State News : West Virginia

By Charity Lawrence and Dill Battle

              The 2021 West Virginia Legislative Session produced a major change for West Virginia workers’ compensation litigation in the West Virginia Appellate Reorganization Act of 2021.  Specifically, Senate Bill 275 was enacted and creates an Intermediate Court of Appeals for West Virginia.  It also eliminates the Workers’ Compensation Office of Judges (“OOJ”) and establishes the West Virginia Workers’ Compensation Board of Review (“BOR”) as the initial reviewing body for objections to decisions made by insurers regarding workers’ compensation claims.

              After June 30, 2022, the OOJ will be eliminated and, effective July 1, 2022, all powers and duties of the OOJ will be transferred to the BOR.  (W. Va. Code § 23-1-1h). After this date, all objections to decisions of the Insurance Commissioner, private carrier, or self-insured employer, must be filed with the BOR instead of the OOJ.  The BOR will have exclusive jurisdiction to review objections to a decision of the Insurance Commissioner, private carrier, or self-insured employer.  (W. Va. Code § 23-5-8b).  Instead of the 3 member-panel currently comprising the BOR, the BOR will consist of 5 members appointed by the Governor.  (W. Va. Code § 23-5-11a).

              The OOJ will officially terminate on or before October 1, 2022.  (W. Va. Code § 23-5-8a).  On or before September 30, 2022, the OOJ must issue a final decision or otherwise dispose of each matter pending before the OOJ.  (W. Va. Code § 23-5-8b(b)).  If a final decision on any pending matter before the OOJ has not been entered at the time of the OOJ’s termination, that matter will be transferred to the BOR.  (W. Va. Code § 23-5-8a).  For transferred matters, the BOR will adopt any existing records of proceedings from the OOJ, conduct further proceedings, and collect evidence necessary to issue a final decision.  (W. Va. Code § 23-5-8b(b)).  The BOR must review and decide all remaining appeals filed with the BOR regarding OOJ decisions issued prior to June 30, 2022.  (W. Va. Code § 23-5-8b(e)).

              The chair of the BOR shall assign, on a rotating basis, a member of the BOR to preside over the review process and issue a decision in each objection (formerly referred to as a “protest”) properly filed with the BOR.  (W. Va. Code § 23-5-9a).  That board member may delegate his or her duties to a hearing examiner employed by the BOR, but any order or decision of the BOR (except time frame orders, continuance orders, etc.) must be issued and signed by the BOR member assigned to the objection.  (W. Va. Code § 23-5-9a).  Hearing examiners must be persons admitted to the practice of law in West Virginia with at least 4 years of experience as an attorney.  (W. Va. Code § 23-5-8a).  The chair of the BOR will supervise hearing examiners.  (W. Va. Code § 23-5-8a).  If a hearing examiner is assigned to review an objection, the hearing examiner will submit the designated record at the end of the review process to the member of the BOR who was assigned the objection, along with the hearing examiner’s recommendation of a decision affirming, reversing, or modifying the action protested.  (W. Va. Code §23-5-9a).  The board member will render a decision with findings of fact and conclusions of law.  (W. Va. Code § 23-5-9a). 

              An appeal from a BOR decision may be filed with the West Virginia Intermediate Court of Appels within 30 days of receipt of notice of the BOR decision or within 60 days of the date of the decision, regardless of notice.  (W. Va. Code § 23-5-10a).  Any employer, employee, claimant, dependent, or the Insurance Commissioner, private insurer, or self-insured employer aggrieved by a BOR decision has a right to appeal to the Intermediate Court by filing a written notice of appeal stating the grounds for review and whether oral argument is requested.  (W. Va. Code § 23-5-12a).  A filing fee of $200 may be charged to the petitioner.  (W. Va. Code § 51-11-7).  Upon appeal to the Intermediate Court, the Workers’ Compensation BOR will then send a transcript of BOR proceedings to the Intermediate Court, including a brief recital of the proceedings in the matter and each order or decision entered.  (W. Va. Code § 23-5-12a).

              The WV Intermediate Court of Appeals will have exclusive jurisdiction of:

·       decisions or orders issued by the OOJ after June 30, 2022 and prior to the OOJ’s termination, and

·       final orders or decisions issued by the BOR after June 30, 2022.

(W. Va. Code § 23-1-1h).  The Intermediate Court may affirm, reverse, modify, or supplement the decision of the BOR.  (W. Va. Code § 23-5-12a).  It may also remand the case for further proceedings.  (W. Va. Code § 23-5-12a).  A decision of the BOR will be reversed, vacated or modified if the substantial rights of the petitioner have been prejudiced because the BOR’s findings are:

·       in violation of statutory provisions;

·       in excess of the statutory authority or jurisdiction of the BOR;

·       made upon unlawful procedures;

·       affected by other error of law;

·       clearly wrong in view of the reliable, probative, and substantial evidence on the whole record; or

·       arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

(W. Va. Code § 23-5-12a).  An appeal of the Intermediate Court’s final decision may be sought by petition to the Supreme Court of Appeals of West Virginia.  (W. Va. Code § 29A-6-1).  The Supreme Court has discretion to grant or deny the petition for appeal of an Intermediate Court decision.  (W. Va. Code § 51-11-10).

