State News : West Virginia

  West Virginia Supreme Court Impeachments - Latest Developments and Update

August 14, 2018

 August 14, 2018 update

 There have been significant developments in recent days regarding the Articles of Impeachment brought against the four remaining Justices of the Supreme Court of Appeals of West Virginia.   

 On August 9, 2018, Chief Justice Workman issued an Administrative Order temporarily appointing the Honorable Paul T. Ferrell, Judge of the Sixth Judicial Circuit, to serve on the Supreme Court during Justice Loughry's suspension. Judge Ferrell's assignment commenced immediately and will continue until the Chief Justice determines such assistance is no longer necessary. Justice Workman's Order further notes that should the Articles of Impeachment brought forth by the House Judiciary Committee proceed to the Senate for trial, Judge Ferrell will serve at the Acting Chief Justice for any impeachment proceedings. 

 On Monday, August 13, the House of Delegates convened for a 14-hour floor session and voted to adopt eleven separate Articles of Impeachment put forth by the Judiciary Committee. 

 Following the votes in the House of Delegates, on August 14, 2018, Justice Robin Davis announced her immediate retirement from the Supreme Court. Justice Davis's retirement means that the unexpired six years of her term (until 2024) will also be on the ballot in the November 2018 general election. As previously reported, Justice Ketchum's seat will also be on the ballot in the November 2018 general election. Prior to that election, Justice Davis's position on the Supreme Court could be filled by an appointee of the Governor of West Virginia, or Chief Justice Workman could fill the seat through use of temporary appointment powers.

The remaining articles of impeachment approved by the House of Delegates against Justices Loughry, Walker, and Workman will go to the State Senate for trial. At this time, there is no timetable for any proceedings before the Senate, however, impeachment of any Justice would require a 2/3 vote in the Senate for conviction and potential removal from office. 

 The Supreme Court's Fall Term is scheduled to begin on September 5, 2018.

 If you have specific questions, reach out either to your Spilman contact, or Andrew P. Arbogast (Chair, Litigation Department), or Don C. A. Parker (Chair, Appellate Group) for more information. 

West Virginia Supreme Court Impeachments - Latest Developments and Update

August 9, 2018

On August 7, 2018, the Judiciary Committee of the West Virginia House of Delegates voted to move forward with 12 articles of impeachment against four sitting justices of the Supreme Court of Appeals of West Virginia stemming from alleged overcompensation of senior status judges, improper use of state property, and inappropriate use of state funds. Articles of impeachment were brought against Justices Allen Loughry, Margaret Workman, Robin Davis, and Beth Walker. No articles were issued against Justice Menis Ketchum, who previously resigned his position on the Court. Justice Ketchum's seat will be on the ballot in the November 2018 general election. Prior to that election, his position on the Supreme Court could be filled by an appointee of the Governor of West Virginia.

The full House of Delegates is scheduled to convene on Monday, August 13 to consider the articles of impeachment put forth by the Judiciary Committee against the four remaining justices. Any articles of impeachment approved by the House of Delegates will go to the state Senate for trial. Impeachment of any justice would require a 2/3 vote in the Senate.

This is an historic event in West Virginia politics and for the judicial branch, for which the implications are unprecedented. Many questions remain regarding how cases on appeal before the Supreme Court will be addressed. The Supreme Court is currently in recess, with case conferences for the coming term scheduled to begin on August 28, 2018. The Court is scheduled to hear the first oral arguments of the new term on September 5, 2018.

This situation is fluid with many variables in play. Spilman is monitoring the situation on a daily basis, and will keep you updated with any breaking news. If you have specific questions, reach out either to your Spilman contact, or Andrew P. Arbogast (Chair, Litigation Department) aarbogast@spilmanlaw.com, or Don C. A. Parker (Chair, Appellate Group) dparker@spilmanlaw.com for more information.

In Silverti v. Ohio Valley Nursing Home, Inc. (No. 17-0746 April 11, 2018), the West Virginia Supreme Court ruled that a workers' compensation claimant who is ordered to attend a medical examination shall be reimbursed his or her reasonable travel expenses incurred in connection with attending the ordered medical examination. These travel expenses include, at a minimum, reasonable expenses for meals, lodging, and mileage. The case involved the denial of the cost of one meal incurred by the claimant who traveled 100 miles from his home for an IME scheduled on behalf of the employer. The claimant spent 6 hours for traveling to, attending and returning from the IME, during which time he ate one meal. He sought reimbursement for the meal expense he incurred while attending the medical examination. The employer argued the claim administrator did not have to reimburse the claimant for reasonable costs of meals because his travel did not require overnight lodging. The employer's argument relied on workers' compensation regulation W. Va. C.S.R. §85-1-15.1 which used as a guide a regulation for state employee travel limiting the meal reimbursement. The Court determined the state employee travel regulations requiring an overnight stay before reimbursing meal expenses conflict with the statutory requirement in the workers' compensation statute governing medical examinations (W.Va. Code §23-4-8), and may not contravene the statute.  

