We at the Wolfe Law Firm have discussed the reality of workers compensation insurance in West Virginia. Here and in most states, employers are required to obtain workers compensation insurance in case an employee is injured while on the job. The injured employee is then required to accept workers compensation payments from an insurance company in lieu of filing a lawsuit against the employer. The benefit is that the injured employee can collect payments until the injury heals and he or she returns to work. Simple, right?
Not always. Sometimes you have a dispute over your injury claim that requires hiring a West Virginia insurance claims attorney to resolve in a judicial forum. You may disagree with the amount the insurance company wants to pay you and want to appeal. Your first stop would be the Office of Judges, which receives and weighs evidence and arguments, then has one administrative law judge (ALJ) issue a written decision on your appeal. If you disagree with the Office of Judges’ decision, you have the option of filing a second appeal, this time to the Workers Compensation Board of Review. The Board of Review consists of three members appointed by the governor. It does not review any new evidence, but may affirm, vacate, reverse, or modify the order or decision of the ALJ. The Board of Review will only vacate an ALJ’s ruling if its members find that the ALJ violated statutory provisions or clearly misread the law.
If you disagree with the Board of Review’s outcome, you have the option of appealing to the West Virginia Supreme Court of Appeals. That is what happened in Kinney v. West Virginia Office of Insurance Commissioner. Leonard Kinney was working for Bluestone Industries when he fell and suffered an eye laceration and knee injury. An onsite emergency technician examined Kinney and he returned to work. The next day, he filled out an Employee’s Accident Report that mentioned the two injuries. Kinney also sought treatment from two physicians, but did not tell them about the knee injury. Nor did he ever disclose the fact that he had been in three prior car accidents to his employer.
Kinney waited one month to receive treatment for his knee, finally undergoing a right knee arthroscopy. The Claims Administrator claimed that Kinney’s failure to disclose the knee injury showed that he had credibility issues, and that the issues should be resolved against Kinney’s compensation. The Office of Judges and the Board of Review affirmed the Claims Administrator’s decision.
Kinney appealed to the Supreme Court of Appeals, which disagreed with their rulings. The Court noted that in order for a claim to be held compensable three elements must coexist: (1) a personal injury (2) received in the course of employment and (3) resulting from that employment. The Court also noted that section 23-4-15(a) of the West Virginia Code states that “an employee is entitled to benefits under workers’ compensation when a proper application is completed within six months from and after the injury.” Since Kinney had completed the injury report within six months and also had his injured knee treated during that time, that was enough to satisfy the notice requirements for section 23-4-15. The Court reversed the earlier ruling and remanded the case to find out if Kinney had fully complied with state reporting requirements.
While it is reassuring to see that you will not lose your benefits if you do not report every potential injury right away, Kinney serves as a cautionary tale for anyone injured on the job. Seek help immediately and be as forthright about your injury as possible.