              The Intermediate Court will be comprised of a three-judge panel.  (W. Va. Code § 51-11-3). Initially, the judges will be appointed by the Governor, with the advice and consent of the Senate.  Then, after the initial appointment by the Governor, the judges will be elected.  (W. Va. Code § 3-1-16, § 3-5-6e, and § 51-11-6).  The judges of the Intermediate Court must be members in good standing of the West Virginia State Bar and admitted to practice law in West Virginia for at least 10 years prior to their appointment or election, and also be residents of West Virginia for 5 years prior to appointment or election.  (W. Va. Code § 51-11-3). 

              This new legislation impacts workers’ compensation in several ways.  Eliminating the OOJ potentially eliminates experienced administrative law judges with significant knowledge (15-25 years) in workers’ compensation jurisprudence, and the practice in West Virginia.  New practice and procedure rules before the new BOR provides uncertainty of what parts of the OOJ's rules of practice and procedure will be adopted. The BOR’s ability to hire hearing examiners with only 4 years of legal experience and without workers’ compensation litigation experience may be detrimental to decisions affecting claimants, employers and insurers. However, the hearing examiners’ recommendations are not final decisions and must be reviewed by the BOR members, and the BOR members must issue the final decisions.  The hearing examiners will also be supervised by the BOR chair.  Hopefully, this will prevent the issuance of uneducated decisions.  Additionally, the new implementation of a $200 filing fee for appeals to the Intermediate Court will likely discourage claimants from appealing decisions of the Board of Review, which will decrease the overall number of workers’ compensation appeals.  SB 275 passed April 1, 2021, and is effective 90 days from passage (June 30, 2021).  The bill was sent to Governor Jim Justice on April 5, 2021, and is expected to be signed.

By:

Charity Lawrence

304-720-4056

clawrence@spilmanlaw.com

Dill Battle

304-340-3823

dbattle@spilmanlaw.com

Spilman Thomas & Battle, PLLC

300 Kanawha Blvd, E.

Charleston, WV 25301

Spilman Thomas & Battle, PLLC is the West Virginia member of the National Workers' Compensation Defense Network. The NWCDN is a nationwide network of defense firms specializing in protecting employers and carriers in workers' compensation claims and regulatory matters. For more information, visit www.nwcdn.com.

Some West Virginia businesses have implemented COVID-19 vaccine mandates for employees. While the West Virginia COVID-19 Jobs Protection Act (W. Va. Code § 55-19-1 through § 55-19-9) protects people, businesses, and entities from some COVID-19 related claims, the Act does not address whether employees who suffer an injury from a COVID-19 vaccine mandated by their employers may bring a workers' compensation claim. This issue has not yet come before West Virginia courts and there is no state case law on the subject.

To receive benefits under West Virginia workers’ compensation law, an employee must show the employee sustained (1) a personal injury (2) in the course of employment and (3) resulting from that employment. W. Va. Code §23-4-1(a). Arguably, if a COVID-19 vaccine is a required condition of employment and an employee receives the vaccine pursuant to that mandate, an employee injured by the vaccine may be able to show that they were injured in the course of and as a result of that employment. Relevant factors may include whether the vaccine was received by the employee on-site and during work hours or on the employee’s personal time and at a different location other than the employee’s work location.  

Vaccine injuries are rare, and even if the employer mandates the vaccine, causation may be difficult to prove. The employee must prove that the injury was a direct result of the vaccine rather than some other source. Because of the rarity of COVID-19 vaccine injuries beyond the typical vaccine after-effects (sore arm, fever, mild symptoms), true injury resulting from an employer-mandated COVID-19 vaccine will likely be infrequent and difficult to attribute to the vaccine. Workers’ compensation insurance carriers and third-party administrators should require proof of a definitive diagnosis or injury directly related to the COVID-19 vaccine before holding the injury compensable.

While some employees may attempt to avoid the exclusive remedies provided by workers' compensation by asserting a deliberate intent claim, the West Virginia COVID-19 Jobs Protection Act may insulate employers from such claims. The Act specifically insulates employers from deliberate intent claims for COVID-19 infections and may also apply to injuries from vaccine mandates. This issue has not been litigated in West Virginia.

Employers should also be mindful of the West Virginia Legislature's recent passage of House Bill 335 that will allow employees to obtain medical or religious exemptions from their employers’ vaccine mandates. The bill was signed by Governor Jim Justice on October 22, 2021, and will go into effect 90 days thereafter.

By:

Charity Lawrence

304-720-4056

clawrence@spilmanlaw.com

Dill Battle

304-340-3823

dbattle@spilmanlaw.com

Spilman Thomas & Battle, PLLC

300 Kanawha Blvd, E.

Charleston, WV 25301

Spilman Thomas & Battle, PLLC is the West Virginia member of the National Workers' Compensation Defense Network. The NWCDN is a nationwide network of defense firms specializing in protecting employers and carriers in workers' compensation claims and regulatory matters. For more information, visit www.nwcdn.com.