The Court addressed in a footnote the employer's assertion allowing such reimbursement would lead to meal expense requests for a medical examination even if in a claimant's neighborhood.  The Court explained “[t]his case should not be read to require a party who orders a medical examination of a workers’ compensation claimant to reimburse the claimant for ‘travel expenses’ when the claimant did not travel outside the area in which he or she resides to attend the medical examination.” Silverti, n. 15. The Court further states that the “Insurance Commissioner can curtail a claimant’s reasonable (i.e., reimbursable) travel expenses by requiring claims administrators to comply with W.Va. Code St. R. §85-1-15.6 [2009], which provides: ‘The responsible party shall arrange for examination as near as practicable to the claimant’s residence.”Id.

The primary directive from the case is a claim administrator must reimburse for reasonable travel expenses including meals when the claimant travels outside the area in which he or she resides to attend a medical examination or IME. Justice Walker dissented and reserved the right to file a dissenting opinion, so she may provide more insight on reasonable travel expenses.  

Article by Dill Battle

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

H. Dill Battle III, Esq.

Spilman Thomas & Battle, PLLC
300 Kanawha Boulevard, East
Charleston, WV 25301
304.340.3823 - office
304.340.3801 - fax
hdbattle@spilmanlaw.com

In Bandy v. Murray American Energy, Inc., No. 16-1165 (W. Va. October 18, 2017), the West Virginia Supreme Court of Appeals addressed Mr. Bandy's constitutional challenge to the mandatory statutory attorney fee in W. Va. Code § 23-5-16(c). In a Memorandum Decision, the Court ruled the statutory maximum attorney fee is not an unconstitutional interference with claimant's access to the judicial system and the deprivation of due process of law. In light of the Florida Supreme Court decision inCastellanos v. Next Door Company, the West Virginia Supreme Court sidestepped the issue, stating that although the claimant couched his appeal as a constitutional issue, they found it to be a policy argument, and noted that policy arguments are more appropriately directed to the Legislature. The Court found that the attorney fee statute does not deprive claimants of due process or the ability to retain counsel.  

Carpal Tunnel Syndrome

In Stover v. Charleston Area Medical Center, No. 16-1195 (W. Va. September 15, 2017), Ms. Stover alleged she developed bilateral carpal tunnel syndrome in the course of and resulting from her employment as a data entry clerk and linen department worker. An EMG performed on January 28, 2014, showed severe bilateral CTS. Her doctor noted that Ms. Stover used to be a data entry professional but lost her job two years prior because she could not perform her duties due to numbness and tingling in both hands. Her chronic problems included diabetes, fibromyalgia, hypertension, and obesity. She was assessed with carpal tunnel syndrome and cubital tunnel syndrome. Her doctor advised Ms. Stover that part of her symptoms could be due to diabetic neuropathy. Ms. Stover underwent right carpal tunnel release surgery on April 29, 2014. Her workers' compensation claim was rejected. An IME doctor opined the diagnosis of bilateral carpal tunnel syndrome is solely the result of Ms. Stover’s personal risk factors and is unrelated to her former occupation. Dr. Bailey stated that she has suffered many other consequences of her long standing morbid obesity including type II diabetes, diabetic peripheral neuropathies of her hands and feet, hypertension, high cholesterol, gastroesophageal reflux disease, and early onset arthritis. In its 5-0 Memorandum Decision, the Court concluded Claimant's job duties do not involve awkward wrist positioning, vibratory tools, significant grip force and high force of repetitive movements that have been shown to contribute to carpal tunnel syndrome. In addition, she has pre-existing medical conditions known to cause carpal tunnel syndrome.

Going to and Coming from Work Rule

In Ferrell v. Charleston Area Med. Ctr., No. 16-0581, (W. Va. June 8, 2017), the Supreme Court affirmed a prior decision to reject plaintiff's claim for workers' compensation benefits after plaintiff was struck by a delivery truck in a public street as she walked to work. The Court here relied on the rule from Williby v. W. Virginia Office Ins. Com'r, 686 S.E.2d 9 (W.Va. 2009), which states that an injury incurred while traveling to work, and not on the premises of the employer, does not give rise to a compensable injury unless the place of injury was brought into the scope of employment by an express or implied requirement in the contract of employment. Applying this rule to the facts in this case, the Court relied on surveillance footage of the accident, a traffic report, and testimony from two witnesses to the accident that clearly established the claimant was in the middle of the road when she was struck, and not on the employer's property, nor was she performing any express or implied duties for the employer when the accident occurred. Therefore, the claimant was not entitled to compensation from her employer for the injury sustained. 

