. Generally speaking, a claim in which the claimant receives ongoing care, will never close for medical treatment, and will therefore never need to be re-opened. However, re-openings for treatment and rehabilitation shall be denied in any claim in which medical treatment or rehabilitation services have not been rendered or durable medical goods or other supplies have not been received for a period of five years. To obtain further treatment or rehabilitation in a claim in which there has been no activity for a while, the claimant or physician need only file a request for authorization of such treatment or rehabilitation. There must be sufficient medical evidence that the current symptoms are a progression or aggravation of the claimant’s compensable condition or the request must disclose some other fact or facts not previously considered which would entitle the claimant to greater benefits than already received, or the request will be denied.
Claims may also be re-opened for TTD benefits. This frequently occurs when it is later determined that the compensable condition requires surgery, for which the claimant will need to be off work to recover. Again, there must be sufficient medical evidence that the reason the claimant cannot work is due to a progression or aggravation of the claimant’s compensable condition or some other fact or facts not previously considered which would entitle the claimant to greater benefits than already received. Any such re-opening must be requested within five years of claim closing if there was no PPD award or within five years of an initial PPD award. Any decision on the application must be made within thirty days.
When a claimant’s condition has progressed or been aggravated to a point that leads to additional permanent impairment, the claim also may be re-opened for purposes of reassessing PPD. The same five year limitations apply. If the re-opening request meets the progression/aggravation or other facts not previously considered standard, the claimant has the right to a new impairment evaluation. Any further award is not guaranteed, but is dependent on the findings of the IME.
If a claim re-opening results in a further PPD award which places the claimant above the PTD threshold, the claimant may request a PTD assessment. However, if a claimant has already been granted a PTD award, the claim may be re-opened to determine the claimant’s continued right to PTD payments. If there is good cause to believe that the claimant no longer meets the eligibility requirements (as stated at the time of the re-opening), the carrier may re-open the claim for reevaluation of the continuing nature of the disability and possible modification of the award. However, the law which was in effect on the claimant’s date of injury or date of last exposure, is the law applicable to his eligibility for permanent total disability benefits. The carrier may request such documentation as tax returns, financial records and affidavits demonstrating level of income, recreational activities, work activities, medications used and physicians or other medical or rehabilitation providers treating or prescribing medication or other services for the claimant. The carrier may take evidence, have the claimant evaluated, make findings of fact and conclusions of law and vacate, modify or affirm the original PTD award as the record requires.
While a claimant has the option to request a claim re-opening to obtain additional benefits, the employer has a similar option to seek a modification to suspend, modify, or end benefits. Like claimant’s request for re-opening, an employer’s request for modification must disclose cause for a further adjustment, and some fact or facts which were not previously considered which would entitle the employer to a modification of the prior award.
THE LITIGATION/APPEAL PROCESS
Generally speaking, the only party who may protest a carrier’s decision is the claimant. An employer may protest (1) decisions incorporating findings made by the OP Board, (2) decisions made in Old Fund claims, or (3) decisions entered pursuant to a treating physician’s PPD award recommendation. Appeals of CA decisions go first to the Office of the Insurance Commissioner’s Office of Judges (“OOJ”), which is composed of Administrative Law Judges (“ALJs”). Claimants have sixty (60) days within which to file an appeal (“protest”) with the OOJ. In addition to the OOJ, copies of any protest must be sent to the employer and carrier or self-insured employer’s claim administrator. An additional 60 days to protest can be obtained when good cause for the delay is shown. Failure to timely file is a jurisdictional bar to litigation. After filing the protest, all evidence, correspondence, and communications about the issue in litigation are with the Office of Judges. Copies of all communications must be sent to the employer and the carrier.
The Office of Judges will acknowledge the filing of a protest and will set a time limit – Acknowledgement and Automatic Time Frame Order (“TFO”) – for the filing of all evidence. The deadlines set forth in the TFO vary depending on the matter in issue – from as little as 45 days for a claimant’s protest to a treatment decision, to as much as 180 days for the claimant and 360 days for the employer in PTD entitlement cases. Motions for extending the TFO must be filed within ten (10) days before the TFO expires, stating why the extension is needed and how much additional time is requested. Within ten (10) days after the TFO expires, the parties may submit closing arguments. Once all evidence and arguments have been filed, the issue is submitted to an ALJ for decision. The OOJ issues a notice of all the evidence received; if there are mistakes, notify the assigned ALJ immediately. The ALJ will then issue a written decision.