West Virginia's COVID-19 Jobs Protection Act

By Charity Lawrence, Spilman Thomas & Battle, PLLC

The West Virginia Legislature passed the “COVID-19 Jobs Protection Act” (W. Va. Code § 55-19-1 through § 55-19-9) which prohibits certain claims against people, businesses, and entities arising from COVID-19 exposure. The Act recognizes lawsuits are being filed across the country against health care providers, health care facilities, and businesses for COVID-19 exposure. These lawsuits threaten the reopening efforts of West Virginia businesses. (W. Va. Code § 55-19-2.)

In order to facilitate and encourage the reopening and rebuilding of West Virginia’s economy, the COVID-19 Jobs Protection Act eliminates the liability of West Virginia citizens, health care providers and facilities, higher education institutions, businesses, and manufacturers, for loss, damage, personal injury, or death arising from COVID-19.  (W. Va. Code § 55-19-2.) No claims may be brought against any person, business, entity, health care facility or provider, first responder, or volunteer for loss, damage, physical injury or death arising from COVID-19, COVID-19 healthcare, or impacted healthcare (care that is offered, postponed, delayed or adversely affected as a response to COVID-19 or as a result of COVID-19).  (W. Va. Code § 55-19-4.)

Any person or business that makes or provides products in response to COVID-19 that are used by any person, healthcare provider, etc. will not be liable for personal injury, death, or property damage caused by or resulting from the products.  (W. Va. Code § 55-19-5(a)).  Likewise, any person who makes, provides, or donates household disinfecting or cleaning supplies or personal protective equipment in response to COVID-19 that does not ordinarily make such products in the ordinary course of the person’s business will not be liable for any personal injury, death or property damage resulting from the products.  (W. Va. Code § 55-19-5(b).) However, the person may be liable if the person had actual knowledge of a product defect when the product was used as intended, and acted with conscious, reckless, and outrageous indifference to a substantial and unnecessary risk that the product would cause serious injury, or if the person acted with actual malice.  (W. Va. Code § 55-19-5(c).)  The statute of limitations for those claims is one (1) year after the injury or death.  (W. Va. Code § 55-19-5(d).)

Although employees may file workers’ compensation claims for COVID-19, the COVID-19 Jobs Protection Act specifically states that deliberate intent claims for COVID-19 cannot be filed against employers. (W. Va. Code § 55-19-6.)

The COVID-19 Jobs Protection Act was signed by West Virginia Governor Jim Justice. The law is retroactive and applies to all causes of action accruing on or after January 1, 2020.  (W. Va. Code § 55-19-9.)

By:

Charity Lawrence

304-720-4056

clawrence@spilmanlaw.com

Spilman Thomas & Battle, PLLC

300 Kanawha Blvd, E.

Charleston, WV 25301

Spilman Thomas & Battle, PLLC is the West Virginia member of the National Workers' Compensation Defense Network. The NWCDN is a nationwide network of defense firms specializing in protecting employers and carriers in workers' compensation claims and regulatory matters. For more information, visit www.nwcdn.com.

West Virginia's New Intermediate Appellate Court Fundamentally Changes

Workers' Compensation Litigation Practice

By Charity Lawrence and Dill Battle

              The 2021 West Virginia Legislative Session produced a major change for West Virginia workers’ compensation litigation in the West Virginia Appellate Reorganization Act of 2021.  Specifically, Senate Bill 275 was enacted and creates an Intermediate Court of Appeals for West Virginia.  It also eliminates the Workers’ Compensation Office of Judges (“OOJ”) and establishes the West Virginia Workers’ Compensation Board of Review (“BOR”) as the initial reviewing body for objections to decisions made by insurers regarding workers’ compensation claims.

              After June 30, 2022, the OOJ will be eliminated and, effective July 1, 2022, all powers and duties of the OOJ will be transferred to the BOR.  (W. Va. Code § 23-1-1h). After this date, all objections to decisions of the Insurance Commissioner, private carrier, or self-insured employer, must be filed with the BOR instead of the OOJ.  The BOR will have exclusive jurisdiction to review objections to a decision of the Insurance Commissioner, private carrier, or self-insured employer.  (W. Va. Code § 23-5-8b).  Instead of the 3 member-panel currently comprising the BOR, the BOR will consist of 5 members appointed by the Governor.  (W. Va. Code § 23-5-11a).

              The OOJ will officially terminate on or before October 1, 2022.  (W. Va. Code § 23-5-8a).  On or before September 30, 2022, the OOJ must issue a final decision or otherwise dispose of each matter pending before the OOJ.  (W. Va. Code § 23-5-8b(b)).  If a final decision on any pending matter before the OOJ has not been entered at the time of the OOJ’s termination, that matter will be transferred to the BOR.  (W. Va. Code § 23-5-8a).  For transferred matters, the BOR will adopt any existing records of proceedings from the OOJ, conduct further proceedings, and collect evidence necessary to issue a final decision.  (W. Va. Code § 23-5-8b(b)).  The BOR must review and decide all remaining appeals filed with the BOR regarding OOJ decisions issued prior to June 30, 2022.  (W. Va. Code § 23-5-8b(e)).