Preexisting Degenerative Conditions 

In Powley v. W. Virginia University, No. 16-0753, (W. Va. June 8, 2017), the Court affirmed prior decisions denying a psychiatric consultation and prior decisions denying a request to add depressive disorder, spinal stenosis, and lumbosacral strain as compensable conditions in the claim. The Court noted the claimant's long history of lumbar spine problems prior to the compensable sprain/strain injury and the fact that he had a lumbar MRI the day before the injury due to complaints of back pain. The pre- and post-injury MRI findings did not change, so the Court adopted the medical opinions of two doctors who opined the claimant's continued complaints were related to the preexisting lumbar spine condition, and that there was no evidence supporting the assertion that a psychiatric component should be added because the claimant's depression was in no way related to the injury at issue in this claim.  

In Davis v. Pinnacle Mining Co., LLC, No. 16-0736, (W. Va. June 8, 2017), the Court affirmed a prior decision denying plaintiff's request for authorization of three transforaminal epidural steroid injection claims because the requested injections were aimed at treating pre-existing degenerative conditions rather than the injury which resulted from the accident at issue. The Court adopted the findings of an independent medical evaluation and held that the requested injections do not constitute medically necessary and reasonably required treatment in relation to the compensable lumbar sprain/strain. Furthermore, the Court noted that the medical evidence of record demonstrates that the majority of the claimant's lumbar spine pathology is degenerative in nature and predates the injury at issue, and the Court agreed with the independent medical evaluation in determining the claimant had reached maximum medical improvement with respect to the injury, and any further treatment, including pain management, would be aimed at treating underlying pre-existing degenerative disease. 

In Conley v. Parkways Economic Development & Tourism Authority, No. 16-0896, (W. Va. August 2, 2017), the Court decided cervical radiculopathy should not be added as a compensable condition of the claim. The Court agreed with the findings of the Office of Judges as affirmed by the Board of Review that the only cervical MRI of record has been interpreted to show the claimant's cervical issues were degenerative in nature as opposed to being caused by an acute injury.  Further, the claimant had extensive treatment related to his cervical spine prior to the compensable injury.  

Article by Dill Battle and Karin Weingart

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

H. Dill Battle III, Esq.

Spilman Thomas & Battle, PLLC
300 Kanawha Boulevard, East
Charleston, WV 25301
304.340.3823 - office
304.340.3801 - fax
hdbattle@spilmanlaw.com

Later this year, the Supreme Court of the United States will address the enforceability of class action waivers in employment arbitration agreements inErnst & Young LLP v. Morris. The Supreme Court’s decision will resolve a disagreement among the National Labor Relations Board (“NLRB”) and several courts of appeals over whether arbitration agreements that prohibit employees from participating in “any class, collective, or representative proceeding” violate the employees’ right to engage in concerted activity under the National Labor Relations Act (“NLRA”). If the Supreme Court rules that class action waivers violate the NLRA, then the decision whether to include such waivers in employment arbitration agreements is easy. Otherwise, employers will have to consider several pros and cons when deciding whether class action waivers should be included in their employee arbitration agreements.

Countless newsletters and client alerts have been written about the pros and cons of employment arbitration agreements in which an employee and employer agree to arbitrate disputes between them rather than sue each other in court.See, e.g., Peter R. Rich, Pros and Cons of Employee Arbitration Agreements – A Practical Discussion. It is now well settled that courts will enforce employment arbitration agreements like any other contract.See Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001). A class action waiver adds another layer of protection to the agreement: it requires that an employee arbitrate claims against an employer on an individual, rather than collective, basis.

While courts have enforced class action waivers outside the employment context,e.g., Salem Int’l Univ., LLC v. Bates, 793 S.E.2d 879 (W. Va. 2016), the NLRA adds a wrinkle for agreements involving employees protected by the NLRA. Under section 7 of the NLRA, employees have the right to engage in concerted activity for, among other things, their mutual aid and protection. This includes employees’ efforts “to improve their working conditions through resort to administrative and judicial forums.”Eastex, Inc. v. NLRB, 437 U.S. 556, 565-566 (1978). In 2012, the NLRB proclaimed that, “notwithstanding the Federal Arbitration Act,” agreements to arbitrate on an individual basis (and waiving the right to proceed on a class or collective basis) with non-management employees violate section 7 of the NLRA. D. R. Horton, Inc., 357 N.L.R.B. 2277 (2012).