An aggrieved party may appeal the ALJ’s decision by filing a Notice of Appeal to the Board of Review (“BOR”) within 30 days of the date of receipt of the decision. The BOR will acknowledge the appeal and inform the parties of the briefing schedule – the appellant’s brief is due 30 days from receipt of the acknowledgement; the appellee’s brief is due 30 days from receipt of the appellant’s brief. No new evidence will be accepted. Oral arguments are not required, but are available upon request. See W.Va.C.S.R. 102-1-et, seq.
The ALJ’s decision may only be reversed, vacated or modified if the substantial rights of the petitioner has been prejudiced based on certain grounds set forth by statute: the ALJ’s findings are (1) in violation of statutory provisions; (2) in excess of the statutory authority or jurisdiction of the ALJ; (3) made upon unlawful procedures; (4) affected by other error of law; (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. The BOR will issue a written decision based on the record from the OOJ, the parties’ written briefs, and any oral arguments made.
Any party aggrieved by the BOR’s decision may appeal to the Supreme Court of Appeals within 30 days. To perfect the appeal, the appellant/petitioner must file with the Court a docketing statement, petitioner’s brief, and record appendix pursuant to Rule 12 of the Revised Rules of Appellate Procedure. The BOR will not transfer the record to the Court; this is the responsibility of the parties. No new evidence will be considered. Within 30 days of receipt of the appellant/petitioner’s brief, the appellee/respondent may file either a respondent’s brief or a summary response. The appellee/respondent may also file additional relevant documents from the record not already included in the appellant/petitioner’s appendix. However, no cross-assignments of error are permitted. The appellant/petitioner may file a reply brief within 20 days of receipt of the appellee/respondent’s brief or summary response.
After all briefs have been filed, the Supreme Court will (1) decide the case on the merits without oral argument; (2) set the case for oral argument and decide the case on the merits; or (3) issue an appropriate order after considering any written and oral arguments made by the parties (e.g. the appeal is premature because it is an appeal from an interlocutory decision, or the appeal is dismissed because the case has been settled.) Cases determined to require oral argument will be placed on either the Rule 19 or Rule 20 docket. Cases set for Rule 19 arguments (limited to ten (10) minutes per side) include, but are not limited to: (1) cases involving assignments of error in the application of settled law; (2) cases claiming an unsustainable exercise of discretion where the law governing that discretion is settled; (3) cases claiming insufficient evidence or a result against the weight of the evidence; (4) cases involving a narrow issue of law; and (5) cases in which a hearing is required by law. Cases suitable for Rule 20 argument (limited to 20 minutes per side) include, but are not limited to: (1) cases involving issues of first impression; (2) cases involving issues of fundamental public importance; (3) cases involving constitutional questions regarding the validity of a statute, municipal ordinance, or court ruling; and (4) cases involving inconsistencies or conflicts among the decisions of lower tribunals. The Supreme Court is the final level of appeal.
While one issue is pending anywhere in the litigation process, the carrier may continue to administer the claim. Each order of the carrier is protestable and multiple issues may, at any time, be at different points in the litigation process. When multiple issues are in litigation, it is important to carefully document for which issue evidence/argument is being submitted. The law permits mediation as an alternative to the litigation process described above.
ALTERNATIVES TO LITIGATION: MEDIATION & SETTLEMENT
Mediation: The parties may agree to mediate a disputed issue rather than proceed through the litigation process described above, or a case may be referred to mediation by the ALJ on his or her own motion, or on the motion of a party. If an issue is ordered to mediation, the OOJ will assign a mediator from a list of qualified mediators maintained by the West Virginia State Bar. The parties may agree that the result of the mediation is binding. Upon entering into mediation, the OOJ will stay further proceedings on that issue.
Mediation is conducted in an informal manner and without regard to the formal rules of evidence and procedure. Decision-making authority remains with the parties; the mediator has no authority to render a judgment on any issue of the dispute. The role of the mediator is to encourage and assist the parties to reach their own mutually acceptable settlement by facilitating communication, helping to clarify issues and interests, identifying what additional information should be collected or exchanged, fostering joint problem-solving, exploring settlement alternatives, and other similar means. The procedures for mediation are extremely flexible, and may be tailored to fit the needs of the parties to a particular dispute. Within ten (10) days after mediation is completed or terminated, the mediator will report the outcome of the mediation. With the consent of the parties, the mediator may identify any pending motions, discovery, or issues which, if resolved, would facilitate the possibility of settlement. In the event of unsuccessful mediation, the OOJ would lift the stay and litigation would proceed.
Settlement: Any and all issues in a claim, at any stage in the administrative or appellate process, and whether or not contested. However, in order for a claimant to settle medical benefits for non-orthopedic occupational disease claim, the claimant shall be represented by an attorney and may be resolved by negotiated settlement between the parties. Except in cases of fraud, no issue that is the subject of an approved settlement agreement may be reopened by any party, including the carrier. The injured worker has five (5) business days to revoke an executed settlement agreement. The Insurance Commissioner may void settlement agreements entered into by an unrepresented injured worker which are determined to be unconscionable pursuant to criteria established by rule of the commissioner.
