State News : West Virginia

NWCDN State News – West Virginia

Charity Lawrence and Dill Battle, Spilman Thomas & Battle, PLLC

February 16, 2026

 Upcoming Conferences

The West Virginia Workers’ Compensation Association is hosting its annual conference on April 30, 2026, in Charleston, West Virginia. A featured program will discuss E-Mods and understanding claim and program costs to discuss how a comprehensive workers’ compensation program can impact your E-mod and premium costs from claim avoidance, safety measures and claim management. Another featured speaker is Dr. Chris Martin to debate whether the Rule 20 treatment guidelines are still a valid, including his position on the importance of treatment guidelines to the workers’ compensation system in West Virginia to maintain and keep medical costs low and to help manage a workers’ compensation claim. West Virginia Insurance Commissioner Allan L. McVey will discuss the Insurance Market in West Virginia, and West Virginia State Treasurer Larry Pack will discuss the financial impact of a stable workers’ compensation market to our State’s financial health. More information can be found under the Meetings drop down menu of the WVWCA website: www.wvwca.net

West Virginia Legislature – 2026 Regular Session

 As of February 11, 2026, there are several bills of note related to workers’ compensation submitted in the 2026 Regular Session of the West Virginia Legislature. The West Virginia Workers’ Compensation Association and other business advocacy groups are following several bills related to occupational pneumoconiosis law in West Virginia.

Senate Bill 895 is concerning because it removes the statute of limitations for certain occupational pneumoconiosis (OP) claims and allows unlimited reopening of old claims. It was introduced on February 10, 2026, by Senator Takubo, Senator Smith (Senate President) and others, and was referred to the Judiciary Committee. This bill is similar to bills that have been introduced unsuccessfully for several years. The bill relates to progressive massive fibrosis (PMF) -- the most severe form of coal workers’ pneumoconiosis. The bill removes all time limits for filing or reopening PMF claims. A new section (§23‑4‑8e) allows miners with evidence of PMF to file initial claims or reopen old claims at any time, with no statute of limitations. The bill establishes PMF as a distinct, more severe condition by explicitly recognizing PMF as more serious than simple pneumoconiosis and defines it using radiographic criteria (large opacities >1 cm). The bill creates a mandatory impairment rating where a PMF diagnosis is automatically considered a 15% permanent partial disability under §23‑4‑6(i). This is a fixed statutory award. Finally, the bill allows unlimited reopening of PMF claims. Because PMF is a progressive disease, the bill ties PMF to the “progressive disease” category, which already allows repeated reopening petitions. Senate Bill 895 expands this by eliminating time limits entirely.

Delegates Hall, Jeffries, and Mott introduced House Bill 5515 on February 13, 2026, which mirrors Senate Bill 904 introduced February 10 by Senator Azinger. Both bills are intended to “modernize” Chapter 23 of the West Virginia Code. House Bill 5515 has been referred to the House Finance Committee. Senate Bill 904, introduced by Senator Azinger, has been single-referred to the Senate Banking and Insurance Committee. Both bills propose significant revisions to Articles 4 and 5 of Chapter 23. The Office of the West Virginia Insurance Commissioner drafted the legislation and requested that the respective committee chairs introduce the bills. According to the introductory language, the legislation represents a comprehensive modernization of West Virginia’s workers’ compensation statutes. It updates, reorganizes, and repeals numerous provisions in Articles 4 and 5 to improve administrative clarity, ensure consistency, and align the code with post-2005 reforms. The Commissioner indicated that this bill represents the final phase of a multi-year cleanup effort. In addition to modernizing statutory language, the bill would grant the Governor flexibility to reduce the number of Board of Review members as caseloads decline. The Commissioner has stated that the proposed changes are non-substantive in nature. The West Virginia Workers’ Compensation Association will review and analyze both bills to ensure that no unintended consequences result from the proposed revisions.

