State News : West Virginia

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West Virginia

SPILMAN THOMAS & BATTLE, PLLC

  304-340-3801

Legislative News

 

The 2022 West Virginia Legislature session surprisingly had a quiet finish despite the Republican supermajority and a bold attempt to fundamentally change intentional torts for workplace injuries. The House and the Senate proposed separate bills to completely change the definition of deliberate intent, commonly known as Mandolidis actions based on the seminal West Virginia case and resultant legislation. Ultimately the bills did not pass out of committee, so the 2015 amendments to West Virginia Code § 23-4-2 remain in place.

 

The Legislature passed an important and long-overdue bill sponsored by the Insurance Commissioner. House Bill 4296 cleaned up and revised outdated provisions within Chapter 23 of the West Virginia Code, which pertains to workers’ compensation. The bill modernized and updated workers’ compensation statutes, removed or revised provisions made obsolete by legislation and regulatory revisions in 2005 and 2006.

 

Recent Cases

 

The West Virginia Supreme Court of Appeals continues to analyze compensability in workers' compensation claims where the question is whether an injured employee's disabling condition was caused by a preexisting chronic condition or by a new injury. The Court is exploring the application of its holding in Syllabus Point 3 of Gill v. City of Charleston, 236 W. Va. 737, ___, 783 S.E.2d 857, 858 (2016)("A noncompensable preexisting injury may not be added as a compensable component of a claim for workers' compensation medical benefits merely because it may have been aggravated by a compensable injury. To the extent that the aggravation of a noncompensable preexisting injury results in a discreet new injury, that new injury may be found compensable.")

 

In Ramaco Resources, Inc. v. Rollins, No. 19-1163, 2021 WL 5216712, at *4 (November 9, 2021)(memorandum decision), the Court found the preponderance of evidence demonstrated Mr. Rollins aggravated a noncompensable wrist fracture while at work, and reversed the Board of Review and the Administrative Law Judge because they did not properly apply the Gill case. Rollins injured his right wrist at work on April 20, 2018. His employer questioned compensability because Rollins fractured the right wrist at home on January 5, 2018, and had recently returned to work when the new injury occurred. After the January 5 injury at home, Rollins had surgery on January 9, 2018, and completed physical therapy. He reported some stiffness and weakness in the wrist on April 2, 2018. His doctor stated he could return to work on April 9, 2018, without restrictions. Mr. Rollins returned to work full duty. On April 20, 2018, Mr. Rollins injured the same right wrist at work while loosening a bolt with a ratchet on a piece of heavy equipment. At the emergency room he reported that his right wrist popped while he was loosening a bolt with a pipe wrench. An x-ray showed a slightly impacted fracture at the volar aspect of the distal radial metaphysis. The diagnosis was right wrist fracture.

 

Claimant was treated by Dr. McCleary on April 23, 2018, who noted that Rollins had swelling and tenderness in the distal radius. Dr. McCleary also noted that an x-ray showed a nondisplaced distal radius fracture. He diagnosed a right wrist ulnar joint sprain. Dr. Mukkamala performed an independent medical evaluation of Mr. Rollins and determined he did not sustain a new injury on April 20, 2018. The x-ray performed on April 30, 2018, showed that the fracture was still visible and healing. Dr. Mukkamala believed Mr. Rollins prior right wrist fracture had not completely healed when the work incident occurred. He also noted that the x-rays revealed osteopenia, which was noncompensable.

 

A board-certified radiologist compared the x-rays taken on Mr. Rollins' right wrist on January 5, March 5, and April 20, 2018 and concluded that a January 5, 2018, right wrist x-ray (performed three months prior to the alleged work injury) showed an acute fracture of the distal radius and x-rays performed on April 20, 2018, showed a slightly impacted fracture of the distal radius. Dr. Luchs concluded that the x-rays showed a chronic healing distal radial fracture. Based on Dr. Luchs' findings, Dr. Stoll agreed with Dr. Mukkamala's assessment of Mr. Rollins did not sustain a new injury on April 20, 2018. Dr. Stoll believes that Mr. Rollins' initial fracture had not fully healed before he returned to work. Dr. Stoll also stated that the x-rays revealed osteopenia, which was non-compensable. Finally, he noted that while the treating physician was requesting authorization for an MRI, an MRI would not add any information to help the decision making process.

 

Ramaco first argues that the Board of Review's Order upholding the ALJs' compensability ruling is clearly wrong and contrary to the preponderance of the evidence. Ramaco states that substantial medical evidence shows that Mr. Rollins's noncompensable, wrist fracture of January 5, 2018, had not healed by the time he allegedly injured himself at work on April 20, 2018. Ramaco states that Dr. Luchs, Dr. Mukkamala, and Dr. Stoll all stated that Mr. Rollins merely aggravated a previous noncompensable injury. Mr. Rollins responds that simply because he suffered a prior fracture to the same body part does not now immunize Ramaco from responsibility in this claim. And Mr. Rollins contends that it is clear he was injured at work on April 20, 2018, considering he promptly reported the injury and sought medical attention. Mr. Rollins states that it was proper for the ALJ and the Board of Review to give considerable weight to the medical opinion of Dr. McCleary who provided treatment for his compensable injury and the prior wrist fracture.