Any settlement agreement may provide for a lump-sum payment or a structured payment plan, or any combination thereof, or any other basis as the parties may agree. Pursuant to statute, the following will be deducted from any settlement award: amounts owed for child or spousal support, overpayments (unless otherwise agreed by the parties), any award of monetary benefits entered by the OOJ, the BOR or the Supreme Court of Appeals after the date the settlement agreement was signed by the necessary parties to the extent such awards involve the same issues as the settlement, or if the settlement was a full and final settlement of all issues involved in the claim. If the amount of any such award is greater than the agreed upon settlement amount, the claimant’s recovery shall be limited to the amount specified in the settlement agreement. If a self-insured employer fails to make an agreed-upon payment, the commission assumes the obligation to make the payments and recovers the amounts paid or to be paid from the self-insured employer and its sureties or guarantors or both as provided by statute.
The terms of a settlement agreement do not constitute an admission against interest by any party. All communications and correspondence between the parties during settlement negotiations are confidential and may not be used against a party if a settlement is not reached.
Attorney fees for the representatives of employers/carriers are regulated only by the marketplace. However, attorney fees for claimants’ representatives are limited by statute. A claimant’s attorney’s fee is limited to 20% of any “award” granted. The fee is further limited to no more than 20% of the benefits to be paid during a period of 208 weeks. Any interest on disability or dependent benefits is not considered part of an award in determining any such attorney’s fee. In 2009, the West Virginia Supreme Court interpreted this limitation on fees to prohibit an attorney from charging a fee based upon the settlement of medical benefits. The Legislature quickly enacted an additional subsection providing that on a final settlement, an attorney may charge a fee limited to 20% of the total value of the medical and indemnity benefits. When combined with any fees previously charged or received by the attorney for PPD or PTD benefits, the total fees are not to exceed 20% of an award of benefits to be paid during a period of 208 weeks.
Because of the nature of compensation claims and litigation concerning claims, multiple awards may be made to a claimant during the history of a single claim. The 208 weeks limitation is not cumulative for each claim, but for each award in a claim; thus, if any single award covers more than 208 weeks, both retroactively and prospectively, the 208 weeks limit is enforced. Syl. pt. 6, Hinerman v. Levin, 172 W. Va. 777, 310 S.E.2d 843 (1983) (“West Virginia Code 23-5-5  [now W. Va. Code § 23-5-16] requires that an attorney’s fee for representing a client in a single workers’ compensation claim shall not exceed twenty percent (20%) of the claimant’s recovery during a period of two hundred eight weeks even if the attorney’s fee comes from two separate sources and results from two separate contractual agreements. This limitation applies to the litigation of one claim up to the rendition of a final order, but does not apply to new claims, such as reopenings, that may be related to the first claim but involve the full litigation of a new case. If a separate award is given to the claimant, the attorney may receive the agreed additional payment for his services on this new claim up to the statutory limit.”).
In assessing attorney fees incurred in reversing an unreasonable denial of an authorization of medical benefits, the fees are calculated at a rate of $110 per hour worked through a final decision by the Office of Judges, up to a maximum of $1,500. The attorney may also be paid $110 per hour worked for any appellate work at the Board of Review and West Virginia Supreme Court of Appeals, up to a maximum additional $1,500. Attorney’s fees are payable only upon the conclusion of all litigation and appeals if the denial decision has been reversed and if the Office of Judges has determined that the denial decision is unreasonable. The hours worked begin to accrue upon the injured workers’ receipt of the denial of medical authorization.
In 2003, the Legislature amended W.Va. Code § 23-5-16 which provides for attorney fees to be paid, to claimant counsel when claimant successfully prevails in a proceeding related to a denial of medical benefits by a private carrier or self-insurer. See also W.Va. C.S.R. 85-12-et. seq. (2003).
II. WV WORKERS’ COMPENSATION CASE LAW
WHICH STATUTE APPLIES?
“When an employee, who has been injured in the course of and as a result of his/her employment, applies for workers’ compensation benefits in the form of a permanent total disability (PTD) award, the employee’s application for such compensation is governed by the statutory, regulatory, and common law as it existed on the date of the employee’s injury or last exposure when there is no definite expression of legislative intent defining the law by which the employee’s application should be governed.” Syl. Pt. 8, State ex rel. ACF Indus. v. Vieweg, 204 W.Va. 525, 514 S.E.2d 176 (1999).