Since D. R. Horton, several courts of appeals have considered the NLRB’s position. The Second, Eighth and Fifth Circuits have rejected the NLRB’s position. Consequently, federal courts in 13 states (Connecticut, New York, Vermont, Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota, Texas, Louisiana and Mississippi) will enforce class action waivers in employment and arbitration agreements. The Seventh and Ninth Circuits, however, supported the NLRB’s position, meaning federal courts in seven states (Illinois, Indiana, Wisconsin, Alaska, Arizona, California and Hawaii) willnot enforce class action waivers in employment arbitration agreements. That is the issue the Supreme Court will resolve during the upcoming term inErnst & Young LLP v. Morris. The Fourth Circuit, which includes federal courts in Maryland, North Carolina, South Carolina, Virginia and West Virginia, has ordered that an appeal of a district court opinion rejecting the NLRB’s position be held in abeyance pending the Supreme Court’s decision in Ernst & Young LLP v. Morris. Carmax Auto Superstores, Inc. v. Sibley, 215 F. Supp. 3d 430, 432 (D. Md. 2016).

If the Supreme Court holds that class action waivers violate the NLRA, then the decision for employers is easy—do not include class action waivers in employment arbitration agreements with non-management employees. If, however, the Supreme Court holds that class action waivers do not violate the NLRA, employers will have to decide whether to include these provisions in employment arbitration agreements. Rather than blindly assume they will be better off with class action waivers, employers should critically assess whether they are desirable for their business. There are obvious benefits to class action waivers. They eliminate the risk of the legal blackmail that accompanies the exponential nature of exposure in class actions. Also, negotiating a settlement with one person is always easier than several. The consequences are less obvious. Class actions can efficiently resolve an entire class of employees’ claims all together. Instead of worrying about litigating several copycat claims, an award for the employer or settlement may wipe out all class members’ claims. On the other hand, if the employer wins the initial individual arbitration case, it may serve to dissuade prospective copycats from bringing the same claim, which effectively achieves the same effect.

Of course, if you have any questions about the pros and cons of class action waivers, please contact us.

Mitchell J. Rhein

Associate

Spilman Thomas & Battle, PLLC

304.340.3889

mrhein@spilmanlaw.com

Fall 2016 West Virginia Case Report and Workers’ Compensation Market Commentary

Supreme Court Report

The West Virginia Supreme Court of Appeals Court continues a trend of reporting decisions reflecting the privatization of the insurance market where multiple carriers have to determine compensability of preexisting injuries to current compensable claims, allocate charges from a claim among multiple employers, and calculate impairment from preexisting injuries.

One of the first cases argued before the West Virginia Supreme Court of Appeals in its September 2016 Term wasPioneer Pipe v. Swain, et al., No. 15-0397 (September 19, 2016), in which the Court adopted the OIC’s interpretation it is not mandated to allocate and divide charges for occupational hearing loss claims. The Court’s ruling confirms the OIC’s position allocation in hearing loss claims is a discretionary obligation in West Virginia which is in line with practice in a majority of states. The Court complained W. Va. Code 23-4-6b(g) is a “confusing, poorly-drafted anachronism, a vestibular flicker of the old workers’ compensation system” before privatization. The Court also noted its repeated recognition workers’ compensation law is a “miasma” that is a “sui generis, jurisdictional hodge-podge that stands alone from all other areas of the law, causing decisions rendered in the workers’ compensation arena to be almost wholly unusable in any other area of the law, and vice-versa.” Clearly four justices held their collective noses while making a decision where Pioneer Pipe is responsible for the entirety of a thirty-three year history of noise exposure for an employee with a mere forty hours of exposure at Pioneer Pipe. In her dissenting opinion, Justice Davis found the OIC’s policy injured Pioneer Pipe by denying its right to due process to make an individual determination of allocation on the merits, by preventing Pioneer Pipe from having other employer’s share in the “costs” of a hearing loss claim, and by prohibiting Pioneer from showing it should not be part of the case at all because the claimant worked only forty hours and not the sixty days as required by the statute.   

In the January Term of Court, two cases address compensability of preexisting injuries and the proper methodology for calculating preexisting impairment.

In syllabus point 3 of Gill v. City of Charleston, 783 S.E.2d 857, 858 (W. Va. 2016), the Court held:

“A noncompensable preexisting injury may not be added as a compensable component of a claim for workers' compensation medical benefits merely because it may have been aggravated by a compensable injury. To the extent that the aggravation of a noncompensable preexisting injury results in a discreet new injury, that new injury may be found compensable.”