 

The majority opinion of the Supreme Court found the x-ray evidence "critical" because the case involved a wrist fracture. The Court noted Dr. Luchs's review of the x-rays taken of Mr. Rollins's right wrist on January 5, March 5, and April 20, 2018, and determination that the January 2018 fracture had not healed as of April 20, 2018. Dr. Luchs stated, unequivocally, that the abnormalities revealed by the x-rays taken of Mr. Rollins's wrist following the injury of April 20, 2018, including the fracture of the distal radius, date back to January 2018. The Court found the administrative law judge "erroneously discounted this objective x-ray evidence in lieu of Dr. McCleary's self-serving, subjective belief." Importantly, the Court found, Dr. Luchs' findings are entirely consistent with the evaluation findings rendered by Drs. Mukkamala and Stoll. Inferring that Dr. McCleary subjectively believed that Mr. Rollins's fracture was completely healed, and that Mr. Rollins suffered a new injury, Dr. McCleary's belief is insufficient to support the compensability ruling when the other experts produced evidence showing that Mr. Rollins merely aggravated the preexisting injury.

 

The Court held that even when all inferences are resolved in favor of the ALJ's and Board of Review's findings, there is insufficient evidence to sustain the decision. The Court agreed with the Employer's argument the ALJ and Board of Review erred by failing to cite or discuss this Court's holding in Gill. "Because a preponderance of the evidence in this case demonstrates that Mr. Rollins aggravated his noncompensable wrist fracture while at work on April 20, 2018, Gill is a barrier to compensability. So, the [ALJ] and Board of Review committed legal error by failing to apply Gill to the facts presented." Ramaco Resources, Inc. v. Rollins, 2021 WL 5216712, at *5 (W.Va., 2021).

 

In a separate concurring opinion, Justice Jenkins and Justice Armstead noted the dissenting opinion mischaracterized the Court's comprehensive review of the record and its finding Rollins merely aggravated a preexisting injury to his right wrist.

 

Justice Wooton and Justice Hutchison wrote separate and strongly worded dissenting opinions. Justice Hutchison said the majority's opinion "violates the fundamental process due to every party in a lawsuit" when it substituted its findings of fact for those of the lower tribunal merely because it disagrees with those findings. Justice Hutchison note the Court should give substantial deference to the findings of fact of the administrative law judge that claimant presented sufficient evidence he suffered a personal injury in the course of and resulting from his employment.  He noted the ALJ rejected the expert testimony offered by the employer in favor of the expert testimony offered by the claimant, and concluded that the claimant sustained a new, compensable injury to his wrist. "The ALJ's conclusion was plausible on the record below, and that should have been the end of this Court's inquiry. The record clearly supports the ALJ's factual finding, as well as supports the Board of Review's affirmance of the judge's decision. The majority decision was clearly wrong in its decision to impose its after-the-fact judgment of the evidence. The fact that a claimant may have suffered a prior fracture to the same body part as the one injured in the workplace should not immunize an employer from responsibility for the claim. I respectfully dissent from this memorandum decision's subversion of the fact-finding process." Ramaco Resources, Inc. v. Rollins, 2021 WL 5216712, at *9 (W.Va., 2021)(Hutchison, J. dissenting).

 

In his dissenting opinion, Justice Wooton clarified his belief the evidence before the ALJ supported a finding Rollins suffered a discrete new injury to the healed right wrist fracture:

"Mr. Rollins' treating orthopedic surgeon testified that he was certain Mr. Rollins sustained a discrete, new injury on that date as evidenced by 1) the immediate pain and swelling; 2) the passage of time from the prior injury, which allowed for complete healing; 3) the greater amount of displacement of the fracture from the first fracture, as shown on x-ray; and 4) an MRI which showed the distal radius fracture in a “different formation” than the first fracture." Ramaco Resources, Inc. v. Rollins, 2021 WL 5216712, at *9 (W.Va., 2021) (Wooton, J. dissenting). He dissented because the majority made itself "a surrogate fact-finder" in contravention of West Virginia law.

 

The Supreme Court held oral argument on February 16, 2022, in the case of James Moore v. ICG Tygart Valley, LLC, No. 20-0028 in which the issue for resolution is the compensability of C5-6 spondylosis with C6 radiculopathy as secondary conditions. Claimant's counsel argued the initial work injury caused a discrete new injury that resulted in chronic cervical and radicular pain. Claimant's counsel also argued the work injury aggravated or accelerated the preexisting disc disease. The Employer argued the C5-6 spondylosis with C6 radiculopathy was a condition that preexisted the work injury and was not a discrete new injury. Both parties discussed the impact of the Gill case to the evidentiary record in their briefs and at oral argument. A decision has not been issued. You can watch the oral argument at http://www.courtswv.gov/supreme-court/calendar/2022/Dockets/feb-16-22ad.html

By Charity Lawrence and Dill Battle

 

              The 2021 West Virginia Legislative Session produced a major change for West Virginia workers’ compensation litigation in the West Virginia Appellate Reorganization Act of 2021.  Specifically, Senate Bill 275 was enacted and creates an Intermediate Court of Appeals for West Virginia.  It also eliminates the Workers’ Compensation Office of Judges (“OOJ”) and establishes the West Virginia Workers’ Compensation Board of Review (“BOR”) as the initial reviewing body for objections to decisions made by insurers regarding workers’ compensation claims.

 

              After June 30, 2022, the OOJ will be eliminated and, effective July 1, 2022, all powers and duties of the OOJ will be transferred to the BOR.  (W. Va. Code § 23-1-1h). After this date, all objections to decisions of the Insurance Commissioner, private carrier, or self-insured employer, must be filed with the BOR instead of the OOJ.  The BOR will have exclusive jurisdiction to review objections to a decision of the Insurance Commissioner, private carrier, or self-insured employer.  (W. Va. Code § 23-5-8b).  Instead of the 3 member-panel currently comprising the BOR, the BOR will consist of 5 members appointed by the Governor.  (W. Va. Code § 23-5-11a).