“Once an award has been made, the claimant or the claimant’s dependents are entitled to the benefit of all statutory amendments which become effective while the claim is pending.” Syl. Pt. 1, Cole v. State Workmen’s Comp. Com’r, 166 W. Va. 294, 273 S.E.2d 586 (1980).
“A procedural modification of the Workmen’s Compensation Law is beneficially applicable to all claims pending in litigation on the date the statute becomes effective.” Syl. Pt. 2, Cole v. State Workmen’s Comp. Com’r, 166 W. Va. 294, 273 S.E.2d 586 (1980).
“The workmen’s compensation statutes in effect on the date of death of an injured employee control the death claims of the employee’s dependents.” Syl. Pt. 3, Hubbard v. SWCC & Pageton Coal Co., 170 W. Va. 572, 295 S.E.2d 659 (1981).
“It is an accepted rule of statutory construction that where a particular section of a statute relates specifically to a particular matter, that section prevails over another section referring to such matter only incidentally.” Cropp v. State Workmen’s Comp. Com’r, 160 W. Va. 621, 626, 236 S.E.2d 480, 484 (1977) (citing Kelley & Moyers v. Bowman, 68 W.Va. 49, 69 S.E. 456 (1910)).
“An employee injured in another state in the course of and resulting from his employment is entitled to seek workers’ compensation benefits in West Virginia, where the employee’s employment in the other state is temporary or transitory in nature.” Syl. Fausnet v. State Workers’ Compensation Comm’r, 327 S.E.2d 470 (W.Va. 1985).
If the worker is injured in West Virginia and the employer is a foreign corporation or business, five factors must be considered in assessing whether the worker is covered: (1) whether the employer obtained authorization to do business in West Virginia; (2) whether the employer operated a business or plant or maintained an office in West Virginia; (3) whether the injured employee was hired in West Virginia; (4) whether the employer regularly hired other West Virginia residents to do work at a West Virginia facility or office; and (5) whether the employee in question worked on a regular basis at a West Virginia facility for the employer prior to the injury. Van Camp v. Olen Burrage Trucking, Inc., 184 401 S.E.2d 913 (W.Va. 1991).
“[T]he workers’ compensation scheme of another state is the exclusive remedy against the employer for a non-resident employee who is temporarily employed in this State, if such employee is injured in this State and is covered by the workers’ compensation act of the other state.” Syl. Pt 3, Pasquale v. Ohio Power Co., 418 S.E.2d 738 (W.Va. 1992).
Employees and employers may agree to be bound by the workers’ compensation laws of another state. If the employer complies with the laws of that other state, the employee’s exclusive remedy is as provided for in that state’s workers’ compensation scheme without regard to the state in which the employee was injured or exposed to occupational pneumoconiosis or other occupational disease. W.Va. Code § 23-2-1c (b).
An independent contractor injured while performing his contract is not entitled to payment of Workers’ Compensation benefits. Null v. State Compensation Comm’r, 35 S.E.2d 359 (W.Va. 1945). However, in West Virginia., there is a presumption that a worker is a covered employee. Myers v. Workers’ Compensation Commissioner, 148 S.E.2d 664 (W. Va. 1966). “If the right to control or supervise the work in question is retained by the person for whom the work is being done, the person doing the work is an employee and not an independent contractor, and the determining factor in connection with this matter is not the use of such right of control or supervision but the existence thereof in the person for whom the work is being done.” Syl. Pt 2, Spencer v. Travelers Insurance Company, 133 S.E.2d 735 (W.Va. 1963). The burden is on the employer to show that an injured worker is an independent contractor rather than an employee. Null, supra.
Political subdivisions of the state may elect NOT to cover elected officials. Certain business entities also may elect NOT to cover the members of a partnership, the owner of a sole proprietorship, corporate officers, or members of the board of directors of a corporation or association. W.Va. Code § 23-2-1(g)(1), (2). “[U]niformed members of the West Virginia Division of Public Safety, who are covered under the Death, Disability and Retirement Fund, are not eligible for coverage under the Workers’ Compensation System.” Beckley v. Kirk, 455 S.E.2d 817, 818 (W.Va. 1995).
Workers’ compensation benefits cannot be waived. W. Va. Code § 23-2-7. The benefits are imposed by the police power of the State and are not contractual. Lester v. State Workers’ Comp Comm’r, 242 S.E.2d 450 (W.Va. 1978).
“The right to workmen’s compensation benefits is created wholly by statute. Under the workmen’s compensation statutes of this state, a claimant has a right to receive benefits and the workmen’s compensation commissioner may pay benefits to a claimant only as authorized by statute.” Syl. Pt. 1, Bounds v. State Workmen’s Comp. Comm’r, 153 W.Va. 670, 172 S.E.2d 379 (1970).
