Articles Posted in Workers Compensation

A worker who is injured on the job in West Virginia is generally entitled to workers’ compensation benefits to cover medical expenses and missed wages. Workers usually can’t sue their employers for negligence or other claims based on workplace mishaps, however, unless they can prove that the employer acted with what the law calls “deliberate intent.” That’s because lawmakers want these disputes to be resolved via the workers’ compensation system. As the U.S. District Court for the Southern District of West Virginia recently explained, workers’ compensation immunity also extends to managers and supervisors who may be to blame for an accident.

gavel-952313-mMs. Grose was working as a “head tapper” at a manufacturing facility in Alloy, West Virginia, when she was injured in an accident on the job. She was performing her duties when the floor above a furnace collapsed, leaving her stuck just above “900-3200 Fahrenheit molten material,” according to Grose, and causing her to suffer “severe and permanent” injuries. Grose later sued the facility’s operator, as well as supervisor David Mallow, for negligence and deliberate intent. She alleged that she had warned Mallow prior to the accident that the flooring was in bad shape but said the company failed to take action to make the area safe.

Mallow asked the District Court to dismiss the claims against him, arguing that he was immune from suit under the West Virginia Workers’ Compensation Act. The District Court agreed. It cited the State Supreme Court’s 2013 decision in Young v. Apogee Coal Co., in which the high court held that the workers’ compensation immunity exemption for deliberate intent only applies to claims against employers. Mallow was a supervisor, not an employer, according to the District Court. “Here, plaintiff alleges in Count 1 that Mallow acted with ‘deliberate intention’ when he ‘intentionally and knowingly exposed her to . . . unsafe working conditions,’” the Court observed. “Even if true, such a claim will only strip Mallow of the immunity conferred by the Act if he is an ‘employer.’”

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One of the most common issues that come up in West Virginia workers’ compensation cases is the question of whether a certain injury was caused by an accident on the job or is the result of a preexisting condition. Although further testing would often make it easier to answer this question, a worker may have to go out of his own pocket – or rely on his own medical insurance – to cover those tests. A recent case out of West Virginia’s Supreme Court is an example of how administrators and courts look at a preexisting condition. It also makes clear that requests for further testing must be backed by clear medical evidence in order for the workers’ compensation system to pick up the tab.

pizza-inbox-too-1321148Mr. Tully was working as a pizza delivery driver for Gino’s when he was injured in a rear-end car accident in September 2012. He suffered a neck sprain – which was deemed covered under the state workers’ compensation program – and was cleared to return to work with modified duties. Although Tully reported experiencing spasms, a buzzing sensation, and tunnel vision, a doctor ultimately determined that these symptoms stemmed from his history of chronic neck and back pain and weren’t related to the accident. Tully had previously injured his head and neck during a fall three years earlier.

Based on the doctor’s findings, a claims administrator concluded that Tully wasn’t entitled to additional benefits for temporary total disability or permanent partial disability. The administrator denied Tully’s request for a cervical MRI and follow-up appointments. The Workers’ Compensation Office of Judges later reversed the decision in part, however, finding that Tully should have been permitted to undergo the MRI and follow-up appointments. Despite his history of neck and back problems, the Office said he was entitled to further testing to determine whether the accident had made his existing injuries worse.

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In order to obtain workers’ compensation benefits for an injury, you have to prove that the injury occurred on the job. As a recent case out of the state Supreme Court shows, this burden of proof goes beyond just saying that the injury happened at work.

gavel-952313-mMr. Price was working as a laborer in August 2013 when he alleged he injured his back. He said he was throwing wet tents into a truck when he started experiencing pain in his lower back that radiated down one of his legs. Price went to an emergency room one day later, and he was diagnosed with spinal stenosis and a herniated disc.

A claims administrator rejected Price’s claim for workers’ compensation benefits, finding that there was no evidence to show that Price sustained his injury at work. His supervisor at the time completed an accident report in which three witnesses said they didn’t notice anything wrong with Price on the day in question. They also said he was “goofing off” at the end of the day. Price was laughing, jumping up and down in the truck, and attempting to block tents from entering the truck. The supervisor additionally said he worked with Price throughout the day and saw him jumping in and out of trucks with no complaints about pain. He said he asked the staffing company that Price worked for to terminate Price’s employment after Price failed to show up for work the next day. A staffing agency rep said Price didn’t mention the injury until after he was informed that he’d been fired.

