From January 1, 2006 to July 1, 2008, an employer’s mutual company, BrickStreet Mutual Insurance Company, was the sole provider of workers’ compensation insurance in West Virginia.  BrickStreet has transformed the market that was a government-run system since 1913.  BrickStreet’s outstanding performance over the course of two and a half years has established a private workers’ compensation market that is competitive and predictable.  As of May 2008, 21 new companies were licensed to write workers’ compensation coverage in West Virginia.  The Offices of the Insurance Commissioner designated NCCI as the rating organization and also named NCCI the residual market plan administrator.

 

            After several years of silence on any major issues and in an election year, the West Virginia Supreme Court of Appeals issued four decisions in the Spring 2008 term.

 

1. In Fenton Art Glass Co. v. West Virginia Office Insurance Commission and Jack L. Garrison, No. 33673 (Per Curiam)(Starcher, J., and Albright, J., concurring in part and dissenting in part)(June 26, 2008), the Court issued an opinion regarding the deference provided to the conclusions of the Occupational Pneumoconiosis Board.  The Court granted mixed relief from orders of the Workers' Compensation Board of Review (“WCBOR”) in a case involving occupational pneumoconiosis.  The Court held that the OP Board’s administrative determination regarding the non-medical exposure issue was properly decided and affirmed by the WCBOR.  The Court further held that the WCBOR improperly substituted its judgment for the expertise of the OP Board by reversing the OP Board's determination and granting the claimant a five percent award.  The WCBOR violated the statutory standard of review by failing to accord deference to the medical findings of the OP Board.  The case was remanded for entry of an order denying the claimant relief. 

 

To view the majority opinion in this case, go to:

http://www.state.wv.us/wvsca/docs/spring08/33673.htm

 

To view the concurring and dissenting opinion, go to:

http://www.state.wv.us/wvsca/docs/Spring08/33673c.htm

 

 

2. In Lovas v. Consolidated Cola Co., No. 33670 (Albright, J.)(Starcher, J., concurring)(May 23, 2008), the Court addressed the issue of the administrative closure regulation that conflicted with statute.  The Court reversed an order of the WCBOR that affirmed an administrative closure of a claim.  The Court held that the implementation of 85 W. Va. CSR § 1-13.1 generated the misconception that it is necessary to formally petition to reopen any claim closed administratively under the regulation, or to demonstrate an aggravation of the claimant's condition.  The implementation of this regulation conflicts with the intention of the Legislature, that a claim should remain open for medical benefits on an unlimited basis until it satisfies the statutory requirements for permanent closure identified in West Virginia Code § 23-4-16(a)(4).  The Court recognized the arguments of the administrator of the Old Fund, the West Virginia Offices of the Insurance Commissioner, that there is value in an internal temporary deactivation for administrative reasons.  The Court declared the current regulation invalid.  The Court directed that notice is to be provided to each claimant whose claim remains active under the five-year rule but that was administratively closed.  The notice must also indicate that the standard evidence indicating that a requested authorization is medically necessary and reasonably required will justify continued action on the claim if appropriate under West Virginia Code § 23-4-16(a)(4).

 

To view the majority opinion in this case, go to:

http://www.state.wv.us/wvsca/docs/spring08/33670.htm

 

To view the concurring and dissenting opinion, go to:

http://www.state.wv.us/wvsca/docs/Spring08/33670c.htm

 

3. The third written opinion on workers’ compensation this last term was a per curiam opinion addressing the addition of a psychiatric condition as a compensable component to a claim.  In Wilkinson v. West Virginia Office Insurance Commission and Putnam County Bd. of Ed., No. 33672 (Per Curiam)(June 23, 2008), the Court addressed a technically moot issue, and reversed an order of the WCBOR that upheld an administrative decision that there was no justification for adding a psychiatric condition as a compensable component of an existing claim.  The Court held that the Office of Judges wrongly disregarded substantial evidence of record that claimant's psychiatric condition was related to her compensable injury.  The Court further held that the claimant did not have the burden to prove that her psychiatric condition did not result from another major medical procedure.  Finally, the Court held that the Office of Judges wrongly disregarded as unreliable two medical reports submitted by the claimant.

 

To view the majority opinion in this case, go to:

http://www.state.wv.us/wvsca/docs/spring08/33672.htm

 

4. In SWVA, Inc. v. West Virginia Office Insurance Commission and Elmer Adkins, Jr., No. 33708 (Per Curiam)(Starcher, J., concurring)(June 26, 2008), the Court affirmed a decision by the WCBOR that authorized use of digital hearing aids.  The Court held that sufficient evidence exists to establish that digital hearing aids are reasonably required for treatment under the circumstances in the claim.

 

To view the majority opinion in this case, go to:

http://www.state.wv.us/wvsca/docs/spring08/33708.htm

 

To view the concurring opinion, go to:

http://www.state.wv.us/wvsca/docs/Spring08/33708c.htm

 

 

H. Dill Battle III

304-340-3823

hdbattle@spilmanlaw.com

Admitted in WV and VA

 

Spilman Thomas & Battle, PLLC

P.O. Box 273

Charleston, West Virginia 25314

304-340-3800

304-340-3801 – fax

http://www.spilmanlaw.com

 

Offices in Charleston, Morgantown, and Wheeling, West Virginia

 

For further inquiries regarding West Virginia law contact Mr. Battle at (304) 340-3823 or at hdbattle@spilmanlaw.com.