 

              The OOJ will officially terminate on or before October 1, 2022.  (W. Va. Code § 23-5-8a).  On or before September 30, 2022, the OOJ must issue a final decision or otherwise dispose of each matter pending before the OOJ.  (W. Va. Code § 23-5-8b(b)).  If a final decision on any pending matter before the OOJ has not been entered at the time of the OOJ’s termination, that matter will be transferred to the BOR.  (W. Va. Code § 23-5-8a).  For transferred matters, the BOR will adopt any existing records of proceedings from the OOJ, conduct further proceedings, and collect evidence necessary to issue a final decision.  (W. Va. Code § 23-5-8b(b)).  The BOR must review and decide all remaining appeals filed with the BOR regarding OOJ decisions issued prior to June 30, 2022.  (W. Va. Code § 23-5-8b(e)).

 

              The chair of the BOR shall assign, on a rotating basis, a member of the BOR to preside over the review process and issue a decision in each objection (formerly referred to as a “protest”) properly filed with the BOR.  (W. Va. Code § 23-5-9a).  That board member may delegate his or her duties to a hearing examiner employed by the BOR, but any order or decision of the BOR (except time frame orders, continuance orders, etc.) must be issued and signed by the BOR member assigned to the objection.  (W. Va. Code § 23-5-9a).  Hearing examiners must be persons admitted to the practice of law in West Virginia with at least 4 years of experience as an attorney.  (W. Va. Code § 23-5-8a).  The chair of the BOR will supervise hearing examiners.  (W. Va. Code § 23-5-8a).  If a hearing examiner is assigned to review an objection, the hearing examiner will submit the designated record at the end of the review process to the member of the BOR who was assigned the objection, along with the hearing examiner’s recommendation of a decision affirming, reversing, or modifying the action protested.  (W. Va. Code §23-5-9a).  The board member will render a decision with findings of fact and conclusions of law.  (W. Va. Code § 23-5-9a). 

 

              An appeal from a BOR decision may be filed with the West Virginia Intermediate Court of Appels within 30 days of receipt of notice of the BOR decision or within 60 days of the date of the decision, regardless of notice.  (W. Va. Code § 23-5-10a).  Any employer, employee, claimant, dependent, or the Insurance Commissioner, private insurer, or self-insured employer aggrieved by a BOR decision has a right to appeal to the Intermediate Court by filing a written notice of appeal stating the grounds for review and whether oral argument is requested.  (W. Va. Code § 23-5-12a).  A filing fee of $200 may be charged to the petitioner.  (W. Va. Code § 51-11-7).  Upon appeal to the Intermediate Court, the Workers’ Compensation BOR will then send a transcript of BOR proceedings to the Intermediate Court, including a brief recital of the proceedings in the matter and each order or decision entered.  (W. Va. Code § 23-5-12a).

 

              The WV Intermediate Court of Appeals will have exclusive jurisdiction of:

·       decisions or orders issued by the OOJ after June 30, 2022 and prior to the OOJ’s termination, and

 

·       final orders or decisions issued by the BOR after June 30, 2022.

(W. Va. Code § 23-1-1h).  The Intermediate Court may affirm, reverse, modify, or supplement the decision of the BOR.  (W. Va. Code § 23-5-12a).  It may also remand the case for further proceedings.  (W. Va. Code § 23-5-12a).  A decision of the BOR will be reversed, vacated or modified if the substantial rights of the petitioner have been prejudiced because the BOR’s findings are:

·       in violation of statutory provisions;

·       in excess of the statutory authority or jurisdiction of the BOR;

·       made upon unlawful procedures;

·       affected by other error of law;

·       clearly wrong in view of the reliable, probative, and substantial evidence on the whole record; or

·       arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

(W. Va. Code § 23-5-12a).  An appeal of the Intermediate Court’s final decision may be sought by petition to the Supreme Court of Appeals of West Virginia.  (W. Va. Code § 29A-6-1).  The Supreme Court has discretion to grant or deny the petition for appeal of an Intermediate Court decision.  (W. Va. Code § 51-11-10).

 

              The Intermediate Court will be comprised of a three-judge panel.  (W. Va. Code § 51-11-3). Initially, the judges will be appointed by the Governor, with the advice and consent of the Senate.  Then, after the initial appointment by the Governor, the judges will be elected.  (W. Va. Code § 3-1-16, § 3-5-6e, and § 51-11-6).  The judges of the Intermediate Court must be members in good standing of the West Virginia State Bar and admitted to practice law in West Virginia for at least 10 years prior to their appointment or election, and also be residents of West Virginia for 5 years prior to appointment or election.  (W. Va. Code § 51-11-3). 

 

              This new legislation impacts workers’ compensation in several ways.  Eliminating the OOJ potentially eliminates experienced administrative law judges with significant knowledge (15-25 years) in workers’ compensation jurisprudence, and the practice in West Virginia.  New practice and procedure rules before the new BOR provides uncertainty of what parts of the OOJ's rules of practice and procedure will be adopted. The BOR’s ability to hire hearing examiners with only 4 years of legal experience and without workers’ compensation litigation experience may be detrimental to decisions affecting claimants, employers and insurers. However, the hearing examiners’ recommendations are not final decisions and must be reviewed by the BOR members, and the BOR members must issue the final decisions.  The hearing examiners will also be supervised by the BOR chair.  Hopefully, this will prevent the issuance of uneducated decisions.  Additionally, the new implementation of a $200 filing fee for appeals to the Intermediate Court will likely discourage claimants from appealing decisions of the Board of Review, which will decrease the overall number of workers’ compensation appeals.  SB 275 passed April 1, 2021, and is effective 90 days from passage (June 30, 2021).  The bill was sent to Governor Jim Justice on April 5, 2021, and is expected to be signed.