“An employer who is otherwise entitled to the immunity provided [statute] may lose that immunity in only one of three ways: (1) by defaulting in payments required by the . . . Act or otherwise failing to be in compliance with the Act; (2) by acting with ‘deliberate intention’ to cause an employee’s injury as set forth in [statute]; or (3) in such other circumstances where the Legislature has by statute expressly provided an employee a private remedy outside the workers’ compensation system. Syl. Pt. 2, Bias v. E. Associated Coal Corp., 220 W. Va. 190, 640 S.E.2d 540 (2006).
Workers’ Compensation benefits are paid for injuries received “in the course of” and “resulting from” employment. W.Va. Code § 23-4-1(a). The two phrases, “in the course of” and “resulting from” are not synonymous and both elements must concur in order to make a claim compensable. The statute is in the conjunctive and not the disjunctive. Damron v. State Compensation Commissioner, 155 S.E. 119 (W.Va.).
“‘[I]t may be stated as a very general proposition that an injury occurs “in the course of” the employment when it takes place within the period of the employment, at a place where the employee reasonably may be in the performance of his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto, or, as sometimes stated, where he is engaged in the furtherance of the employer’s business.’” Emmel v. State Compensation Director, 145 S.E.2d 29, 32 (W.Va. 1965) (quoting 58 Am.Jur., Workmen’s Compensation, § 212). “In determining whether an injury resulted from claimant’s employment, a causal connection between the injury and employment must be shown to have existed.” Id. at Syl. Pt. 3.
Where an employee voluntarily remains on the premises of his employer after his shift of employment has terminated, an injury received during that time will not warrant a finding that it occurred in the course of or resulting from his employment. Damron. “Under normal circumstances, an employee’s use of a public highway going to or coming from work is not considered to be in the course of employment. The reasoning underlying this rule is that the employee is being exposed to a risk identical to that of the general public; the risk is not imposed by the employer.” Brown v. City of Wheeling, 212 W. Va. 121, 125-26, 569 S.E.2d 197, 201-02 (2002). “An employee is entitled to compensation for an injury sustained in going to or from his work, only where such injury occurs within the zone of his employment, and that zone must be determined by the circumstances of the particular case presented.” Syllabus Point 1, Carper v. Workmen’s Compensation Comm’r, 1 S.E.2d 165 (W.Va. 1939). If an off-the-job activity benefits the employer in some way and an injury results, it is compensable. Emmel.
An employee injured during horseplay, “which was engaged in independently of, disconnected with, or disassociated from the performance of any duty of the employment” is not compensable because “such injuries do not result from the employment, within the meaning of such acts, but are in substance and in their nature foreign to the character of the work and are not within any duty of the employee to the employer.” Shapaka v. Compensation Comm’r, 199 S.E.2d 821 (W.Va. 1961). However, “[a]n innocent victim of horseplay injured during the course of his employment is entitled to Workmen’s Compensation benefits for such injury.” Syl., Sizemore v. State Workmen’s Comp. Comm’r, 235 S.E.2d 473 (W.Va. 1977).
Prior to the enactment of W.Va. Code § 23-4-1f, a purely psychiatric claim (a so-called “mental-mental” claim) was compensable if it developed in the course of and resulting from employment. See Breeden v. Workers’ Compensation Commissioner, 285 S.E.2d 398 (W.Va. 1981). However, with the enactment of § 23-4-1f in 1993, injuries or diseases caused by non-physical means and not resulting in any physical injury or disease are no longer compensable. That statute, providing that mental-mental claims are not compensable, is not retroactively applicable to workers’ compensation mental-mental claims filed prior to the statute’s effective date, where the statute affected claimant’s substantive right to be considered for benefits. Conley v. Workers’ Compensation Div., 483 S.E.2d 542 (W.Va. 1997). Further, an employee who is precluded from receiving workers’ compensation benefits for a mental injury without physical manifestation cannot, because of the immunity afforded employers by the Workers’ Compensation Act, maintain a common law negligence action against his employer for such injury. State ex rel. Darling v. McGraw, 647 S.E.2d 758 (W.Va. 2007).
Suicide may be compensable if “(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.” Syl. Pt. 1, Hall v. State Workmen’s Comp. Comm’r, 172 W. Va. 87, 88, 303 S.E.2d 726, 726 (1983).
The Workers’ Compensation Act specifically excludes benefits for deliberately self-inflicted injuries or injuries caused by intoxication. W.Va. Code § 23-4-2(a).
