High Court Sides with West Virginia Worker in Toxic Exposure Case – Moore v. K-Mart

In a recent decision, the West Virginia Supreme Court shot down a state regulation limiting a worker’s ability to get workers’ compensation benefits for a form of therapy used to treat health problems related to toxic exposure. The high court explained that the purpose of the workers’ compensation system is to cover all costs related to an injury or illness sustained on the job.

gavel-952313-m.jpgMs. Moore worked for K-Mart for more than 30 years, refurbishing furniture with belt sanders and grinders. She operated in a small, poorly ventilated room, according to the Court, and was exposed to metal and furniture dust. After feeling a tingling and numbness in her feet, Moore was diagnosed with peripheral neuropathy due to toxic exposure to heavy metals at the workplace.

Although K-Mart approved Moore’s claim for workers’ compensation benefits following the diagnosis, the company declined to pay for costs related to chelation therapy treatments that she received in her physician’s office. Chelation therapy is a medical treatment in which a synthetic solution is injected intravenously in order to help the body pass out harmful metals and chemicals through the kidneys. The Workers’ Compensation Board said the treatment wasn’t compensable, citing Section 85-20-62.2 of the West Virginia Code of State Rules. The regulation provides that a worker must obtain prior authorization from a toxicologist, occupational medicine specialist, or general internist familiar with principals of toxicology before undergoing chelation therapy. It also states that “the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will not reimburse for IV chelation therapy performed in office.”

Reversing the decision on appeal, the Supreme Court said the ban on compensation for in-office chelation therapy was unreasonable and inconsistent with the state Workers’ Compensation Act. “One of the basic purposes of workmen’s compensation legislation is to impose upon industry the cost of medical expenses incurred in the treatment and rehabilitation of workers who have suffered injuries in the course of and as a result of their employment,” the Court explained, citing its 1982 decision in Ney v. Workmen’s Compensation Commissioner. Here, the Court said the regulation counteracted that purpose.

The Court noted that there was no argument that the regulatory ban on compensation for in-office chelation therapy was actually intended to protect workers’ health and safety. Nor, the Court said, could it find any reason for making a distinction between therapy performed in an office and that performed elsewhere. Although there appeared to be some controversy over using chelation therapy to treat artery hardening, the Court said there was no such controversy concerning the therapy use to treat metal toxicity. There further appeared to be no cost justification for the distinction either, according to the Court, since Moore’s physician had offered the therapy sessions at a discounted rate.

As a result, the Court remanded the case back to the BOR with instructions to order that Moore’s chelation therapy costs be covered.

If you or a loved one has been injured in an accident on the job, the Wolfe Law Firm can help. Our West Virginia workers’ compensation lawyers have been serving clients throughout the state for more than 25 years. Located in Elkins, West Virginia, the firm represents clients in a wide range of injury, criminal defense, and bankruptcy matters. Call us at 1-877-637-5756 or contact us online for a free consultation.

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