 

By:

Charity Lawrence

304-720-4056

clawrence@spilmanlaw.com

 

Dill Battle

304-340-3823

dbattle@spilmanlaw.com

 

Spilman Thomas & Battle, PLLC

300 Kanawha Blvd, E.

Charleston, WV 25301

 

Spilman Thomas & Battle, PLLC is the West Virginia member of the National Workers' Compensation Defense Network. The NWCDN is a nationwide network of defense firms specializing in protecting employers and carriers in workers' compensation claims and regulatory matters. For more information, visit www.nwcdn.com.

 

Some West Virginia businesses have implemented COVID-19 vaccine mandates for employees. While the West Virginia COVID-19 Jobs Protection Act (W. Va. Code § 55-19-1 through § 55-19-9) protects people, businesses, and entities from some COVID-19 related claims, the Act does not address whether employees who suffer an injury from a COVID-19 vaccine mandated by their employers may bring a workers' compensation claim. This issue has not yet come before West Virginia courts and there is no state case law on the subject.

 

To receive benefits under West Virginia workers’ compensation law, an employee must show the employee sustained (1) a personal injury (2) in the course of employment and (3) resulting from that employment. W. Va. Code §23-4-1(a). Arguably, if a COVID-19 vaccine is a required condition of employment and an employee receives the vaccine pursuant to that mandate, an employee injured by the vaccine may be able to show that they were injured in the course of and as a result of that employment. Relevant factors may include whether the vaccine was received by the employee on-site and during work hours or on the employee’s personal time and at a different location other than the employee’s work location.  

 

Vaccine injuries are rare, and even if the employer mandates the vaccine, causation may be difficult to prove. The employee must prove that the injury was a direct result of the vaccine rather than some other source. Because of the rarity of COVID-19 vaccine injuries beyond the typical vaccine after-effects (sore arm, fever, mild symptoms), true injury resulting from an employer-mandated COVID-19 vaccine will likely be infrequent and difficult to attribute to the vaccine. Workers’ compensation insurance carriers and third-party administrators should require proof of a definitive diagnosis or injury directly related to the COVID-19 vaccine before holding the injury compensable.

 

While some employees may attempt to avoid the exclusive remedies provided by workers' compensation by asserting a deliberate intent claim, the West Virginia COVID-19 Jobs Protection Act may insulate employers from such claims. The Act specifically insulates employers from deliberate intent claims for COVID-19 infections and may also apply to injuries from vaccine mandates. This issue has not been litigated in West Virginia.

 

Employers should also be mindful of the West Virginia Legislature's recent passage of House Bill 335 that will allow employees to obtain medical or religious exemptions from their employers’ vaccine mandates. The bill was signed by Governor Jim Justice on October 22, 2021, and will go into effect 90 days thereafter.

By:

Charity Lawrence

304-720-4056

clawrence@spilmanlaw.com

 

Dill Battle

304-340-3823

dbattle@spilmanlaw.com

 

Spilman Thomas & Battle, PLLC

300 Kanawha Blvd, E.

Charleston, WV 25301

 

Spilman Thomas & Battle, PLLC is the West Virginia member of the National Workers' Compensation Defense Network. The NWCDN is a nationwide network of defense firms specializing in protecting employers and carriers in workers' compensation claims and regulatory matters. For more information, visit www.nwcdn.com.

West Virginia's COVID-19 Jobs Protection Act

 

By Charity Lawrence, Spilman Thomas & Battle, PLLC

 

The West Virginia Legislature passed the “COVID-19 Jobs Protection Act” (W. Va. Code § 55-19-1 through § 55-19-9) which prohibits certain claims against people, businesses, and entities arising from COVID-19 exposure. The Act recognizes lawsuits are being filed across the country against health care providers, health care facilities, and businesses for COVID-19 exposure. These lawsuits threaten the reopening efforts of West Virginia businesses. (W. Va. Code § 55-19-2.)

In order to facilitate and encourage the reopening and rebuilding of West Virginia’s economy, the COVID-19 Jobs Protection Act eliminates the liability of West Virginia citizens, health care providers and facilities, higher education institutions, businesses, and manufacturers, for loss, damage, personal injury, or death arising from COVID-19.  (W. Va. Code § 55-19-2.) No claims may be brought against any person, business, entity, health care facility or provider, first responder, or volunteer for loss, damage, physical injury or death arising from COVID-19, COVID-19 healthcare, or impacted healthcare (care that is offered, postponed, delayed or adversely affected as a response to COVID-19 or as a result of COVID-19).  (W. Va. Code § 55-19-4.)

Any person or business that makes or provides products in response to COVID-19 that are used by any person, healthcare provider, etc. will not be liable for personal injury, death, or property damage caused by or resulting from the products.  (W. Va. Code § 55-19-5(a)).  Likewise, any person who makes, provides, or donates household disinfecting or cleaning supplies or personal protective equipment in response to COVID-19 that does not ordinarily make such products in the ordinary course of the person’s business will not be liable for any personal injury, death or property damage resulting from the products.  (W. Va. Code § 55-19-5(b).) However, the person may be liable if the person had actual knowledge of a product defect when the product was used as intended, and acted with conscious, reckless, and outrageous indifference to a substantial and unnecessary risk that the product would cause serious injury, or if the person acted with actual malice.  (W. Va. Code § 55-19-5(c).)  The statute of limitations for those claims is one (1) year after the injury or death.  (W. Va. Code § 55-19-5(d).)

Although employees may file workers’ compensation claims for COVID-19, the COVID-19 Jobs Protection Act specifically states that deliberate intent claims for COVID-19 cannot be filed against employers. (W. Va. Code § 55-19-6.)