House Bill 4901 is an attempt to add a mandatory indemnity benefit for an employee with pulmonary massive fibrosis without pulmonary impairment into the deliberate intent section 2 of article 4 (WV Code 23-4-2), but it also will open the door for more deliberate intent lawsuits given that the language is inserted in this section of the Code. If the purpose is to add an indemnity benefit structure for this type of injured employee, it should have been inserted elsewhere in the code, possibly section 6a (WV Code 23-4-6a). Inserting the new language into WV Code 23-4-2(d)(2)(B)(v)(IV) and WV Code 23-4-2(d)(2)(B)(v)(V) will certainly open the door for more deliberate intent lawsuit outside the workers’ compensation system despite the prerequisite qualifications in the new law:

(1)   the employee must have written certification from a board certified pulmonologist that the employee is suffering from complicated pneumoconiosis or pulmonary massive fibrosis without current pulmonary impairment;

(2)   the employee must file the cause of action within one year of the date the employee meets the requirements; and

(3)   the employee must prove the employer fraudulently concealed or manipulated dusts samples or air quality samples.  

The proposed bill at this point provides a mandatory award with no connection to how the benefits are defined for a claimant with pulmonary massive fibrosis with no current pulmonary impairment:

(1)   Category A shall receive 10 percent;

(2)   Category B shall receive 20 percent; and

(3)   Category C shall receive 30 percent.

 House Bill 4589 expands time limitations for evaluation before the Occupational Pneumoconiosis Board, and expands indefinitely the current three-year statute of limitations. The bill essentially provides an unlimited time for an employee to file an occupational pneumoconiosis claim and obtain an evaluation at the OP Board, circumventing the current three-year statute of limitations. House Bill 4589 was discussed at a hearing on January 22, 2026, in the Committee on Health and Human Resources. Commissioner McVey testified before the committee hearing and discussed the financial impact of the bill on the operating budget of the OIC, the operating budget of the OP Board, and the solvency of the Old Fund. Calculating insurance reserve information for uncertain claims will be impossible and will increase the cost of obtaining workers’ compensation insurance for all businesses. The bill is problematic to the insurance industry and employers in West Virginia because it will increase the expenses of the Operating Fund of the OIC, will likely adversely affect the efficiency of the OP Board, and will likely increase the cost of obtaining affordable workers’ compensation insurance for businesses in West Virginia. The long-term impact of the bill will be a challenge to the low cost of workers’ compensation insurance for all employers in the state.

Senate Bill 110 creates a West Virginia Black Lung Program that grants pain and suffering for occupational pneumoconiosis. There is already a robust West Virginia Black Lung Program long in existence. Occupational pneumoconiosis is evaluated and compensated under existing state law with generous benefits and medical treatment for qualifying West Virginia employees afflicted with occupational pneumoconiosis. Benefits are already tax-free and not reportable as income to the State or IRS. An additional black lung benefit that has provided over $30 million in direct benefits to West Virginians just in FY2025 is the Federal Black Lung program. All claims for federal black lung benefits are presumed to be filed timely and there is no statute of limitations for filing survivor claims. Monthly benefits are based on the number of dependents as well as generous medical coverage, also all tax-free and not reported as income. The proposed Senate Bill 110 will fund a third, unnecessary State Black Lung scheme through taxes on coal, wind, solar, and other renewables. West Virginia taxpayers are already struggling, asking them to bear the burden of higher energy rates is unnecessary and harmful. The proposed Senate Bill 110 also instructs that a portion of the federal coal excise tax that funds the already-beleaguered Black Lung Disability Trust Fund be redirected to create this redundant program, which would be opposed federally and would further exacerbate this already fiscally problematic Fund’s financial issues. There is no residency requirement for the receipt of pain and suffering benefits under the proposed Senate Bill 110, so West Virginia taxpayers would be subsidizing benefits to countless nonresidents. It is also potentially retroactive, as there is no beginning date specified.

Occupational pneumoconiosis can be a devastating diagnosis to individuals and families. There are two robust, longstanding programs available to afflicted employees and their survivors that provide benefits. Senate Bill 110 is redundant, fiscally irresponsible, and creates a burden on West Virginia taxpayers to provide benefits to out of state residents.

 House Bill 4589 is currently in the House Committee on Health and Human Resources. Senate Bill 110 has been referred to the Committee of the Judiciary and then to the Committee on Finance but has not been scheduled on the agenda for either committee.

Supreme Court of Appeals of West Virginia

The Supreme Court of Appeals of West Virginia welcomes a new justice in the first term of 2026. Justice Gerald M. Titus III was appointed on Nov. 21, 2025, by Gov. Patrick Morrisey to fill the seat vacated by Justice Tim Armstead, who passed away in August. Justice Titus was officially sworn in to office during a private ceremony on Dec. 12 in order to begin work ahead of the Court’s spring term. Prior to joining the Court, Justice Titus was a member of Spilman, Thomas & Battle, where he maintained a general litigation practice, including complex business disputes, commercial transportation claims, eminent domain proceedings, environmental matters, criminal investigations and prosecutions, and dispute resolution.