In SWVA, Inc. v. Birch, 787 S.E.2d 664, 665 (W. Va. 2016), the Court held the proper methodology for determining preexisting impairment is to “deduct the impairment attributed to the preexisting injury from the final whole person impairment rating as determined under West Virginia Code of State Rules § 85-20.” This decision reflects continued reliance on the AMA Guides to the Evaluation of Permanent Impairment, 4^th Edition, and the impairment tables in Rule 20 of the Code of State Rules.

Market Commentary

Declining premium volume is a challenge for carriers as the West Virginia economy struggles with residual loss of business connected to the distressed coal mining and oil & gas industries and the continued economic recession. The workers’ compensation insurance market is sound. As reported by the National Council on Compensation Insurance (NCCI) at its 2016 State Advisory Forum, loss cost decreases continue in West Virginia for the 12^th year in a row. NCCI reported lost-time frequency continued to decline in 2016, but was higher compared with other states in the region. In a press release issued July 29, 2016, Governor Earl Ray Tomblin announced West Virginia employers will see a projected $36 million reduction in workers’ compensation premiums this year, and have seen a savings of more than $352 million since the privatization of workers’ compensation insurance in 2006. NCCI recently filed a proposed reduction of 14.7% in workers’ compensation loss cost rates with the Offices of the Insurance Commissioner. The loss cost rate is effective November 1, 2016. This is the 12th consecutive reduction since privatization and accounts for a cumulative decrease of 69.1% from pre-reform levels. A proposed 14.4% rate decrease for the assigned risk market also was filed by NCCI. Litigation trends also reflect the enduring impact of privatization with the September 8, 2016 report to the Industrial Council by the Office of Judges showing continuing decline in protests acknowledged by the OOJ: 2268 through August 31 compared to 3709 for 2015.

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

H. Dill Battle III, Esq.

Spilman Thomas & Battle, PLLC

300 Kanawha Boulevard, E.

Charleston, West Virginia 25301
304.340.3823 - office
hdbattle@spilmanlaw.com

Until Death Do Us Part – Divorce and HIPAA Violations: A Lesson in Safeguarding Protected Health Information  

By Mitchell J. Rhein, Spilman Thomas & Battle, PLLC

The Office of Civil Rights (“OCR”), a division of the Department of Health and Human Services, recently took the rare step of imposing civil monetary penalties against a large home health provider for violating the Health Insurance Portability and Accountability Act (“HIPAA”), highlighting the importance of developing written policies that meet the realities of how and where employees use documents with patients’ personal health information (“PHI”).

HIPAA creates privacy rights and protections for consumers of health services. To ensure these rights are protected, entities that possess and transmit PHI, defined as “covered entities,” are required to safeguard that information. Lincare provides respiratory care, infusion therapy and medical equipment to in-home patients. Because Lincare employees often travelled to patients’ homes, they routinely had to take protected health information into the field to perform their duties. However, Lincare also had a practice of requiring its employees to keep copies of documents containing PHI in their vehicles so that they could access the information if the physical office were destroyed or otherwise made inaccessible. These practices are not, in and of themselves, HIPAA violations. However, Lincare was required to develop and implement policies and procedures, in either written or electronic form, reasonably designed to protect its patients’ PHI while those documents were out of the office.

The problem is this case arose when a Lincare employee kept documents with PHI in her car even though she knew that her husband had keys to the car. The employee and her husband had a falling out. The employee moved out of her home and left her car – and the documents – behind. Months later, the husband reported to Lincare and the OCR that he had the documents. The OCR investigated and found that, while Lincare had a written policy designed to safeguard PHI within its offices, it did not have a policy addressing PHI taken into the field. Accordingly, OCR concluded that Lincare violated HIPAA and imposed a penalty of nearly $240,000.

Lincare contested the penalty to an Administrative Law Judge (“ALJ”), offering the defense that it was a victim of theft. Lincare claimed that the employee’s husband stole the documents and reported them to Lincare and OCR in an attempt to induce his estranged wife to return to him. The ALJ found this to be an ill-conceived defense because, assuming Lincare’s version of the breach were true, it was more damaging to their case. The ALJ noted that HIPAA required Lincare to take reasonable steps to protect PHI from theft and the alleged theft in this case only highlighted the fact that Lincare failed to adopt any policies and procedures to safeguard PHI taken into the field. Accordingly, the ALJ upheld the OCR’s penalty.

For covered entities, this case illustrates the importance of assessing the realities of how and where your employees use PHI. In a perfect world, PHI would never leave the safety of a locked file cabinet. In reality, employees often need to take PHI outside of the safety of the file cabinet or even the office to perform their duties. If a covered entity does not adopt written policies and procedures to address the realities of how and where PHI is being used, they may be risking significant civil penalties.