The COVID-19 Jobs Protection Act was signed by West Virginia Governor Jim Justice. The law is retroactive and applies to all causes of action accruing on or after January 1, 2020.  (W. Va. Code § 55-19-9.)

By:

Charity Lawrence

304-720-4056

clawrence@spilmanlaw.com

Spilman Thomas & Battle, PLLC

300 Kanawha Blvd, E.

Charleston, WV 25301

 

Spilman Thomas & Battle, PLLC is the West Virginia member of the National Workers' Compensation Defense Network. The NWCDN is a nationwide network of defense firms specializing in protecting employers and carriers in workers' compensation claims and regulatory matters. For more information, visit www.nwcdn.com.

West Virginia's New Intermediate Appellate Court Fundamentally Changes

Workers' Compensation Litigation Practice

 

By Charity Lawrence and Dill Battle

 

              The 2021 West Virginia Legislative Session produced a major change for West Virginia workers’ compensation litigation in the West Virginia Appellate Reorganization Act of 2021.  Specifically, Senate Bill 275 was enacted and creates an Intermediate Court of Appeals for West Virginia.  It also eliminates the Workers’ Compensation Office of Judges (“OOJ”) and establishes the West Virginia Workers’ Compensation Board of Review (“BOR”) as the initial reviewing body for objections to decisions made by insurers regarding workers’ compensation claims.

 

              After June 30, 2022, the OOJ will be eliminated and, effective July 1, 2022, all powers and duties of the OOJ will be transferred to the BOR.  (W. Va. Code § 23-1-1h). After this date, all objections to decisions of the Insurance Commissioner, private carrier, or self-insured employer, must be filed with the BOR instead of the OOJ.  The BOR will have exclusive jurisdiction to review objections to a decision of the Insurance Commissioner, private carrier, or self-insured employer.  (W. Va. Code § 23-5-8b).  Instead of the 3 member-panel currently comprising the BOR, the BOR will consist of 5 members appointed by the Governor.  (W. Va. Code § 23-5-11a).

 

              The OOJ will officially terminate on or before October 1, 2022.  (W. Va. Code § 23-5-8a).  On or before September 30, 2022, the OOJ must issue a final decision or otherwise dispose of each matter pending before the OOJ.  (W. Va. Code § 23-5-8b(b)).  If a final decision on any pending matter before the OOJ has not been entered at the time of the OOJ’s termination, that matter will be transferred to the BOR.  (W. Va. Code § 23-5-8a).  For transferred matters, the BOR will adopt any existing records of proceedings from the OOJ, conduct further proceedings, and collect evidence necessary to issue a final decision.  (W. Va. Code § 23-5-8b(b)).  The BOR must review and decide all remaining appeals filed with the BOR regarding OOJ decisions issued prior to June 30, 2022.  (W. Va. Code § 23-5-8b(e)).

 

              The chair of the BOR shall assign, on a rotating basis, a member of the BOR to preside over the review process and issue a decision in each objection (formerly referred to as a “protest”) properly filed with the BOR.  (W. Va. Code § 23-5-9a).  That board member may delegate his or her duties to a hearing examiner employed by the BOR, but any order or decision of the BOR (except time frame orders, continuance orders, etc.) must be issued and signed by the BOR member assigned to the objection.  (W. Va. Code § 23-5-9a).  Hearing examiners must be persons admitted to the practice of law in West Virginia with at least 4 years of experience as an attorney.  (W. Va. Code § 23-5-8a).  The chair of the BOR will supervise hearing examiners.  (W. Va. Code § 23-5-8a).  If a hearing examiner is assigned to review an objection, the hearing examiner will submit the designated record at the end of the review process to the member of the BOR who was assigned the objection, along with the hearing examiner’s recommendation of a decision affirming, reversing, or modifying the action protested.  (W. Va. Code §23-5-9a).  The board member will render a decision with findings of fact and conclusions of law.  (W. Va. Code § 23-5-9a). 

 

              An appeal from a BOR decision may be filed with the West Virginia Intermediate Court of Appels within 30 days of receipt of notice of the BOR decision or within 60 days of the date of the decision, regardless of notice.  (W. Va. Code § 23-5-10a).  Any employer, employee, claimant, dependent, or the Insurance Commissioner, private insurer, or self-insured employer aggrieved by a BOR decision has a right to appeal to the Intermediate Court by filing a written notice of appeal stating the grounds for review and whether oral argument is requested.  (W. Va. Code § 23-5-12a).  A filing fee of $200 may be charged to the petitioner.  (W. Va. Code § 51-11-7).  Upon appeal to the Intermediate Court, the Workers’ Compensation BOR will then send a transcript of BOR proceedings to the Intermediate Court, including a brief recital of the proceedings in the matter and each order or decision entered.  (W. Va. Code § 23-5-12a).

 

              The WV Intermediate Court of Appeals will have exclusive jurisdiction of:

·       decisions or orders issued by the OOJ after June 30, 2022 and prior to the OOJ’s termination, and

 

·       final orders or decisions issued by the BOR after June 30, 2022.

(W. Va. Code § 23-1-1h).  The Intermediate Court may affirm, reverse, modify, or supplement the decision of the BOR.  (W. Va. Code § 23-5-12a).  It may also remand the case for further proceedings.  (W. Va. Code § 23-5-12a).  A decision of the BOR will be reversed, vacated or modified if the substantial rights of the petitioner have been prejudiced because the BOR’s findings are:

·       in violation of statutory provisions;

·       in excess of the statutory authority or jurisdiction of the BOR;

·       made upon unlawful procedures;

·       affected by other error of law;

·       clearly wrong in view of the reliable, probative, and substantial evidence on the whole record; or

·       arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

(W. Va. Code § 23-5-12a).  An appeal of the Intermediate Court’s final decision may be sought by petition to the Supreme Court of Appeals of West Virginia.  (W. Va. Code § 29A-6-1).  The Supreme Court has discretion to grant or deny the petition for appeal of an Intermediate Court decision.  (W. Va. Code § 51-11-10).