Workers’ Compensation pays for “injuries” incurred in the course of and resulting from the employment. A compensable injury is one incurred by an employee “attributable to a definite, isolated, fortuitous occurrence.” Adams v. G. C. Murphy Co., 174 S.E. 794 (W.Va. 1934). But “an isolated, fortuitous occurrence” can also be a course of action (i.e. shoveling coal) over a period of time. Pennington v. State Workers’ Compensation Comm’r, 222 S.E.2d 579 (W.Va. 1976). The term injury also includes occupational diseases. W.Va. Code § 23-4-1(b).
An occupational disease other than OP is considered to have been incurred in the course of and resulting from the employment “only if it is apparent to the rational mind, upon consideration of all the circumstances: (1) That there is a direct causal connection between the conditions under which work is performed and the occupational disease; (2) that 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) that it can be fairly traced to the employment as the proximate cause; (4) that it does not come from a hazard to which workmen would have been equally exposed outside of the employment; (5) that it is incidental to the character of the business and not independent of the relation of employer and employee; and (6) that 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 § 23-4-1(f).
“Workmen’s Compensation covers only occupational diseases; a disability resulting from the normal diseases of life was not intended to be compensated under our statute.” Mullins v. State Workmen’s Comp. Comm’r, 165 W. Va. 194, 196, 271 S.E.2d 771, 772 (1980).
If studies and research clearly link a disease to a particular hazard of a workplace, a prima facie case of causation arises in a workers’ compensation proceeding upon a showing that the claimant was exposed to a hazard and is suffering from the disease to which it is connected. Casdorph v. W. Va. Office Ins. Comm’r, 225 W. Va. 358, 690 S.E.2d 102 (2009).
A preexisting infirmity of an employee does not disqualify him from prosecuting a successful claim for compensation based upon a new injury arising from his employment. Caldwell v. Workmen’s Compensation Commissioner, 144 S.E. 568 (W.Va. 1928). But where there is evidence of a preexisting like injury, his new claim will not be treated as compensable unless it is directly attributable to a definite, isolated and fortuitous occurrence, that is to say, from a definable incident resulting from his employment. Although recognizing that the employer must take the employee as he finds him-with all of his attributes and all of his previous infirmities, it is also axiomatic that the employer, by subscribing to the workmen’s compensation fund, does not thereby become the employee’s insurer against all ills or injuries which may befall him. Barnett v. State Workmen’s Compensation Comm’r, 153 W.Va. 796, 172 S.E.2d 698 (1970). When one incurs a disability personal to one’s own condition of health, though the disability may occur in the course of employment, it is not compensable. Martin v. State Compensation Commission, 149 S.E. 824 (W.Va. 1929).
A diseased workman who in the course of and resulting from employment receives an injury which aggravates or accelerates disease to the extent of causing a disability sooner than would otherwise have occurred is entitled to workers’ compensation. Charlton v. State Workman’s Compensation Comm’r, 160 W. Va. 664, 236 S.E.2d 241 (1977).
It should be noted, that by filing an application for benefits, a claimant agrees that any physicians may release to and orally discuss with the employer, its representatives, or representatives of the insurance carrier, the claimant’s medical history and medical reports containing detailed information relevant to the claimant’s compensable condition, treatment, prognosis, and anticipated period of disability. W.Va. Code § 23-4-7(b). The statute expressly waives the doctor/patient privilege of confidentiality.
When a claimant files a workers’ compensation claim, he consents to the release of written medical reports to adversarial party; however, this consent does not waive the existing fiduciary relationship, thereby permitting ex parte oral communication between physician and adversarial party which involves providing confidential information unrelated to written medical reports. Morris v. Consolidation Coal Co., 191 W. Va. 426, 466 S.E.2d 846 (1994).
Workers’ Compensation pays for “health care services, rehabilitation services, durable medical and other goods and other supplies and medically related items as may be reasonably required” by the compensable injury or disease. W.Va. Code § 23-4-3. Sections 24 through 53 of Rule 20 (85 C.S.R. 20 et seq.) – Medical Management of Claims, Guidelines for Impairment Evaluations, Evidence, and Ratings, and Ranges of Permanent Partial Disability Awards – provides standards of care for many medical conditions that are presumed to be “reasonably required.” Treatment outside those guidelines is presumed unreasonable. “A preponderance of evidence, including but not limited to, detailed and documented medical findings, peer reviewed medical studies, and the elimination of causes not directly related to a compensable injury or disease, must be presented to establish that treatments in excess of those provided for in this Rule are medically reasonable.” 85 C.S.R. 20-4.1.