At the beginning of the Spring Term of Court in 2026, the Court has not issued any signed opinions. As of the date of this memo, the Court has issued six memorandum decisions related to workers’ compensation cases.

Georgian American Alloys, Inc. v. Mark Davis, No. 25-579 (W.Va. Supreme Court, January 13, 2026) (memorandum decision). The Court affirmed the June 27, 2025, memorandum decision of the Intermediate Court of Appeals (“ICA”). See Georgian American Alloys, Inc. v. Davis, No. 25-ICA-49, 2025 WL 1779770 (W. Va. Ct. App. Jun. 27, 2025) (memorandum decision). The ICA affirmed the January 2, 2025, order of the Workers’ Compensation Board of Review reversing the May 23, 2023, claim administrator’s order granting Mr. Davis a 10% permanent partial disability award (“PPD”). The Board of Review granted an additional 5% PPD award for a total award of 15% PPD, which the ICA affirmed. The Court rejected the employer’s argument that the ICA erred in failing to apportion the claimant’s preexisting impairment when it affirmed the Board of Review’s decision to grant an additional 5% PPD award. The employer asserted that the facts of this case and the evidence of record clearly establish that the claimant has no permanent impairment due to the compensable condition in the claim, which is broken ribs, and that the evidence relied on by the Board was a 15% impairment rating for a noncompensable neurological condition. The employer argued the evidence presented by a Board-certified pulmonologist demonstrated the claimant’s breathing abnormality was the result of his prior smoking habit and not related to the injury. As such, the employer argued that the medical evidence clearly established that the claimant had a definite ascertainable preexisting impairment which should have been deducted from the total impairment rating. Furthermore, the employer contends that the exclusion of the pulmonologist’s report simply because he used a pulmonary criteria to rate the claimant’s pulmonary impairment instead of neurological impairment is improper. The Board of Review found that the pulmonologist’s report included opinions of the claimant’s impairment that were not supported by the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4^th ed. 1993). As a result, his report was found to be unreliable with regard to the claimant’s permanent impairment, and his opinion concerning the alleged preexisting condition was found to be without additional medical support. Thus, the ICA and the Board of Review correctly determined that apportionment was not proper because the pulmonologist’s recommendation of 5% whole-person impairment for pulmonary function was not a valid and reliable rating. The Court reviews questions of law de novo, and accords deference to the Board of Review’s findings of fact unless the findings are clearly wrong. Syl. Pt. 3, Duff v. Kanawha Cnty. Comm’n, 250 W. Va. 510, 905 S.E.2d 528 (2024). Upon consideration of the record and briefs, the Court found no reversible error and therefore summarily affirmed. See W. Va. R. App. P. 21(c).

Terry Kyle v. Patriot Coal Corp., No. 25-605 (W.Va. Supreme Court, January 13, 2026) (memorandum decision) is a January 2026 WV Supreme Court decision regarding a permanent partial disability (“PPD”) rating for occupational pneumoconiosis (“OP”). The claimant had been exposed to occupational dust for 23 years. A chest x-ray was found by the Occupational Pneumoconiosis Board (“the OP Board”) to show insufficient evidence of pleural or parenchymal changes to support a diagnosis of OP. The claimant underwent pulmonary function testing in July 2023, which showed 10% pulmonary impairment. He subsequently underwent pulmonary function testing in April 2024 which showed 0% pulmonary impairment. The OP Board found the two studies to be minimally different from each other, and it noted that such studies frequently show fluctuating values on different days. The OP Board relied on the April 2024 study to find 0% impairment, explaining that the pulmonary function study with the best volumes most accurately shows the extent of a claimant’s breathing capacity. The Intermediate Court of Appeals affirmed the decision. On appeal at the WV Supreme Court level, the claimant argued the Intermediate Court of Appeals had noted that the lower tribunal’s decision “lacks reasoning.” The claimant also argued he should have been granted 10% PPD for OP based on the July 2023 study due to the evidence being in equipoise. This argument was based on W. Va. 23-4-1g(a) which provides that “[i]f, 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.” However, the WV Supreme Court found the evidence was not in equipoise and W. Va. Code 23-4-1g(a) does not apply. The April 2024 pulmonary function study showing 0% had the best volumes. Thus, the claimant did not prove the OP Board was clearly wrong in its decision, and the 0% PPD award was affirmed.