 

              The Intermediate Court will be comprised of a three-judge panel.  (W. Va. Code § 51-11-3). Initially, the judges will be appointed by the Governor, with the advice and consent of the Senate.  Then, after the initial appointment by the Governor, the judges will be elected.  (W. Va. Code § 3-1-16, § 3-5-6e, and § 51-11-6).  The judges of the Intermediate Court must be members in good standing of the West Virginia State Bar and admitted to practice law in West Virginia for at least 10 years prior to their appointment or election, and also be residents of West Virginia for 5 years prior to appointment or election.  (W. Va. Code § 51-11-3). 

 

              This new legislation impacts workers’ compensation in several ways.  Eliminating the OOJ potentially eliminates experienced administrative law judges with significant knowledge (15-25 years) in workers’ compensation jurisprudence, and the practice in West Virginia.  New practice and procedure rules before the new BOR provides uncertainty of what parts of the OOJ's rules of practice and procedure will be adopted. The BOR’s ability to hire hearing examiners with only 4 years of legal experience and without workers’ compensation litigation experience may be detrimental to decisions affecting claimants, employers and insurers. However, the hearing examiners’ recommendations are not final decisions and must be reviewed by the BOR members, and the BOR members must issue the final decisions.  The hearing examiners will also be supervised by the BOR chair.  Hopefully, this will prevent the issuance of uneducated decisions.  Additionally, the new implementation of a $200 filing fee for appeals to the Intermediate Court will likely discourage claimants from appealing decisions of the Board of Review, which will decrease the overall number of workers’ compensation appeals.  SB 275 passed April 1, 2021, and is effective 90 days from passage (June 30, 2021).  The bill was sent to Governor Jim Justice on April 5, 2021, and is expected to be signed.

 

By:

Charity Lawrence

304-720-4056

clawrence@spilmanlaw.com

 

Dill Battle

304-340-3823

dbattle@spilmanlaw.com

 

Spilman Thomas & Battle, PLLC

300 Kanawha Blvd, E.

Charleston, WV 25301

 

Spilman Thomas & Battle, PLLC is the West Virginia member of the National Workers' Compensation Defense Network. The NWCDN is a nationwide network of defense firms specializing in protecting employers and carriers in workers' compensation claims and regulatory matters. For more information, visit www.nwcdn.com.

 

Lack of Clarity Surrounding Classification of Workers in the “Gig Economy” Drove the West Virginia Legislature to Redefine What Constitutes an Independent Contractor


On March 22, 2021, Senate Bill 272 was passed and Governor Jim Justice signed into law the West Virginia Employment Law Worker Classification Act. The bill will prevent worker misclassification and defines the differences between employees and independent contractors. As expressed in the bill: “Clarity in a worker’s classification allows businesses to comply with applicable laws, provides workers with certainty as to their benefits and obligations, and minimizes unnecessary mistakes, litigation, risk and legal exposure laws concerning workers’ compensation.”


Concerned with the lack of clarity in the legal standards used to differentiate employees from independent contractors, especially in the context of the “so-called ‘gig’, ‘entrepreneurial’, [and] ‘sharing’ economy,” the West Virginia Legislature drafted W. Va. Code §21-5I-1 et seq. to provide an objective method of making that distinction.  Additionally, the Legislature wanted to bring cohesion to the definition of independent contractor, as it can be defined differently depending on the law at issue.  In bringing cohesion to the law, the Legislature partially succeeded.  W. Va. Code §21-5I-4 will only apply “for the purpose of classifying workers” under the workers’ compensation laws in Chapter 23, unemployment compensation in Chapter 21A, the Human Rights Act in §5-11-1 et seq., and wage payment and collection in §21-5-1 et seq., it will not apply in any other area of law.


In order to qualify as an independent contractor, a worker must sign a written contract with the principal that makes it clear that the principal’s intent it to employ them as an independent contractor.  The contract must also contain five different acknowledgments for the worker to sign which help make it clear that the intent at the beginning of the relationship was to form a principal-independent contractor relationship.  For example, the worker must acknowledge that he or she is providing services as an independent contractor and that he or she will be responsible for all federal and state taxes.  The terms of the contract must “substantially comply” with all of the statutory requirements, although the statute does not define what constitutes substantial compliance.  Until there is case law on the issue, it will be impossible to determine if a contract containing 80% of the contractual requirements will be considered to be in substantial compliance. 


In addition to the contract requirements, the worker must also meet certain criteria.  The independent contractor must either file, or be contractually obligated to file, an income tax return for the fees earned from the work in question or the independent contractor must provide their services through some type of business entity, even a sole proprietorship as long as it is registered with a “doing business as.”  Further, the independent contractor must “actually and directly control[] the manner and means by which the work is to be accomplished,” which does not require that the contractor control “the final result of the work.”  This control does not extend to control necessary to ensure compliance with federal or state laws and regulations.  It also does not extend to contractually required measures regarding general safety concerns.


Finally, in addition to the requirements above, persons may either satisfy at least three of the enumerated requirements in W. Va. Code §21-5I-4(a)(4) to be classified as an independent contractor or be considered a direct seller under the Internal Revenue Code §3508(b)(2).  The requirements of W. Va. Code §21-5I-4(a)(4), are similar to the test used in other areas of the law to determine whether a worker is an independent contractor.  For example, an independent contractor is someone who controls the amount of time they spend providing services, controls where services are being performed, and is free to hire or solicit help.  Any combination of three requirements will be enough to satisfy the requirements of W. Va. Code §21-5I-4(a)(4) and no requirement holds more weight than the others do.