              The chair of the BOR shall assign, on a rotating basis, a member of the BOR to preside over the review process and issue a decision in each objection (formerly referred to as a “protest”) properly filed with the BOR.  (W. Va. Code § 23-5-9a).  That board member may delegate his or her duties to a hearing examiner employed by the BOR, but any order or decision of the BOR (except time frame orders, continuance orders, etc.) must be issued and signed by the BOR member assigned to the objection.  (W. Va. Code § 23-5-9a).  Hearing examiners must be persons admitted to the practice of law in West Virginia with at least 4 years of experience as an attorney.  (W. Va. Code § 23-5-8a).  The chair of the BOR will supervise hearing examiners.  (W. Va. Code § 23-5-8a).  If a hearing examiner is assigned to review an objection, the hearing examiner will submit the designated record at the end of the review process to the member of the BOR who was assigned the objection, along with the hearing examiner’s recommendation of a decision affirming, reversing, or modifying the action protested.  (W. Va. Code §23-5-9a).  The board member will render a decision with findings of fact and conclusions of law.  (W. Va. Code § 23-5-9a). 

              An appeal from a BOR decision may be filed with the West Virginia Intermediate Court of Appels within 30 days of receipt of notice of the BOR decision or within 60 days of the date of the decision, regardless of notice.  (W. Va. Code § 23-5-10a).  Any employer, employee, claimant, dependent, or the Insurance Commissioner, private insurer, or self-insured employer aggrieved by a BOR decision has a right to appeal to the Intermediate Court by filing a written notice of appeal stating the grounds for review and whether oral argument is requested.  (W. Va. Code § 23-5-12a).  A filing fee of $200 may be charged to the petitioner.  (W. Va. Code § 51-11-7).  Upon appeal to the Intermediate Court, the Workers’ Compensation BOR will then send a transcript of BOR proceedings to the Intermediate Court, including a brief recital of the proceedings in the matter and each order or decision entered.  (W. Va. Code § 23-5-12a).

              The WV Intermediate Court of Appeals will have exclusive jurisdiction of:

·       decisions or orders issued by the OOJ after June 30, 2022 and prior to the OOJ’s termination, and

·       final orders or decisions issued by the BOR after June 30, 2022.

(W. Va. Code § 23-1-1h).  The Intermediate Court may affirm, reverse, modify, or supplement the decision of the BOR.  (W. Va. Code § 23-5-12a).  It may also remand the case for further proceedings.  (W. Va. Code § 23-5-12a).  A decision of the BOR will be reversed, vacated or modified if the substantial rights of the petitioner have been prejudiced because the BOR’s findings are:

·       in violation of statutory provisions;

·       in excess of the statutory authority or jurisdiction of the BOR;

·       made upon unlawful procedures;

·       affected by other error of law;

·       clearly wrong in view of the reliable, probative, and substantial evidence on the whole record; or

·       arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

(W. Va. Code § 23-5-12a).  An appeal of the Intermediate Court’s final decision may be sought by petition to the Supreme Court of Appeals of West Virginia.  (W. Va. Code § 29A-6-1).  The Supreme Court has discretion to grant or deny the petition for appeal of an Intermediate Court decision.  (W. Va. Code § 51-11-10).

              The Intermediate Court will be comprised of a three-judge panel.  (W. Va. Code § 51-11-3). Initially, the judges will be appointed by the Governor, with the advice and consent of the Senate.  Then, after the initial appointment by the Governor, the judges will be elected.  (W. Va. Code § 3-1-16, § 3-5-6e, and § 51-11-6).  The judges of the Intermediate Court must be members in good standing of the West Virginia State Bar and admitted to practice law in West Virginia for at least 10 years prior to their appointment or election, and also be residents of West Virginia for 5 years prior to appointment or election.  (W. Va. Code § 51-11-3). 

              This new legislation impacts workers’ compensation in several ways.  Eliminating the OOJ potentially eliminates experienced administrative law judges with significant knowledge (15-25 years) in workers’ compensation jurisprudence, and the practice in West Virginia.  New practice and procedure rules before the new BOR provides uncertainty of what parts of the OOJ's rules of practice and procedure will be adopted. The BOR’s ability to hire hearing examiners with only 4 years of legal experience and without workers’ compensation litigation experience may be detrimental to decisions affecting claimants, employers and insurers. However, the hearing examiners’ recommendations are not final decisions and must be reviewed by the BOR members, and the BOR members must issue the final decisions.  The hearing examiners will also be supervised by the BOR chair.  Hopefully, this will prevent the issuance of uneducated decisions.  Additionally, the new implementation of a $200 filing fee for appeals to the Intermediate Court will likely discourage claimants from appealing decisions of the Board of Review, which will decrease the overall number of workers’ compensation appeals.  SB 275 passed April 1, 2021, and is effective 90 days from passage (June 30, 2021).  The bill was sent to Governor Jim Justice on April 5, 2021, and is expected to be signed.