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A person who is injured on the job in West Virginia is generally entitled to workers’ compensation benefits covering medical costs and some missed wages, depending on the nature of the accident and the injuries sustained. In some cases, the worker can also sue his or her employer for additional damages for “deliberate intent,” or purposely exposing the worker to a condition that the employer knew was particularly dangerous. The worker may also be able to seek damages from a property owner, if the owner failed to adequately warn the worker about hazards on the property that the owner knew about or should have been aware of. As a recent state Supreme Court ruling shows, however, a worker who causes his own accident isn’t likely to have much of a claim.

safety_helmetMr. Ball began working as a drilling rig operator in 2006, running a drill mounted on a crawler chassis to perform excavation work for windmill pads in Grant County. He was doing exploratory drilling on behalf of Allegheny Investments at a site owned by OAS Enterprises in 2008 when he was involved in an accident. A foreman drove Ball along the proposed drill path before the work began, and Ball worked on the path for several hours without incident. At some point, he reached a hill and was unsure whether to continue or to turn back. Ball opted to keep going – moving off the designated drill path – and the drill rig ultimately steered off an embankment and crashed on its side.

Ball incurred injuries to his face and his head during the accident. He sued A.L.L. Construction and Allegheny Investments, alleging that they were his joint employer. Ball argued that the companies should be liable beyond workers’ compensation benefits because they subjected him to an unsafe work condition knowing that it was likely to cause him injury. Ball also sued OAS Enterprises, alleging that the company was also liable for the unsafe conditions on the property as owner of the site. A circuit court granted summary judgment to the companies, finding that Ball failed to show that the area where the accident took place was particularly hazardous or that A.L.L. and Allegheny had “actual knowledge” of any hazard on the property.

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Another day, another court ruling showing how difficult it can be to get around the basic presumption that an employer generally can’t be sued for injuries otherwise covered by the state’s workers’ compensation system. This time, the U.S. District Court for the Northern District of West Virginia explains the type of “deliberate intent” that could be enough to overcome workers’ compensation immunity.

ambulance-1334532-mDotson was injured in an accident while driving a semi-tractor for Elite Oil, hauling containers of mud from oil and gas drilling operations to disposal sites. In August 2013, he was driving an empty trailer in Harrison County when the brakes overheated, began to smoke, and eventually caught on fire. Dotson’s supervisor – Mr. Hess – arranged for Dotson to be picked up and the trailer to be towed for necessary repairs. Instead of making those repairs, however, Dotson claims that Hess assigned the trailer to another driver. This second driver later reported that the trailer had transmission damage. The transmission was repaired, and the truck was returned to Dotson.

Shortly thereafter, Dotson was driving downhill when the trailer’s brakes gave out. The vehicle crashed into a ditch, and Dotson suffered a head injury and hip dislocation. He sued Elite Oil and Hess for damages, alleging that they weren’t shielded by West Virginia’s workers’ compensation laws because they acted with direct intent in causing his injuries. Dotson claimed that Hess “utilized deception in order to place [Dotson] on a very steep roadway with a very heavy load in a truck knowing that it had a faulty breaking system, which breaking system [Hess] intentionally failed to have evaluated and repaired.”

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If you’ve been injured on the job, your best bet to recoup some money for your injuries is though the state workers’ compensation system. In some cases, however, you may also be able to sue your employer for money damages. The U.S. District Court for the Southern District of West Virginia recently explained how an injured worker can overcome an employer’s workers’ compensation immunity.

safety_helmetMr. Crigger was working for Parsley Enterprises in October 2012 when he was injured in an accident at a mine. According to his complaint, he was riding into the mine when he “came into a depressed area causing him to be thrown upwards” and causing a variety of injuries that kept him away from work. He later sued his employer for his injuries, alleging that the company was aware of health and safety hazards at the mine and subjected him to the danger anyway.