In conclusion, in order to be classified as an independent contractor the contract between the contractor and the principal must satisfy the writing requirements of W. Va. Code §21-5I-4(a)(1).  From there the contractor must either be required to file income taxes for the fees earned or do business through some business entity and must control how the work is to be performed.  Finally, the contractor must either meet three of the requirements of subsection W. Va. Code §21-5I-4(a)(4) or be considered a direct seller under IRC §3508(b)(2).  If the contractor does not meet these requirements, the classification test set forth in Internal Revenue Service Revenue Ruling 87-41 will determine whether the person is an independent contractor.    



By: 

Dill Battle

304-340-3823

dbattle@spilmanlaw.com


Kellen M. Shearin

304.340.3892

kshearin@spilmanlaw.com


Spilman Thomas & Battle, PLLC

300 Kanawha Blvd, E.

Charleston, WV 25301


Commissioner Dodrill's latest Bulletin is a significant change to common practice for carriers, claims adjusters, and attorneys. West Virginia Insurance Bulletin No. 21-03 interprets W. Va. Code §23-4-8(a) and the physical examination of claimants. It has long been common practice to refer to the physical examinations allowed by W. Va. Code §23-4-8(a) as "independent medical examinations" or "IMEs" despite the fact the statute does not use that term. The Commissioner believes the use of the term "independent medical examination" may lead to confusion or misunderstanding by claimants, especiallypro se claimants. The Commissioner notes the term "independent medical examination" generally refers to an examination performed by a medical examiner who has not previously been involved in claimant's care. The Commissioner notes such an independent medical examination is an examination that is independent of the traditional doctor/patient relationship. In questioning the common use of the term "IME" when the examiner is often hired by the carrier, employer, or employer's attorney to perform the examination, the Commissioner explains: "This does not mean the examination is independent in the traditional or colloquial sense, as it is oftentimes requested and paid for by the party investigating the claim or even opposing the requested benefits."

 

Commissioner Dodrill reminds us medical examiners have their own professional code of ethics to which they must adhere, and examinations should always be objective and unbiased. Importantly, examiners must follow the statutory guidelines, guidelines set forth in W. Va. Code of State Rules §85-20-1, et seq., and any other applicable guidelines. The Commissioner notes the historical registration and list of approved IME physicians formerly kept by the Workers' Compensation Commission is no longer available. However, examiners are required to verify and provide proof of their American Board of Medical Specialties ("ABMS") or American Osteopathic Association ("AOA") certification to whomever services are provides. See W. Va. Code of State Rules §85-20-5.9.a.

 

The Commissioner stated private carriers, self-insured employers and their claims administrators should use caution to ensure the use of the term "independent medical examinations" or "IMEs" is not misleading or confusing. More precise language recommended in the bulletin is "insurer's physical examination of claimant", "private carrier's physical examination of claimant", "claimant's physical examination", or "employer's physical examination of claimant", as opposed to the more generic and potentially confusing term "independent medical examination" or "IME".

 

W. Va. Code §23-4-8(a) provides generally that a private carrier, self-insured employer, or in the case of a claim made to a state administered workers' compensation fund, the Insurance Commissioner may, after due notice and whenever in its opinion it is necessary, order a claimant other than a claimant for occupational pneumoconiosis to appear for a physical examination before a medical examiner of its own choosing. W. Va. Code §23-4-8(a) further provides a claimant and/or an employer may also select a physician of their own choosing to, at their own expense, participate in the examination. With a limited exception in the disclosure of certain psychiatric or psychological reports, the claimant and employer shall be furnished with a copy of the report of examination made by the medical examiner retained by the private carrier, self-insured employer or the Commissioner, if applicable. A physician selected by a claimant or an employer has the right to submit a separate report.

 

One final sidebar is the Commissioner's statement revisions to Rule 20 are under consideration to clean up the references to IMEs in the treatment guidelines. We will monitor for  action on this front.

 

Dill Battle

304-340-3823

dbattle@spilmanlaw.com

 

Spilman Thomas & Battle, PLLC

300 Kanawha Blvd, E.

Charleston, WV 25301

 

West Virginia Insurance Commissioner Bulletin No. 21-01 Provides Guidance for Filing and Handling Workers' Compensation Claims for COVID-19

On January 19, 2021, the West Virginia Insurance Commissioner issued Bulletin No. 21-01 providing guidance for employers, workers’ compensation insurers, and self-insured employers regarding COVID-19 workers’ compensation claims.  The Commissioner reiterated that employees covered by their employers’ workers’ compensation insurance policies have the right to file claims for workers’ compensation benefits if the employees sustain an occupational injury.  The Commissioner noted that the term “occupational injury” includes an occupational disease, alluding that COVID-19 will be considered an occupational disease rather than an occupational injury. 

The Commissioner specified that employers may not advise employees that they cannot file workers’ compensation claims for COVID-19, nor may employers threaten retaliation for such claims.  Employers must post notices in a conspicuous place on their premises identifying their workers’ compensation insurer, including the name, business address, telephone number, and contact person to whom questions about making a claim should be directed.

The Commissioner reminded employees to give written notice of the injury immediately or as soon thereafter as practicable. Generally, employees have six (6) months to from the date of injury or death to file a workers' compensation claim for an occupational injury. The Commissioner recommended employees to file their workers' compensation claim as soon as possible after reporting the injury to the employer.  