By:

Charity Lawrence

304-720-4056

clawrence@spilmanlaw.com

Dill Battle

304-340-3823

dbattle@spilmanlaw.com

Spilman Thomas & Battle, PLLC

300 Kanawha Blvd, E.

Charleston, WV 25301

Spilman Thomas & Battle, PLLC is the West Virginia member of the National Workers' Compensation Defense Network. The NWCDN is a nationwide network of defense firms specializing in protecting employers and carriers in workers' compensation claims and regulatory matters. For more information, visit www.nwcdn.com.

Lack of Clarity Surrounding Classification of Workers in the “Gig Economy” Drove the West Virginia Legislature to Redefine What Constitutes an Independent Contractor

On March 22, 2021, Senate Bill 272 was passed and Governor Jim Justice signed into law the West Virginia Employment Law Worker Classification Act. The bill will prevent worker misclassification and defines the differences between employees and independent contractors. As expressed in the bill: “Clarity in a worker’s classification allows businesses to comply with applicable laws, provides workers with certainty as to their benefits and obligations, and minimizes unnecessary mistakes, litigation, risk and legal exposure laws concerning workers’ compensation.”

Concerned with the lack of clarity in the legal standards used to differentiate employees from independent contractors, especially in the context of the “so-called ‘gig’, ‘entrepreneurial’, [and] ‘sharing’ economy,” the West Virginia Legislature drafted W. Va. Code §21-5I-1 et seq. to provide an objective method of making that distinction.  Additionally, the Legislature wanted to bring cohesion to the definition of independent contractor, as it can be defined differently depending on the law at issue.  In bringing cohesion to the law, the Legislature partially succeeded.  W. Va. Code §21-5I-4 will only apply “for the purpose of classifying workers” under the workers’ compensation laws in Chapter 23, unemployment compensation in Chapter 21A, the Human Rights Act in §5-11-1 et seq., and wage payment and collection in §21-5-1 et seq., it will not apply in any other area of law.

In order to qualify as an independent contractor, a worker must sign a written contract with the principal that makes it clear that the principal’s intent it to employ them as an independent contractor.  The contract must also contain five different acknowledgments for the worker to sign which help make it clear that the intent at the beginning of the relationship was to form a principal-independent contractor relationship.  For example, the worker must acknowledge that he or she is providing services as an independent contractor and that he or she will be responsible for all federal and state taxes.  The terms of the contract must “substantially comply” with all of the statutory requirements, although the statute does not define what constitutes substantial compliance.  Until there is case law on the issue, it will be impossible to determine if a contract containing 80% of the contractual requirements will be considered to be in substantial compliance. 

In addition to the contract requirements, the worker must also meet certain criteria.  The independent contractor must either file, or be contractually obligated to file, an income tax return for the fees earned from the work in question or the independent contractor must provide their services through some type of business entity, even a sole proprietorship as long as it is registered with a “doing business as.”  Further, the independent contractor must “actually and directly control[] the manner and means by which the work is to be accomplished,” which does not require that the contractor control “the final result of the work.”  This control does not extend to control necessary to ensure compliance with federal or state laws and regulations.  It also does not extend to contractually required measures regarding general safety concerns.

Finally, in addition to the requirements above, persons may either satisfy at least three of the enumerated requirements in W. Va. Code §21-5I-4(a)(4) to be classified as an independent contractor or be considered a direct seller under the Internal Revenue Code §3508(b)(2).  The requirements of W. Va. Code §21-5I-4(a)(4), are similar to the test used in other areas of the law to determine whether a worker is an independent contractor.  For example, an independent contractor is someone who controls the amount of time they spend providing services, controls where services are being performed, and is free to hire or solicit help.  Any combination of three requirements will be enough to satisfy the requirements of W. Va. Code §21-5I-4(a)(4) and no requirement holds more weight than the others do.

In conclusion, in order to be classified as an independent contractor the contract between the contractor and the principal must satisfy the writing requirements of W. Va. Code §21-5I-4(a)(1).  From there the contractor must either be required to file income taxes for the fees earned or do business through some business entity and must control how the work is to be performed.  Finally, the contractor must either meet three of the requirements of subsection W. Va. Code §21-5I-4(a)(4) or be considered a direct seller under IRC §3508(b)(2).  If the contractor does not meet these requirements, the classification test set forth in Internal Revenue Service Revenue Ruling 87-41 will determine whether the person is an independent contractor.    

By: 

Dill Battle

304-340-3823

dbattle@spilmanlaw.com

Kellen M. Shearin

304.340.3892

kshearin@spilmanlaw.com

Spilman Thomas & Battle, PLLC

300 Kanawha Blvd, E.

Charleston, WV 25301

Commissioner Dodrill's latest Bulletin is a significant change to common practice for carriers, claims adjusters, and attorneys. West Virginia Insurance Bulletin No. 21-03 interprets W. Va. Code §23-4-8(a) and the physical examination of claimants. It has long been common practice to refer to the physical examinations allowed by W. Va. Code §23-4-8(a) as "independent medical examinations" or "IMEs" despite the fact the statute does not use that term. The Commissioner believes the use of the term "independent medical examination" may lead to confusion or misunderstanding by claimants, especiallypro se claimants. The Commissioner notes the term "independent medical examination" generally refers to an examination performed by a medical examiner who has not previously been involved in claimant's care. The Commissioner notes such an independent medical examination is an examination that is independent of the traditional doctor/patient relationship. In questioning the common use of the term "IME" when the examiner is often hired by the carrier, employer, or employer's attorney to perform the examination, the Commissioner explains: "This does not mean the examination is independent in the traditional or colloquial sense, as it is oftentimes requested and paid for by the party investigating the claim or even opposing the requested benefits."

