In West Virginia and in other states across the country, most employers are required to carry workers compensation insurance. If one of their employees should then become injured on the job, he or she would not have the right to sue the employer in court; instead, the employee would collect workers compensation payments for the injury. This can be a good arrangement if the worker was partially at fault for the injury, because employees can receive workers compensation regardless of fault. However, it can be a bad arrangement if the employee believes that the payments are not adequately compensation for an injury, or if the Workers Compensation Office of Judges or Board of Review do not believe that the employee is truly injured. That is when employees typically hire a West Virginia personal injury attorney and file a claim.
In a recent case, the West Virginia Supreme Court affirmed a Workers Compensation Board of Review order denying permanent total disability benefits to a man who had been injured several separate times on the job. The first time, Jerry Lee Easter, a construction worker, got injured after stepping in a hole in 1991. He received workers compensation payments, and nearly three years later, his physician reported that he had reached “maximum medical improvement for his injury.” That still left Easter with a 17% impairment for his left lateral thigh, thoratic disc, and cervical spine. The Offices of Judges, which conducts hearings on workers compensation claims, eventually determined that he was 36% permanently disabled.
Then two years later, in 1996, the dump truck that Easter was driving on the job overturned, leaving Easter with a neck injury. Four years later, Easter’s physician again found that Easter had reached maximum medical improvement for the injury. The physician determined Easter’s previous permanent disability award fully compensated him for the latest injury, but the Office of Judges found that Easter was slightly more disabled, at 38%. Easter also received another 5.5% in payments in 2002, after another physician found a 5.5% whole person impairment for hearing loss, related to another injury on the job.
Also in 2002, Easter’s physician, Dr. Bruce Guberman, stated that he could not return to his previous types of employment as a result of his injuries. More significantly, Easter was “permanently and totally disabled for all types of employment.”
Others disagreed with Dr. Guberman’s findings. In 2004, Dr. Paul Forberg found that Easter had only 20% impairment for his cervical injuries, as opposed to 23%, which Dr. Guberman had found. It was determined by vocational consultants that Easter could perform work in other occupations with proper training.
In 2010, one consultant from Associates ARNC, a vocational rehabilitation firm, stated that Easter could perform “light duty” work that was available close to where he lived, as well as certain “medium duty” work. However, Easter had allegedly refused to train for a position that he considered to be low paying.
The Office of Judges considered the evidence and found that Easter was not permanently and totally disabled. The Board of Review agreed in 2011, and the West Virginia Supreme Court finally affirmed.