A specially fitted automobile can be considered “reasonably required” for a quadriplegic, but the claimant is not entitled to the full cost of the vehicle because he would have owned a vehicle regardless of his injury; the cost of an average, mid-priced automobile of the same year is to be deducted. Crouch v. Workers’ Compensation Commissioner, 403 S.E.2d 747 (W. Va. 1991).
“One of the basic purposes of workmen’s compensation legislation is to impose upon industry the cost of medical expenses incurred in the treatment and rehabilitation of workers who have suffered injuries in the course of and as a result of their employment; and one of those costs, by necessary implication from W. Va. Code, 23-4-3, is payment for transportation expenses necessarily incurred in obtaining medical treatment.” Syl. Pt. 2, Ney v. State Workmen’s Comp. Comm’r, 171 W. Va. 13, 297 S.E.2d 212 (1982).
W. Va. Code § 23-4-3 establishes schedules of maximum disbursements for medical, surgical, dental and hospital treatment. It also provides that carriers may establish Preferred Provider and Managed Care Plans to provide for fees and other payments which deviate from the schedule set forth in the statute.
W. Va. Code § 23-4-3(a)(3) requires pharmacists to dispense prescriptions of generic drugs rather than brand names unless a generic brand does not exist. A physician may prescribe the use of brand name drugs but must do so using the form in his or her own handwriting to require this. Claimants who elect to receive the brand name drug rather than a generic brand, where the brand name drug has not been indicated, must pay the difference between costs of the generic drug and the brand name drug.
“No person can be forced to undergo a surgical operation [or other medical treatment]. However, a claimant cannot demand compensation . . . for a physical impairment which he permits to continue by reason of his refusal to accept the benefits under the provisions of the law intended to help and rehabilitate him without any expense or unusual risk to him.” Cox v. Workmen’s Compensation Commissioner, 150 W.Va. 412, 414-415, 146 S.E.2d 577, 578 (1966) (citing Barnes v. State Compensation Commissioner, 116 W.Va. 9, 178 S.E. 70 (1935)). Such procedures may be required as a condition precedent to further compensation, “only when surgical opinion substantially concurs that the operation is indicated, that it is reasonably safe and not attended by unusual suffering, that it will likely produce material physical improvement and that it is one which a person of ordinary prudence and courage would undergo for his own betterment, regardless of compensation.” Syllabus, Gillam v. Workmen’s Compensation Appeal Board, 118 W.Va. 571, 191 S.E. 204 (1937).
A claimant has a right to select his initial health care provider or provider of rehabilitation services for the treatment of a compensable injury or disease, and if the claimant thereafter wishes to change his provider, and if the employer participates in a program to manage health care costs, then the claimant must choose a provider through the employer’s managed care program, and if the claimant thereafter wishes to change his provider, and if the employer does not participate in a managed care program, but the Workers’ Compensation Division does participate in a managed care program, then the Division may choose the claimant’s new provider through its managed care program. State ex rel. McKenzie v. Smith, 212 W.Va. 288, 569 S.E.2d 809 (2002).
“Cause for further adjustment” as required by W.Va. Code §§ 23-5-2 and 5-4, has been defined as nothing more than any evidence which would tend to justify, but not compel, the inference that there has been a progression or aggravation of the former injury. Harper v. State Workmen’s Compensation Commissioner, 234 S.E.2d 779 (W.Va. 1977). It is a deliberately relaxed standard.
Claimant must have been exposed to “minute particles of dust” in “abnormal” quantities. W.Va. Code § 23-4-1, 23-4-15, Meadows v. WCC, 198 S.E.2d 137 (W.Va. 1973).
Exposure must be for two continuous years in West Virginia out of ten immediately preceding the date of last exposure OR five continuous or non-continuous years in West Virginia out of fifteen immediately preceding the date of last exposure. “Continuous” ‘is not discounted by weekends, holidays, or brief absences due to illness, injuries or strikes. Richardson v. SCC, 74 S.E.2d 258 (W.Va. 1953); Sluss v. WCC, 327 S.E.2d 413 (W.Va. 1985).
If the claimant’s exposure is questionable, such as a clerical job in an office, the employer or the Commissioner can refer the claimant to the Occupational Pneumoconiosis Board (“OP Board”) to determine if the claimant was actually exposed. Fraga v. SCC, 23 S.E.2d 641 (W.Va. 1942); W.Va. Code §23-4-8c.
“Once the Commissioner has made the non-medical finding that there is a dust hazard, a pneumoconiosis claimant must be referred to the Occupational Pneumoconiosis Board to determine the question of causation under Code, 23-4-8c(c)(2), as amended.” Syl. pt. 2, Meadows v. State Workmen’s Compensation Commissioner, 157 W.Va. 140, 198 S.E.2d 137 (1973). Thus, even if the claimant’s application may be marked “No diagnosis of OP” by the treating physician, the claim must be ruled compensable if he has sufficient exposure and the claim is timely filed. Godfrey v. SWCC, 27 S.E.2d 802 (W. Va. 1981).