Commissioner Dodrill reminds us medical examiners have their own professional code of ethics to which they must adhere, and examinations should always be objective and unbiased. Importantly, examiners must follow the statutory guidelines, guidelines set forth in W. Va. Code of State Rules §85-20-1, et seq., and any other applicable guidelines. The Commissioner notes the historical registration and list of approved IME physicians formerly kept by the Workers' Compensation Commission is no longer available. However, examiners are required to verify and provide proof of their American Board of Medical Specialties ("ABMS") or American Osteopathic Association ("AOA") certification to whomever services are provides. See W. Va. Code of State Rules §85-20-5.9.a.

The Commissioner stated private carriers, self-insured employers and their claims administrators should use caution to ensure the use of the term "independent medical examinations" or "IMEs" is not misleading or confusing. More precise language recommended in the bulletin is "insurer's physical examination of claimant", "private carrier's physical examination of claimant", "claimant's physical examination", or "employer's physical examination of claimant", as opposed to the more generic and potentially confusing term "independent medical examination" or "IME".

W. Va. Code §23-4-8(a) provides generally that a private carrier, self-insured employer, or in the case of a claim made to a state administered workers' compensation fund, the Insurance Commissioner may, after due notice and whenever in its opinion it is necessary, order a claimant other than a claimant for occupational pneumoconiosis to appear for a physical examination before a medical examiner of its own choosing. W. Va. Code §23-4-8(a) further provides a claimant and/or an employer may also select a physician of their own choosing to, at their own expense, participate in the examination. With a limited exception in the disclosure of certain psychiatric or psychological reports, the claimant and employer shall be furnished with a copy of the report of examination made by the medical examiner retained by the private carrier, self-insured employer or the Commissioner, if applicable. A physician selected by a claimant or an employer has the right to submit a separate report.

One final sidebar is the Commissioner's statement revisions to Rule 20 are under consideration to clean up the references to IMEs in the treatment guidelines. We will monitor for  action on this front.

Dill Battle

304-340-3823

dbattle@spilmanlaw.com

Spilman Thomas & Battle, PLLC

300 Kanawha Blvd, E.

Charleston, WV 25301

West Virginia Insurance Commissioner Bulletin No. 21-01 Provides Guidance for Filing and Handling Workers' Compensation Claims for COVID-19

On January 19, 2021, the West Virginia Insurance Commissioner issued Bulletin No. 21-01 providing guidance for employers, workers’ compensation insurers, and self-insured employers regarding COVID-19 workers’ compensation claims.  The Commissioner reiterated that employees covered by their employers’ workers’ compensation insurance policies have the right to file claims for workers’ compensation benefits if the employees sustain an occupational injury.  The Commissioner noted that the term “occupational injury” includes an occupational disease, alluding that COVID-19 will be considered an occupational disease rather than an occupational injury. 

The Commissioner specified that employers may not advise employees that they cannot file workers’ compensation claims for COVID-19, nor may employers threaten retaliation for such claims.  Employers must post notices in a conspicuous place on their premises identifying their workers’ compensation insurer, including the name, business address, telephone number, and contact person to whom questions about making a claim should be directed.

The Commissioner reminded employees to give written notice of the injury immediately or as soon thereafter as practicable. Generally, employees have six (6) months to from the date of injury or death to file a workers' compensation claim for an occupational injury. The Commissioner recommended employees to file their workers' compensation claim as soon as possible after reporting the injury to the employer.  

Employers must report employee claims of occupational disease to their workers’ compensation insurance carriers within five (5) days after receiving notice that an employee desires to file a workers’ compensation claim or within five (5) days of receipt of the employee’s report of injury.  The Commissioner forbids employers to conduct screenings or causation investigations of COVID-19 claims prior to reporting the claims to their workers’ compensation carriers (or prior to processing the claim if the employers are self-insured).

When an employee files a workers’ compensation claim for COVID-19, the insurer or self-insured employer must properly investigate the claim and issue a timely written compensability decision.  Only after an insurer or self-insured employer receives a properly filed workers’ compensation claim must the insurer or self-insured employer use due diligence to investigate the employee’s claim to determine compensability.  These investigations include a determination of the cause and place of injury (COVID-19 exposure) which is germane to whether the injury occurred in the course of and as a result of the employment.  Workers’ compensation claims for COVID-19 should not be summarily refused, denied or rejected outright without a proper investigation.

Employers and healthcare providers must cooperate with workers’ compensation investigations of COVID-19 claims by timely providing medical records and other necessary information to workers’ compensation carriers or self-insured employers.