Mitchell Rhein

Spilman Thomas & Battle, PLLC

304.340.3889

mrhein@spilmanlaw.com

On November 18, 2015, the West Virginia Supreme Court of Appeals issued a new signed opinion inGoff v. W. Va. Dept. of Natural Resources, expanding benefits for a statutory rated loss of vision in one eye. In a Memorandum Decision also released November 18 the Court delineated calculation of Average Weekly Wage. In an October 18 order, the court set oral argument and invited interested parties to file amicus briefs by December 1, on the question of the correct methodology for apportioning the level of impairment in workers’ compensation cases involving preexisting conditions.

Goff and W. Va. Office of Ins. Comm., (No. 14-0977, November 18, 2015)

In a signed opinion, the Supreme Court addressed whether a claimant who lost an eye because of a workplace injury is limited to the statutory award in W. Va. Code § 23-5-6(f) for loss of vision in one eye. The Court allowed additional impairment for the physical removal of his right eye, in addition to the previously awarded statutory amount of the loss of vision in his right eye. In a new Syllabus point, the Court held: “The statutory percentage disability award contained within W. Va. Code § 23-5-6(f) (2005) for the total functional loss of vision of an eye caused by an occupational injury does not preclude an additional award, if appropriate, for permanent disfiguring effects and other permanent disabling effects caused by the physical removal of the eye itself.”

Claimant was struck in the right eye by a brier. His eye became infected and ultimately was removed. He was fitted with a prosthetic eye, but needed continuing treatment for conjunctivitis, blepharitis (eyelid inflammation) and other conditions related to the eye socket itself. In addition, medical reports indicate claimant suffered a permanent disfigurement to the area around the eye. The claimant was awarded 33% statutory permanent partial disability award under W. Va. Code § 23-5-6(f) for “the total and irrevocable loss of sight in one eye.” Nothing was awarded for the permanent impairment caused by his continuing problems with infections and related conditions in his right eye socket or for the permanent disfigurement caused by his eye injury. The Court held “the Legislature chose its words carefully, focusing on something short of a total physical loss of the eye – limiting its words to the ‘loss of vision’ or ‘sight’ of the eye, rather than the impairments related to the loss of the physical eye itself. Giving effect to this plainly worded statute, we therefore hold that the statutory percentage disability award contained within W. Va. Code § 23-5-6(f) (2005) for the total functional loss of vision of an eye caused by an occupational injury does not preclude an additional award, if appropriate, for permanent disfiguring effects and other permanent disabling effects caused by the physical removal of the eye itself.”

Lowry v. Team Environmental LLC and W. Va. Office of Ins. Comm., (No. 13-1125, November 18, 2015)

In a Memorandum Decision, the Supreme Court provided clear direction on how to calculate a claimant’s daily wage, the basis upon which temporary total disability and other benefits are established. Giving the words in the statute their ordinary and familiar meaning, the language of W. Va. Code § 23-4-14(b)(2) provides that in choosing between computing an injured worker’s benefits using his or her daily rate of pay or the weekly average derived from the best quarter of wages of the preceding four quarters, the computation which must be used is the one which is “most favorable to the injured employee.” There was a factual dispute whether the injured claimant was a full-time employee or a contractor whose work was intermittent. The claimant based his weekly wage on earning $16.00 per hour for a forty-hour work week which is what he was paid the day before his injury. He based his weekly wage on multiplying a forty-hour work week by his hourly rate of pay, and then dividing the number by a five-day work week, for a daily rate of pay of $128.00, and a corresponding average weekly wage of $640.00. Conversely the employer and the claims administrator used an average weekly wage of $595.38 calculated from 1099-MISC forms and checks from earnings in the fourth quarter of 2010, which was the highest-paid quarter of the year preceding the quarter of the year in which the injury happened. The daily rate of pay most favorable to the claimant was the one proposed by him and adopted by the court.

Cases from January 2015 Term of Court

In the January 2015 Term of Court, the Supreme Court issued three signed opinions. In two cases, the Court drastically diminished the enforceability of temporal limitations on claims brought under the West Virginia Workers’ Compensation Act. InSheena H. for Russell H. v. Amfire, the court ruled the claim of a dependent of a deceased employee may be accepted beyond the statute of limitations, until the dependent could reasonably learn the death was work-related.Hammons v. A & R Transport, Inc., allows claimants to apply for permanent partial disability benefits after the statutory period, if lengthy litigation on the underlying claim extended beyond the time limitation. These decisions allow injured employees, or their dependents, to claim benefits under the Worker’s Compensation Act beyond the limited time determined by the West Virginia Legislature.

