State News : West Virginia

On November 18, 2015, the West Virginia Supreme Court of Appeals issued a new signed opinion inGoff v. W. Va. Dept. of Natural Resources, expanding benefits for a statutory rated loss of vision in one eye. In a Memorandum Decision also released November 18 the Court delineated calculation of Average Weekly Wage. In an October 18 order, the court set oral argument and invited interested parties to file amicus briefs by December 1, on the question of the correct methodology for apportioning the level of impairment in workers’ compensation cases involving preexisting conditions.

Goff and W. Va. Office of Ins. Comm., (No. 14-0977, November 18, 2015)

In a signed opinion, the Supreme Court addressed whether a claimant who lost an eye because of a workplace injury is limited to the statutory award in W. Va. Code § 23-5-6(f) for loss of vision in one eye. The Court allowed additional impairment for the physical removal of his right eye, in addition to the previously awarded statutory amount of the loss of vision in his right eye. In a new Syllabus point, the Court held: “The statutory percentage disability award contained within W. Va. Code § 23-5-6(f) (2005) for the total functional loss of vision of an eye caused by an occupational injury does not preclude an additional award, if appropriate, for permanent disfiguring effects and other permanent disabling effects caused by the physical removal of the eye itself.”

Claimant was struck in the right eye by a brier. His eye became infected and ultimately was removed. He was fitted with a prosthetic eye, but needed continuing treatment for conjunctivitis, blepharitis (eyelid inflammation) and other conditions related to the eye socket itself. In addition, medical reports indicate claimant suffered a permanent disfigurement to the area around the eye. The claimant was awarded 33% statutory permanent partial disability award under W. Va. Code § 23-5-6(f) for “the total and irrevocable loss of sight in one eye.” Nothing was awarded for the permanent impairment caused by his continuing problems with infections and related conditions in his right eye socket or for the permanent disfigurement caused by his eye injury. The Court held “the Legislature chose its words carefully, focusing on something short of a total physical loss of the eye – limiting its words to the ‘loss of vision’ or ‘sight’ of the eye, rather than the impairments related to the loss of the physical eye itself. Giving effect to this plainly worded statute, we therefore hold that the statutory percentage disability award contained within W. Va. Code § 23-5-6(f) (2005) for the total functional loss of vision of an eye caused by an occupational injury does not preclude an additional award, if appropriate, for permanent disfiguring effects and other permanent disabling effects caused by the physical removal of the eye itself.”

Lowry v. Team Environmental LLC and W. Va. Office of Ins. Comm., (No. 13-1125, November 18, 2015)

In a Memorandum Decision, the Supreme Court provided clear direction on how to calculate a claimant’s daily wage, the basis upon which temporary total disability and other benefits are established. Giving the words in the statute their ordinary and familiar meaning, the language of W. Va. Code § 23-4-14(b)(2) provides that in choosing between computing an injured worker’s benefits using his or her daily rate of pay or the weekly average derived from the best quarter of wages of the preceding four quarters, the computation which must be used is the one which is “most favorable to the injured employee.” There was a factual dispute whether the injured claimant was a full-time employee or a contractor whose work was intermittent. The claimant based his weekly wage on earning $16.00 per hour for a forty-hour work week which is what he was paid the day before his injury. He based his weekly wage on multiplying a forty-hour work week by his hourly rate of pay, and then dividing the number by a five-day work week, for a daily rate of pay of $128.00, and a corresponding average weekly wage of $640.00. Conversely the employer and the claims administrator used an average weekly wage of $595.38 calculated from 1099-MISC forms and checks from earnings in the fourth quarter of 2010, which was the highest-paid quarter of the year preceding the quarter of the year in which the injury happened. The daily rate of pay most favorable to the claimant was the one proposed by him and adopted by the court.

Cases from January 2015 Term of Court

In the January 2015 Term of Court, the Supreme Court issued three signed opinions. In two cases, the Court drastically diminished the enforceability of temporal limitations on claims brought under the West Virginia Workers’ Compensation Act. InSheena H. for Russell H. v. Amfire, the court ruled the claim of a dependent of a deceased employee may be accepted beyond the statute of limitations, until the dependent could reasonably learn the death was work-related.Hammons v. A & R Transport, Inc., allows claimants to apply for permanent partial disability benefits after the statutory period, if lengthy litigation on the underlying claim extended beyond the time limitation. These decisions allow injured employees, or their dependents, to claim benefits under the Worker’s Compensation Act beyond the limited time determined by the West Virginia Legislature.