Finally, the Commissioner reminded employers that they may not terminate an employee who is off work for a compensable injury and is receiving, or is eligible to receive, temporary total disability benefits unless the employee has committed a separate dischargeable offense.  Additionally, employers cannot cancel or decrease an injured employee’s medical insurance benefits while the employee is receiving workers’ compensation benefits for a temporary disability.

Article by Charity Lawrence and Dill Battle

If you have questions or need more information, please call or e-mail Charity at 304.720.4056 or clawrence@spilmanlaw.com or Dill Battle at 304.340.3823 or dbattle@spilmanlaw.com.

Spilman Thomas & Battle, PLLC
300 Kanawha Boulevard, East
Charleston, WV 25301
304.340.3800 - office
304.340.3801 - fax
www.spilmanlaw.com

Get Keen on the Vaccine: Considerations for Employers Considering a Mandatory COVID-19 Vaccine - Webinar 

12/17/20 - 12:00 p.m. EST 

Thu, Dec 17, 2020 12:00 PM - 1:00 PM EST 

With the release of a new COVID-19 vaccine comes hopes of a return to "normalcy" and new concerns for how to protect your workforce. Can you make vaccines mandatory for your employees? If so, what considerations must you take into account as you craft your policies? In this webinar, Spilman attorneys Carrie Grundmann, Megan Mullins, and Eric Kinder will walk you through how to manage this transition while ensuring you stay compliant with existing labor and employment laws. 

https://register.gotowebinar.com/register/8129411155170322700 

By Carrie H. Grundmann 

336.631.1051 

cgrundmann@spilmanlaw.com

Coronavirus Considerations and Hot Topics Heading into 2021 

By Carrie H. Grundmann 

336.631.1051 

cgrundmann@spilmanlaw.com 

When much of the country locked down in March 2020, very few expected us to still be dealing with this pandemic in December 2020. And yet, here we are. In fact, coronavirus cases are rising sharply throughout much of the country, and the prospect of additional shutdowns is growing more probable by the day. Not all news is bad. Pfizer, Moderna and AstraZeneca have produced what appear to be viable vaccines that could be available as early as this month. As we look to 2021, here are a few issues that employers should have on their radar. 

Expiration of Paid Leave Under FFCRA 

Since April 2020, many employers have been providing up to two weeks of paid sick leave and 10 weeks of paid family medical leave to employees impacted by the coronavirus pursuant to the Families First Coronavirus Response Act ("FFCRA"). Barring an agreement being reached in Congress to extend these leave laws (which seems unlikely between now and the inauguration), these paid leave provisions -- and the employer tax credits associated with providing the leave -- expire on December 31, 2020. 

Employers should take steps now to determine how they will handle absences related to COVID-19 after December 31, 2020. Even where an employer chooses to discontinue paid leave, they should still provide flexibility, including considering telework, to employees who must be absent because of COVID-19. 

Once you have determined how you will handle COVID-19 absences, communicate with your workforce. All employees should be provided advance notice that the FFCRA expires at the end of December as well as how COVID-19-related leave will be handled after that. If there are employees who will be out on FFCRA-related leave as of December 31, 2020, you should clearly communicate with them how their paid leave will be impacted, if at all. 

Mandatory Coronavirus Vaccinations for the Workplace 

With viable vaccines on the horizon, many employers want to know: Can they require employees to get vaccinated? 

The answer is yes, but with exceptions. 

In 2009, the EEOC issued guidance on this very issue, but in the context of the flu shot vis-à-vis H1N1. As part of its 2020 guidance to employers, the EEOC reissued its 2009 guidance, thus, it is clear the EEOC would recognize certain exceptions to any mandatory vaccination requirement. According to the EEOC, employees may be exempt from an employer's mandatory vaccination requirement under one of the following circumstances: 

The Americans with Disabilities Act may exempt an individual who has a disability that prevents them from getting the vaccination; or 

Title VII of the Civil Rights Act requires employers to grant an accommodation to an employee where his/her sincerely held religious belief prevents them from receiving a vaccination. 

Employers faced with either a disability or a religious exemption should engage in an interactive discussion with the employee to determine what accommodation might be granted. In many cases, the appropriate accommodation will be an exemption from the vaccination, perhaps coupled with other safeguards, such as mandatory mask usage even when other employees are no longer required to wear theirs. Regardless, employers remain free to encourage (rather than require) and/or facilitate employees receiving the vaccination. While there is no requirement that employers pay for these vaccines, employers may find the convenience of providing vaccinations to its workforce to be worth the cost in light of increased productivity, much like some employers have long provided free flu vaccinations. 

The situation with the coronavirus remains in flux and likely will remain so for the near future. Employers who have questions about handling coronavirus issues should contact their legal counsel, or the Spilman COVID-19 Task Force. 

Chronic condition or new injury?

Two cases recent cases decided by the West Virginia Supreme Court of Appeals address the frequent debate in claims management of whether an injured employee's disabling condition was caused by a preexisting chronic condition or a new injury.