Intermediate Court of Appeals of West Virginia

In the Spring Term of Court in 2026, the ICA has not issued any signed opinions. As of the date of this memo, the Court has issued thirteen memorandum decisions related to workers’ compensation cases.

Joseph Kessler v. West Virginia Paving, Inc., No. 25-ICA-275, (W.Va. Intermediate Court of Appeals, February 3, 2026) (memorandum decision) is a February 2026 Intermediate Court of Appeals decision regarding failure to establish exposure to the hazards of OP. The claimant alleged he was exposed to occupational dust hazards during his employment in coal mines from 1975 to 1982, 1986 to 1987, 2001 to 2002, and 2013 to 2022. While working for West Virginia Paving, Inc., his job activities involved picking up loads of rock, sand, and other materials from a mine quarry and delivering the product to customers. The Board of Review found the claimant failed to establish by a preponderance of the evidence that he was exposed to abnormal quantities of dust during the course of and resulting from his employment. W. Va. Code § 23-4-1(b) states that in order to be eligible for workers’ compensation benefits related to OP, a claimant must have “been exposed to the hazards of occupational pneumoconiosis in the State of West Virginia over a continuous period of not less than two years during the 10 years immediately preceding the date of his or her last exposure to such hazards, or for any five of the 15 years immediately preceding the date of his or her last exposure.” “[A] ‘hazard’ as contemplated by the statute, consists of any condition where it can be demonstrated that there are minute particles of dust in abnormal quantities in the work area.” Meadows v. Workmen’s Comp. Comm’r, 198 S.E.2d 137, 139 (1973). Mere employment at a dusty location, such as a mine site, is not enough to show a claimant has been exposed to a hazard. The Intermediate Court of Appeals held that the claimant experienced only occasional and brief periods of dust exposure during his work. He testified he remained in an enclosed truck cab during loading and unloading, which only took five to ten minutes, and which took place in an open-air environment. He also testified most of his driving occurred on public roads. Thus, the Court found it was not clearly wrong for the Board of Review to find the claimant was not exposed to hazardous dust levels while working for his employer because he failed to establish occupational exposure to abnormal quantities of dust. 

Alliance Coal, LLC v. Ashley Carte, No. 25-ICA-284, (W.Va. Intermediate Court of Appeals, February 3, 2026) (memorandum decision). Alliance appealed the June 10, 2025, order of the Workers’ Compensation Board of Review (“Board”), which reversed two claim administrator’s orders and granted Carte a 12% permanent partial disability (“PPD”) award. On May 17, 2022, Carte was employed by Alliance as an underground fire boss in a coal mine when he injured the bicep/forearm of his left arm while he was repositioning roof straps. The appeal involves the proper interpretation of the AMA Guides Fourth Edition and the Board’s weighing of the evidence of different methods of calculating whole person impairment when using grip strength loss measurements. The ICA was persuaded by the Board’s determination that both Mr. Carte’s statements to Dr. Guberman regarding his loss of grip strength and Dr. Guberman’s evidence showing significant loss of grip strength between the left and right hands were more persuasive measurements of whole person impairment, and Alliance failed to rebut these findings. As the Board noted, the Guides allow the use of grip strength as the basis for an impairment rating in rare cases, and Dr. Guberman concluded that this was such a case. Thus, the ICA found no error in the Board’s determination that Dr. Guberman’s application of loss of grip strength pursuant to the Guides was appropriate in this case. The ICA applied a deferential standard of review and affirmed the Board of Review:

As the Supreme Court of Appeals of West Virginia has set forth, “[t]he ‘clearly wrong’ and the ‘arbitrary and capricious’ standards of review are deferential ones which presume an agency’s actions are valid as long as the decision is supported by substantial evidence or by a rational basis.” Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473 S.E.2d 483 (1996). With this deferential standard of review in mind, we cannot conclude that the Board was clearly wrong in finding Mr. Carte sustained a 12% WPI from loss of grip strength due to the compensable injury.

Alliance Coal, LLC v. Ashley Carte, at p. 4.

For any questions, please contact:

Charity K. Lawrence

CLawrence@spilmanlaw.com

304-720-4056

Dill Battle

Spilman Thomas & Battle, PLLC

hdbattle@spilmanlaw.com

304-340-3823