Aggravation of Pre-Existing Injury
An aggravation of a pre-existing injury or condition is not compensable unless the subsequent work injury results in total permanent disability. This is a substantial difference from most other states, which allow aggravations of pre-existing injuries to be compensable if the aggravation is a substantial change from the original injury.
Interestingly, a claim may be re-opened if the original injury was compensable, and was re-aggravated within the course and scope of employment.
Mental or psychological conditions are compensable only if they result from a physical injury, or cause a physical injury. Claims for purely mental distress arising from a non-physical injury (termination of employment, for example) are not compensable under the workers' compensation system. Those claims may be compensable as independent torts for intentional infliction of emotional distress, however. See [Article:7444 "Recruiting and Hiring > Employment At-Will: West Virginia"].
Employer Defenses to Workers' Compensation Claims
Employers may not be liable for certain injuries incurred under specific circumstances.
Self Inflicted Injuries and Employee Misconduct
An injury or death is not compensable if it is self-inflicted, or if it is sustained during horseplay between employees over a purely personal matter, wholly unrelated to employment. An injury or death may also not be compensable if was the result of criminal activity.
An injury or death will not be compensable if it is due to the injured employee's intoxication either with alcohol or illegal drugs. The employer may require an injured employee to undergo a blood test for the purpose of determining the existence of evidence of intoxication, if the employer has a reasonable and good faith objective suspicion of the employee's intoxication. The employer may only test for the purpose of determining whether the injured employee is intoxicated.
Injuries Sustained During Commute
Under the "going and coming rule," if an accident occurs while a worker is traveling to or from work, the accident is considered outside of the course of employment. There are exceptions, based upon the specific facts in a particular case. For example, if an employer requires an employee to make a trip to run some kind of errand related to employment, any injuries suffered during the trip, even if away from the place of business, may be compensable.
Injuries are not compensable if sustained during recreational activities that do not benefit the employer.
The employer is responsible for the payment of all reasonable and proper medical treatment. Injured employees may select their own treating physician. However, if the employer has an approved managed care plan, the treating physician must be selected from the plan. The administrative rules specify treatment guidelines for various work injuries, including the typical time that a specific injury should take to heal. The rules state that they incorporate the Presley Reed Guide, and all requirements, standards, parameters and limitations of the Presley Reed Guide are accepted as medically reasonable. Any requirements, standards, parameters and limitations that exceed those set forth in the Presley Reed Guide are considered medically unreasonable.
The injured employee has the burden of proving that any requirements, standards, parameters or limitations in excess of those provided for in the Presley Reed Guide are medically reasonable.
The employer or its insurer may require an injured employee to be examined, and may also order him or her to undergo treatment or hospitalization as is indicated in the particular case. If the injured employee refuses to comply with any order for examination or treatment, and the refusal results in an extension in the duration of temporary disability, the refusal will be considered in determining compensation, and compensation may not be awarded for the extended disability. The insurer may also suspend all benefits to an injured employee who refuses to submit to examination or to participate in needed treatment.
In addition to paying for medical costs associated with work related injuries, workers' compensation also provides payment in the form of wage replacement and other benefits.
The amount of benefits is based upon the employee's average weekly wage, meaning the injured employee's earnings, wherever earned, on the date of injury. In the case of an occupational disease or occupational pneumoconiosis, the date of injury is the date of last exposure. The employee's average weekly wage is computed based upon the daily rate of pay at the time of the injury, or upon the weekly average from the best quarter of wages out of the preceding four quarters, whichever is most favorable to the injured employee.
Temporary Total Disability
To qualify for temporary total disability, the claimant must be unable to work as a result of the injury more than three consecutive days following the date of injury. To receive benefits for the first three days of disability, the claimant must be unable to work for more than seven consecutive days following the date of injury, in which case, compensation for the first three days of disability will be awarded retroactively.
Temporary total disability may not be paid for more than 208 weeks. Compensation is at the rate of 66 2/3 percent of the employee's average weekly wage, up to the statewide maximum, and not less than 33 1/3 of the statewide maximum for full-time employees.
In no event will the injured employee be compensated more than his or her average weekly wage.
Temporary Partial Disability
An injured employee is entitled to temporary partial disability if he or she returns to transitional or light duty work because he is unable to perform the job he had at the time of the injury. The injured employee will be compensated at a rate of 66 2/3 percent of the difference between his or her pre-injury earnings and his or her lesser earnings as the result of the partially disabled condition after injury.
Permanent Partial Disability
An injured employee is entitled to permanent partial disability if he or she sustains permanent residual impairment from injury, but the disability is not total. The injured employee is entitled to four weeks' compensation for each percent of disability, at the rate of 66 2/3 of his or her average weekly wage, up to a maximum of 70 percent of the statewide average weekly wage.
The law provides for specific disability percentage amounts for catastrophic injuries, including the total loss of any body part, or the total loss of use of any body part.
Permanent Total Disability
An injured employee is entitled to permanent total disability if he or she is unable to perform any gainful employment as the result of his injury. A disability of 85 percent or more creates a rebuttable presumption of permanent total disability, meaning the employer or its insurance carrier will bear the burden of proof to establish that the injured worker is not permanently, totally disabled.
Benefits are paid at the same rate as for temporary total disability compensation.
Dependent Survivor (Death) Benefits
Death benefits are payable to the deceased employee's dependents if death results from the accident or occupational disease. Dependents are paid for as long as the dependency continues, and at the rate that was paid or would have been paid to the deceased employee for total disability. The order of preference of payment is as follows:
- A dependent widow or widower until death or remarriage, and any dependent child or children until the child or children is/are 18, or until the child or children is/are 25 as long as the child or children continue(s) as (a) full-time student(s) in any accredited school, college, university, business or trade school.
- An invalid child will be entitled to benefits as long as the child remains an invalid. Widows or widowers and children share equal amount of benefits.
- If no dependent widow, widower or any dependent children, then to a wholly dependent father or mother until death; and
- If no dependent widow, widower, dependent children, or wholly dependent father or mother, then to any other wholly dependent person for a period of six years after the death of the deceased employee.
Partial dependents are entitled to $50 a month, up to six years.
Injured employees are required to report any alleged work injury to the employer or its insurance carrier within two days. Failure to report an alleged injury within two days may be considered as a factor that weighs against compensability.
If an employer or its insurer disputes a claim, or any part of a claim, it must notify the injured employee of its decision, as well as the time allowed for filing a response to the decision. The injured employee has 60 days to protest the decision before it becomes final. Protests by injured employees or by employers must first be filed with the office of judges.
An administrative law judge (ALJ) may issue a decision, refer the case to mediation, or schedule a hearing. Any party may also request mediation, and the parties may decide whether or not mediation will be binding.
An ALJ's decision may be appealed within 30 days to the workers' compensation board of review. The board of review is comprised of three members and all decisions are made by majority vote. The board of review may affirm, reverse or modify the ALJ's decision, or it may refer the case back to the ALJ for further proceedings.
Any party may appeal a board of review decision to the Supreme Court of appeals within 30 days. The court will not re-hear the evidence or facts presented by the parties. Rather, it will only reverse or modify a board of review decision if the decision clearly violated constitutional or statutory provisions, if the underlying decision resulted from erroneous conclusions of law, or if the underlying decision was so clearly wrong based upon the evidentiary record, there is insufficient support to sustain the decision.
There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.
The West Virginia Code, Chapter 23
The Workers' Compensation Rules of the West Virginia Insurance Commissioner