As the District Court explained, workers who are injured on the job are usually barred from suing their employers for the accident. Instead, they’re expected to seek benefits through the state workers’ compensation system. This is a form of insurance, in which employers pay into a benefits fund from which eligible workers can seek compensation for medical bills and missed time from work related to a mishap on the job. This so-called “workers’ compensation immunity” is designed to cut down on litigation related to workplace accidents by allowing workers to seek compensation directly from a third-party insurer.

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One of the main issues in many workers’ compensation cases is the question of whether the worker suffered a particular injury as a result of the workplace accident or whether it was a preexisting condition at the time of the accident. A recent ruling out of the West Virginia Supreme Court shows just how important medical evidence is in answering this question.

youbethejudge.jpegMr. Berry was working as a truck driver for Gentleman Gene in April 2012 when he injured himself on the job while moving a mail cart. He was diagnosed with a back strain, and later with a herniated disc, spinal stenosis, and mid-lumbar radiculopathy. Berry filed a claim for workers’ compensation benefits as a result of the injury.

The trouble was that Berry had a long history of back problems prior to the accident, dating back to as early as 1980. These injuries were related to various on-the-job strains as well as Berry’s involvement in a car accident at work. Among other ailments, Berry had been treated for disc bulges, facet arthropathy, stenosis of the lumbar spine, and foraminal narrowing. Seven months before the mail cart incident, Berry underwent an MRI that showed degenerative changes with spondylosis throughout the lumbar spine, as well as multiple levels of disc space narrowing and disc desiccation. It also showed various disc bulges and protrusions.
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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.”
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Workers’ compensation is a form of insurance system in which employers pay premiums to an insurance company so that their workers are covered for injuries sustained on the job. An injured worker can file a claim for benefits, covering medical costs and missed wages due to time away from work, which the insurer is required to pay out for covered injuries. Unfortunately, some insurers are often reluctant to pay out claims or seek to reduce the amount of any claims that they do pay.

motorcycle-stunter-tyre-burnout-1301095-m.jpgOne of the main issues that regularly arises in these cases has to do with what the courts call “preexisting conditions.” In other words, the question is: did the worker suffer a particular injury during the workplace accident, or did the worker already have the injury at the time? West Virginia’s Supreme Court recently took on this issue in a case involving a worker injured in a workplace accident less than a year after being injured in an off-duty motorcycle crash.

Mr. Steyer was working as a coal miner “when he was jarred while operating a shuttle car” on the job, according to the Court. A claims administrator found that Steyer was entitled to workers’ compensation benefits for various back injuries sustained in the incident. The administrator denied benefits, however, for pain in the thoracic spine and other acute pain. Steyer had sustained a spinal fracture and disc bulges in a motorcycle accident seven months earlier, and the administrator noted that Steyer had complained of thoracic spine pain radiating to his legs after the bike crash. On appeal, the Board of Review agreed and concluded that those injuries were not compensable because they were all related to the motorcycle crash.
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Post-traumatic stress disorder is a psychiatric condition that causes a person to suffer anxiety following some form of extreme emotional trauma. Unfortunately, many soldiers returning from war are afflicted with PTSD. But you don’t have to spend time on a foreign battlefield to be at risk. PTSD can result from a wide variety of circumstances, including a car accident. In a recent decision, West Virginia’s Supreme Court explained that a person who suffers from PTSD stemming from a workplace accident may be entitled to workers’ compensation benefits.

wreck.jpegMr. Wolfe was injured in an auto accident while driving a truck for Blacktop Industries. He sustained abrasions on his neck and back and muscle spasms as a result of the crash, in which the other driver was killed. He was also diagnosed with post-traumatic stress disorder stemming from the accident. He began to suffer from flashbacks, nightmares, and insomnia, according to the Court, and underwent psychiatric treatment. Wolfe obtained workers’ compensation benefits for the physical injuries, but a state claims administrator denied his request for benefits related to the PTSD.

The Workers’ Compensation Office of Judges later affirmed the decision. The Office held that Wolfe didn’t prove that his psychiatric issues were related to the injuries that he sustained in the crash, rather than being a result of the fact that the other driver died in the crash. West Virginia Code § 23-4-1f (1993) provides that a worker can’t seek workers’ compensation benefits for an injury “solely caused by nonphysical means and which did not result in any physical injury or disease to the person claiming benefits.” In other words, the Office said the PTSD had to be directly related to a physical injury for which Wolfe received benefits.
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