In West Virginia University v. Jess Shaffer, No. 18-1067, (W. Va. July 9, 2020) (memorandum decision), the West Virginia Supreme Court of Appeals reversed and remanded the October 30, 2018 decisions of the Board of Review with instructions to reinstate the December 9, 2016, January 16, 2017, and August 10, 2017 claims administrator decisions. The Court's decision demonstrates the importance of discovery of evidence of treatment for preexisting chronic conditions.

In a 6-0 Memorandum Decision, the Court found the Board of Review's decision was so clearly wrong even when all inferences are resolved in favor of the Board's findings, that there is insufficient evidence to support the decision. The Court found the medical evidence clearly shows the claimant had bilateral shoulder degenerative changes several years before the compensable injury, including MRI evidence showing degenerative joint disease with impingement of the rotator cuff causing tendonitis, treatment notes showing rotator cuff tendonitis on the left and degenerative joint disease and impingement on the right, and a physician's record review opinion these conditions indicate a predisposition to degenerative rotator cuff tears.

The court also pointed to the claimant's family physician's deposition testimony that it is difficult for him to determine if the rotator cuff tears are the result of degeneration or trauma. He testified he usually refers patients to a specialist to make a determination, and further stated he did not discuss prior shoulder issues with claimant. The Court noted the family physician was the only physician to opine the injury resulted in bilateral rotator cuff tears. The Court contrasted the opinion of an orthopedist who found chronic degenerative changes throughout both shoulders. The Court also noted two physicians reviewing the medical history had the same findings related to preexisting degenerative changes in the shoulders.

Another decision by the West Virginia Supreme Court demonstrates the importance of documenting preexisting chronic conditions in an injured employee. InKathleen J. Crockard v. Wheeling Hospital, Inc., No. 18-1026, (W. Va. July 9, 2020) (memorandum decision), the Court affirmed the October 29, 2018 decision of the Board of Review which affirmed the May 16, 2018 Administrative Law Judge Decision. The May 16, 2018 ALJ Decision had reversed the claims administrator's November 3, 2017 order rejecting the claim. The issue for appeal was compensability of the claim on a no-lost-time basis.

Claimant suffered a lumbar sprain injury lifting a box while at work. She was immediately taken to the emergency room and diagnosed with a lumbar sprain, but it was indicated she would not be off work for four or more days. While the specific reason for the claim administrator's rejection of the claim is not identified by the Court, it likely was due to evidence claimant had a prior low back injury and MRI evidence of a herniated lumbar disc that predated the injury. The ALJ reversed the claims administrator's rejection of the claim and held the claim compensable for lumbar sprain/strain on a no-lost-time basis. Relying onJordan v. State Workers' Compensation Commissioner, 156 W. Va. 59, 191 S.E.2d 497 (1972), the ALJ found that just because an employee has a preexisting condition, does not mean he or she cannot suffer a new injury in the course of employment. When there is evidence of a preexisting injury, a new claim is compensable when it is the result of a definite, isolated, fortuitous occurrence.

The ALJ determined that the evidence shows the claimant had at least two prior lower back injuries, one of which occurred in the course of her employment. She reported right lower extremity pain prior to the injury at issue, but had no complaints of lower back pain at that time. The ALJ determined that the evidence shows the claimant was lifting a box when she sustained a lower back injury and was escorted to the emergency room, satisfying the requirements of a definite, isolated, fortuitous event. Claimant was diagnosed with a low back strain, and it was indicated that she would not be off work for four days or more. The ALJ found that she eventually underwent L4-5 microdiscectomy surgery for a herniated lumbar disc. The disc was herniated prior to the compensable injury, as seen on MRI, and is therefore unrelated to the claim. The claimant's continued temporary total disability was determined to be the result of the non-claim-related surgery. The ALJ therefore found that while the claim was compensable for a lumbar sprain, temporary total disability benefits should not be granted. The Board of Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed its Order.

The Court noted that pursuant to West Virginia Code § 23-4-1, employees who receive injuries in the course of and as a result of their covered employment are entitled to benefits. For an injury to be compensable it must be a personal injury that was received in the course of employment, and it must have resulted from that employment. Barnett v. State Workmen’s Compensation Commissioner, 153 W. Va. 796, 172 S.E.2d 698 (1970). Temporary total disability benefits will be granted when the period of disability is greater than three days. W. Va. Code § 23-4-1c. A claimant must submit evidence that he or she is unable to return to employment as a result of the compensable injury.

In this case, the Court found it is clear that the claimant sustained a lumbar sprain in the course of and resulting from her employment. However, MRIs taken shortly before and after the injury show that the claimant's herniated lumbar disc preexisted the compensable injury and is therefore not compensable. The Court found the claimant's continued inability to work is the result of her lower back surgery, necessitated by the noncompensable herniated disc. Accordingly, the claim was properly held compensable on a no-lost-time basis for lumbar sprain.

Article by Dill Battle

If you have questions or need more information, please call or e-mail Dill Battle at 304.340.3823 ordbattle@spilmanlaw.com.

Spilman Thomas & Battle, PLLC
300 Kanawha Boulevard, East
Charleston, WV 25301
304.340.3800 - office
304.340.3801 - fax
www.spilmanlaw.com