Sheena H. ex rel. Russell H., et al. v. Amfire, LLC, 235 W.Va. 132, 772 S.E.2d 317 (2015)

This case addressed the tolling of the six month statute of limitations period in which W. Va. Code § 23-4-15(a) permits dependents of deceased employee to apply for death benefits under the Workers’ Compensation Act. In answering this question affirmatively, the Court utilized canons of statutory construction to avoid absurd results and overcome lack of explicit statutory permission for extending the jurisdictionally limited six month period. Ultimately, the Court decided the limitation period may be tolled under the limited circumstance in which the dependent is unaware of the work-related injury’s role in the death of a decedent because of delay by the medical examiner in preparing the autopsy which determined the cause of death. 

The peculiar facts produced a narrow holding. The decedent received a traumatic head injury while on the job. The decedent went to the hospital, returned to work less than three days later, and died in his sleep twenty-one months after the head injury. A medical examiner performed an autopsy the day after the decedent’s death; however, the medical examiner did not release the autopsy report for eight months. The autopsy report was the first, and only, indication a work-related injury caused the decedent’s death. The delay in the release of the autopsy prevented the dependents of the deceased from timely applying for death benefits within six months after the date of death in accordance with W. Va. Code § 23-4-15(a).

The Court determined the unique facts of this case were likely not considered by the legislature at the adoption of W. Va. Code § 23-4-15(a). The Court, to avoid what it characterized as a patently unfair and absurd result, determined the legislature could not have intended a claim for death benefits to be untimely simply because of a medical examiner’s delay. The Court buttressed their decision by reaffirming the purpose behind the time limitation of the Workers’ Compensation Act – to protect employers from frivolous claims and to afford claimants sufficient opportunity to investigate a claim before filing it. 

Hammons v. W. Virginia Office of Ins. Com'r, 235 W. Va. 577, 775 S.E.2d 458, 460 (2015)

The Court held that claimants may apply to reopen a workers’ compensation claim and request a referral for determining related PPD benefits after the time limits established by W. Va. Code § 23-4-16(a)(2) if four factors are met. To reopen a closed claim, the claimant must have (1) received an award of PPD for an initial workplace injury; (2) timely filed a reopening request under W. Va. Code § 23-4-16(a)(2) seeking additional, related injuries to the initial claim; (3) the additional injuries must be compensable, and (4) the Claim Administrator must fail to refer the claimant for a PPD evaluation in accordance to W.Va. Code § 23-4-7a(f). In adopting this new factor test, the Court recognized three rights afforded to claimants under the Workers’ Compensation Act; the right to the payment of benefits for workplace injuries, the right to appeal adverse decisions; and the right to be referred for a PPD evaluation.

In this case, both claimants were injured on the job, suffered from persistent pain stemming from the initial injury, and went through lengthy litigation to add new permanent partial disability benefits by reopening their initial claim. In reaching the ultimate decision to allow the untimely application for permanent partial disability referral, the Court reiterated that W. Va. § 23-4-7a(f) creates  an affirmative duty on a Claim Administrator to refer claimants for an examination to determine whether permanent partial disability exists if temporary total disability continues longer than one hundred twenty days from the date of injury or from the date of the last examination or evaluation. Here, the claimants were not afforded this right. Thus, the Court found it necessary to allow the untimely application to protect the rights recognized by the Legislature.  

Moore v. K-Mart Corp., 234 W.Va. 658, 769 S.E.2d 35 (2015). 

In a third signed opinion in the court’s January term, the court addressed a limited question whether an employee is entitled to reimbursement for medically necessary chelation therapy to treat heavy metal toxicity.  The Court found invalid the limitation to reimburse chelation therapy performed in an office as provided in W. Va. C.S.R. § 85-20-62.2 (2006). In a new syllabus point, the court ruled: “West Virginia Code of State Rules § 85–20–62.2 (2006), which provides, in part, that “[t]he Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will not reimburse for IV chelation therapy performed in office[,]” unreasonably denies reimbursement when such treatment is medically necessary, in contravention of the Workers' Compensation Act, West Virginia Code § 23–4–3 (2010), and it is therefore invalid.”

Article by Dill Battle with assistance from James C. Walls III.

 If you have questions or need more information, please call or e-mail Dill Battle at 304.340.3800 ordbattle@spilmanlaw.com

West Virginia Legislature May Put the "Deliberate" Back In Deliberate Intent Claims

by Alexander Macia, James S. Crockett, Jr., and David A. Bosak

January 23, 2015

House Bill 2011 was introduced in the West Virginia legislature by the new Republican majority on the first day of the legislative session. This same bill was introduced in the Senate as Senate Bill No. 11. The purpose of HB 2011/SB 11 is to impose narrower and more stringent requirements upon deliberate intent litigation, as well as overrule contrary case law from the West Virginia Supreme Court of Appeals.See McComas v. ACF Industries, LLC, Case No. 12-0548 (Oct. 17, 2013). TheMcComas case currently stands for the proposition that an employer may not use lack of actual knowledge as a defense to a deliberate intent action when the employer willfully ignores an unsafe working condition (or safety regulatory requirement) to prevent actual knowledge from occurring.
 