Employers must report employee claims of occupational disease to their workers’ compensation insurance carriers within five (5) days after receiving notice that an employee desires to file a workers’ compensation claim or within five (5) days of receipt of the employee’s report of injury.  The Commissioner forbids employers to conduct screenings or causation investigations of COVID-19 claims prior to reporting the claims to their workers’ compensation carriers (or prior to processing the claim if the employers are self-insured).

When an employee files a workers’ compensation claim for COVID-19, the insurer or self-insured employer must properly investigate the claim and issue a timely written compensability decision.  Only after an insurer or self-insured employer receives a properly filed workers’ compensation claim must the insurer or self-insured employer use due diligence to investigate the employee’s claim to determine compensability.  These investigations include a determination of the cause and place of injury (COVID-19 exposure) which is germane to whether the injury occurred in the course of and as a result of the employment.  Workers’ compensation claims for COVID-19 should not be summarily refused, denied or rejected outright without a proper investigation.

Employers and healthcare providers must cooperate with workers’ compensation investigations of COVID-19 claims by timely providing medical records and other necessary information to workers’ compensation carriers or self-insured employers.

Finally, the Commissioner reminded employers that they may not terminate an employee who is off work for a compensable injury and is receiving, or is eligible to receive, temporary total disability benefits unless the employee has committed a separate dischargeable offense.  Additionally, employers cannot cancel or decrease an injured employee’s medical insurance benefits while the employee is receiving workers’ compensation benefits for a temporary disability.

Article by Charity Lawrence and Dill Battle

If you have questions or need more information, please call or e-mail Charity at 304.720.4056 or clawrence@spilmanlaw.com or Dill Battle at 304.340.3823 or dbattle@spilmanlaw.com.

Spilman Thomas & Battle, PLLC
300 Kanawha Boulevard, East
Charleston, WV 25301
304.340.3800 - office
304.340.3801 - fax
www.spilmanlaw.com


Get Keen on the Vaccine: Considerations for Employers Considering a Mandatory COVID-19 Vaccine - Webinar 

12/17/20 - 12:00 p.m. EST 


Thu, Dec 17, 2020 12:00 PM - 1:00 PM EST 


With the release of a new COVID-19 vaccine comes hopes of a return to "normalcy" and new concerns for how to protect your workforce. Can you make vaccines mandatory for your employees? If so, what considerations must you take into account as you craft your policies? In this webinar, Spilman attorneys Carrie Grundmann, Megan Mullins, and Eric Kinder will walk you through how to manage this transition while ensuring you stay compliant with existing labor and employment laws. 


https://register.gotowebinar.com/register/8129411155170322700 


By Carrie H. Grundmann 

336.631.1051 

cgrundmann@spilmanlaw.com


Coronavirus Considerations and Hot Topics Heading into 2021 

By Carrie H. Grundmann 

336.631.1051 

cgrundmann@spilmanlaw.com 


When much of the country locked down in March 2020, very few expected us to still be dealing with this pandemic in December 2020. And yet, here we are. In fact, coronavirus cases are rising sharply throughout much of the country, and the prospect of additional shutdowns is growing more probable by the day. Not all news is bad. Pfizer, Moderna and AstraZeneca have produced what appear to be viable vaccines that could be available as early as this month. As we look to 2021, here are a few issues that employers should have on their radar. 


Expiration of Paid Leave Under FFCRA 


Since April 2020, many employers have been providing up to two weeks of paid sick leave and 10 weeks of paid family medical leave to employees impacted by the coronavirus pursuant to the Families First Coronavirus Response Act ("FFCRA"). Barring an agreement being reached in Congress to extend these leave laws (which seems unlikely between now and the inauguration), these paid leave provisions -- and the employer tax credits associated with providing the leave -- expire on December 31, 2020. 


Employers should take steps now to determine how they will handle absences related to COVID-19 after December 31, 2020. Even where an employer chooses to discontinue paid leave, they should still provide flexibility, including considering telework, to employees who must be absent because of COVID-19. 


Once you have determined how you will handle COVID-19 absences, communicate with your workforce. All employees should be provided advance notice that the FFCRA expires at the end of December as well as how COVID-19-related leave will be handled after that. If there are employees who will be out on FFCRA-related leave as of December 31, 2020, you should clearly communicate with them how their paid leave will be impacted, if at all. 


Mandatory Coronavirus Vaccinations for the Workplace 


With viable vaccines on the horizon, many employers want to know: Can they require employees to get vaccinated? 


The answer is yes, but with exceptions. 


In 2009, the EEOC issued guidance on this very issue, but in the context of the flu shot vis-à-vis H1N1. As part of its 2020 guidance to employers, the EEOC reissued its 2009 guidance, thus, it is clear the EEOC would recognize certain exceptions to any mandatory vaccination requirement. According to the EEOC, employees may be exempt from an employer's mandatory vaccination requirement under one of the following circumstances: 


The Americans with Disabilities Act may exempt an individual who has a disability that prevents them from getting the vaccination; or 


Title VII of the Civil Rights Act requires employers to grant an accommodation to an employee where his/her sincerely held religious belief prevents them from receiving a vaccination. 


Employers faced with either a disability or a religious exemption should engage in an interactive discussion with the employee to determine what accommodation might be granted. In many cases, the appropriate accommodation will be an exemption from the vaccination, perhaps coupled with other safeguards, such as mandatory mask usage even when other employees are no longer required to wear theirs. Regardless, employers remain free to encourage (rather than require) and/or facilitate employees receiving the vaccination. While there is no requirement that employers pay for these vaccines, employers may find the convenience of providing vaccinations to its workforce to be worth the cost in light of increased productivity, much like some employers have long provided free flu vaccinations. 


The situation with the coronavirus remains in flux and likely will remain so for the near future. Employers who have questions about handling coronavirus issues should contact their legal counsel, or the Spilman COVID-19 Task Force.