If a claimant has been exposed at work to the hazards of inhaling minute dust particles for ten of the fifteen years prior to the date of last exposure, it is presumed that any chronic respiratory disability he has is due to his employment. W.Va. Code § 23-4-8c(b).
Mere employment status for the prescribed period does not invoke the presumption; the employment must have caused a risk of exposure. Thus, mere employment at a coal mine does not invoke the presumption if the position did not involve an exposure to coal dust. Sluss v. WCC, 174 W.Va. 433, 327 S.E.2d (1985).
There is no requirement that the claimant must have been exposed to the hazards of OP solely within the state of West Virginia to benefit from the statutory presumption. Zachery v. SWCC, 162 W.Va. 932, 253 S.E.2d 532 (1979).
This is a rebuttable presumption; an employer may present evidence showing the chronic respiratory disability is not due to the claimant’s job. Thus, if the OP Board “cannot make a diagnosis of occupational pneumoconiosis,” this finding is sufficient to rebut the non-conclusive presumption . See Rhodes v. WCD, 209 W.Va. 8, 543 S.E.2d 289, (W.Va., 2000)
Awards are based on evidence showing the highest degree of impairment unless shown to be unreliable, incorrect or the impairment due to a clearly identifiable other disease or illness. Javins v. SWCC, 320 S.E.2d 119 (W.Va. 1984).
If a claimant has sixty (60) additional continuous days of exposure, he has a choice of filing a new claim for OP or filing a re-opening of an earlier claim. Ford v. State Workmen’s Compensation Commissioner, 236 S.E.2d 234 (W.Va. 1977).
To be awarded dependent benefits when an OP claimant dies, occupational pneumoconiosis must have caused the death or have contributed to the death in a material degree. Bradford v. WCC, 408 S.E.2d 213 (W.Va. 1991). The fact that someone had occupational pneumoconiosis at the time of his death is NOT proof that he died because of it.
BURDEN OF PROOF
The claimant has the burden of proving “(1) a personal injury (2) received in the course of employment and (3) resulting from that employment.” Syl. Pt. 1, in part, Barnett v. State Workmen’s Compensation Comm’r, 153 W.Va. 796, 172 S.E.2d 698 (1970).
Any workers’ compensation decision is to be made based upon a weighing of all evidence pertaining to the issue and a finding that a preponderance of the evidence supports the chosen manner of resolution.
The process of weighing evidence shall include, but not be limited to, an assessment of the relevance, credibility, materiality and reliability that the evidence possesses in the context of the issue presented. Under no circumstances will an issue be resolved by allowing certain evidence to be dispositive simply because it is reliable and is most favorable to a party’s interests or position. If, after weighing all of the evidence regarding an issue in which a claimant has an interest, there is a finding that an equal amount of evidentiary weight exists favoring conflicting matters for resolution, the resolution that is most consistent with the claimant’s position will be adopted.
Wilkinson v. OIC & Putnam County Bd of Educ, [citation] (2008) (quoting 23-4-1g(a)).
“’A claimant in a workmen’s compensation case must bear the burden of proving his claim but in doing so it is not necessary to prove to the exclusion of all else the causal connection between the injury and the employment.’ Syllabus Point 2, Sowder v. State Workmen’s Compensation Commissioner, 155 W.Va. 889, 189 S.E.2d 674 (1972).” Syllabus Point 1, Myers v. State Workmen’s Compensation Comm’r, 160 W.Va. 766, 239 S.E.2d 124 (1977).
§ 23-4-1 requires proof of a disease, not merely fear of contracting a disease after exposure to the hazards of that disease. Although this dealt with occupational pneumoconiosis, it is contrary to Godfrey, 276 S.E.2d 802 (W.Va. 1981). Marlin v. Bill Rich Construction, 482 S.E.2d 620 (W.Va.1996).
A decision of the board is clearly wrong if it is not supported by the evidence of record, is clearly against a preponderance of evidence, or is based upon evidence which is speculative and inadequate to sustain the decision of the Board. Gibson v. State Compensation Commissioner, 31 .S.E.2d 555 (W. Va. 1944); Estep v. State Workers’ Compensation Commissioner, 44 S.E.2d 305 (W. Va. 1947); Barnett v. State Workers’ Compensation Commissioner, 172 S.E.2d 698 (W.Va. 1970); Smith v. State Workers’ Compensation Commissioner, 189 S.E.2d 838 (W.Va. 1972).