HB 2011/SB 11 narrows the scope of the regulatory bases for deliberate intent litigation by requiring that the statute, rule, regulation or standard be specifically applicable to the work and working condition involved and intended to address the specific hazards presented by the alleged specific unsafe working condition. To enforce this requirement, HB 2011/SB 11 also seeks to impose a requirement that a governmental agency confirm, in writing, the existence of all elements of deliberate intent pursuant to W. Va. Code § 23-4-2(ii).
           
HB 2011/SB 11 also seeks to eliminate from deliberate intent litigation the concept of “actual knowledge” being presumed via “constructive knowledge” imposed on the employer (as provided for in McComas), instead requiring that actual knowledge beproven by the employee. By strictly requiring the employee to prove actual knowledge, HB 2011/SB 11 intends to eliminate employers being targeted by deliberate intent litigation simply because there were relevant safety regulations in place.

Nevertheless, HB 2011/SB 11 will face significant opposition from various interest groups, most predominantly the West Virginia Association for Justice (“WVAJ”). The WVAJ emphasizes that HB 2011/SB 11 would eliminate an employee’s ability to force employers to disclose certain information that may support a deliberate intent action, because the governmental agencies that are required to find all elements of a deliberate intent action lack the subpoena power necessary to discover all relevant facts. Opponents to HB 2011/SB 11 also note that workers’ compensation in West Virginia is generally insufficient to compensate an employee for a lifetime of lost wages.
           
While both HB 2011 and SB 11 were referred only to the Judiciary Committees in their respective chambers, neither bill has been taken up as of yet. The West Virginia Legislature adjourns on March 14, 2015, and all bills must complete the process by midnight on that day. 

If you have any questions about this issue, or any other deliberate intent issue, please contact ourDeliberate Intent Practice Group.  For more information, please contact:

Alexander Macia

304.340.3835

amacia@spilmanlaw.com

and

James S. Crockett, Jr.

304.340.3824

jcrockett@spilmanlaw.com

and

David A. Bosak

304.720.4091

dbosak@spilmanlaw.com

- See more at: http://www.spilmanlaw.com/resources/attorney-authored-articles/other/west-virginia-employers-may-no-longer-be-sitting-d#sthash.uzdaPuCB.dpuf

Lawyers Representing Injured Workers in West Virginia Oppose Proposed Rule Changes

The work of the Workers’ Compensation Subcommittee of the West Virginia Supreme Court’s Access to Justice Commission resulted in a proposed change to Rule 1 (85 W. Va. CSR 1) dealing with claim administration practices by carriers and third party administrators.  The West Virginia Insurance Commissioner issued a proposed revision to Rule 1 regarding a claim administrator’s acknowledgment of counsel and providing access to claim file materials.  On September 4, there was a public hearing on the proposed rule at the scheduled Workers’ Compensation Industrial Council meeting.  The filed and proposed Rule 1 can be found at the Insurance Commissioner’s website.

http://www.wvinsurance.gov/PolicyLegislation/WorkersCompRules.aspx

Union and claimant representatives challenged the Rule because it would allow the carrier to charge for copies of the claim file making it more difficult for injured workers to get copies, and would allow carriers to send checks to claimants and not the lawyers that represent them. 

At the Public Hearing, the Insurance Commissioner’s proposed Rule 1 amendment was challenged.  Opposition was expressed to a portion of 19.2.a. related to acknowledgment of counsel, and it was expressed that one section should be removed allowing the carrier to reserve the right to make determinations about where to send checks.  The opposition expressed that proper receipt of indemnity checks by the claimant’s attorney can help claimants report to Social Security on indemnity payments and so that offsets can be properly administered. With respect to the proposed subdivision 19.2.b., there was opposition to the rule that places the burden of the cost of producing a copy of a claim file on injured workers and their attorneys.  The Access to Justice Workers’ Compensation Committee proposed a revision to Rule 1 where the claim administrator would provide the claim file at no cost.  Additional comments expressed no opposition to the language in the proposed amendment whereby the claim administrator can resist overly burdensome, repetitive or abusive claim file requests.

The next meeting of the Industrial Council is November 6, where it may make a determination on the proposed changes to Rule 1.           

Dill Battle

Spilman Thomas & Battle, PLLC

hdbattle@spilmanlaw.com