Sheena H. ex rel. Russell H., et al. v. Amfire, LLC, 235 W.Va. 132, 772 S.E.2d 317 (2015)

This case addressed the tolling of the six month statute of limitations period in which W. Va. Code § 23-4-15(a) permits dependents of deceased employee to apply for death benefits under the Workers’ Compensation Act. In answering this question affirmatively, the Court utilized canons of statutory construction to avoid absurd results and overcome lack of explicit statutory permission for extending the jurisdictionally limited six month period. Ultimately, the Court decided the limitation period may be tolled under the limited circumstance in which the dependent is unaware of the work-related injury’s role in the death of a decedent because of delay by the medical examiner in preparing the autopsy which determined the cause of death. 

The peculiar facts produced a narrow holding. The decedent received a traumatic head injury while on the job. The decedent went to the hospital, returned to work less than three days later, and died in his sleep twenty-one months after the head injury. A medical examiner performed an autopsy the day after the decedent’s death; however, the medical examiner did not release the autopsy report for eight months. The autopsy report was the first, and only, indication a work-related injury caused the decedent’s death. The delay in the release of the autopsy prevented the dependents of the deceased from timely applying for death benefits within six months after the date of death in accordance with W. Va. Code § 23-4-15(a).

The Court determined the unique facts of this case were likely not considered by the legislature at the adoption of W. Va. Code § 23-4-15(a). The Court, to avoid what it characterized as a patently unfair and absurd result, determined the legislature could not have intended a claim for death benefits to be untimely simply because of a medical examiner’s delay. The Court buttressed their decision by reaffirming the purpose behind the time limitation of the Workers’ Compensation Act – to protect employers from frivolous claims and to afford claimants sufficient opportunity to investigate a claim before filing it. 

Hammons v. W. Virginia Office of Ins. Com'r, 235 W. Va. 577, 775 S.E.2d 458, 460 (2015)

The Court held that claimants may apply to reopen a workers’ compensation claim and request a referral for determining related PPD benefits after the time limits established by W. Va. Code § 23-4-16(a)(2) if four factors are met. To reopen a closed claim, the claimant must have (1) received an award of PPD for an initial workplace injury; (2) timely filed a reopening request under W. Va. Code § 23-4-16(a)(2) seeking additional, related injuries to the initial claim; (3) the additional injuries must be compensable, and (4) the Claim Administrator must fail to refer the claimant for a PPD evaluation in accordance to W.Va. Code § 23-4-7a(f). In adopting this new factor test, the Court recognized three rights afforded to claimants under the Workers’ Compensation Act; the right to the payment of benefits for workplace injuries, the right to appeal adverse decisions; and the right to be referred for a PPD evaluation.

In this case, both claimants were injured on the job, suffered from persistent pain stemming from the initial injury, and went through lengthy litigation to add new permanent partial disability benefits by reopening their initial claim. In reaching the ultimate decision to allow the untimely application for permanent partial disability referral, the Court reiterated that W. Va. § 23-4-7a(f) creates  an affirmative duty on a Claim Administrator to refer claimants for an examination to determine whether permanent partial disability exists if temporary total disability continues longer than one hundred twenty days from the date of injury or from the date of the last examination or evaluation. Here, the claimants were not afforded this right. Thus, the Court found it necessary to allow the untimely application to protect the rights recognized by the Legislature.  

Moore v. K-Mart Corp., 234 W.Va. 658, 769 S.E.2d 35 (2015). 

In a third signed opinion in the court’s January term, the court addressed a limited question whether an employee is entitled to reimbursement for medically necessary chelation therapy to treat heavy metal toxicity.  The Court found invalid the limitation to reimburse chelation therapy performed in an office as provided in W. Va. C.S.R. § 85-20-62.2 (2006). In a new syllabus point, the court ruled: “West Virginia Code of State Rules § 85–20–62.2 (2006), which provides, in part, that “[t]he Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will not reimburse for IV chelation therapy performed in office[,]” unreasonably denies reimbursement when such treatment is medically necessary, in contravention of the Workers' Compensation Act, West Virginia Code § 23–4–3 (2010), and it is therefore invalid.”

Article by Dill Battle with assistance from James C. Walls III.

 If you have questions or need more information, please call or e-mail Dill Battle at 304.340.3800 ordbattle@spilmanlaw.com