WEST VIRGINIA WORKERS’ COMPENSATION ADJUSTER TRAINING SEMINAR CHARLESTON TOWN CENTER MARRIOTT...

WEST VIRGINIA WORKERS’ COMPENSATIONADJUSTER TRAINING SEMINAR

CHARLESTON TOWN CENTER MARRIOTTCHARLESTON, WEST VIRGINIA

August 25, 2009

WELCOME!Jane L. Cline

WV Insurance Commissioner

WELCOME

MARY JANE PICKENSGeneral Counsel

West Virginia Offices of the Insurance Commissioner

OVERVIEW

WEST VIRGINIA WORKERS’ COMPENSATION LAW

2009 LEGISLATIVE CHANGES

OIC RULES PROJECTS

ISSUES IN CLAIMS ADJUSTING

COMPENSABILITY & BENEFITS

SETTLEMENT

WEST VIRGNIA’S WORKERS’ COMPENSATION LAW

WORKERS’ COMPENSATION STATUTE Chapter 23, West Virginia Code

WORKERS’ COMPENSATION REGULATIONS

Title 85, Code of State Rules:

Rule 1: Claims Management Rule 2: Claims Index Rule 5: Permanent Total Disability Rule 8: Policies and Coverage Issues Rule 15: Rehabilitation Rule 18: Self-Insurance Rule 20: Medical Management


SENATE BILL 537:

Amendments to Chapter 23 of the Code.

Effective Date was July 10, 2009.

In addition to numerous technical changes, the bill made a number of substantive changes to West Virginia’s Workers’ Compensation statute.


§23-2-1d. PRIME CONTRACTORS AND

SUBCONTRACTORS LIABILITY

Amendments to this section holds prime contractors liable for providing workers’ compensation benefits to an uninsured subcontractor’s employees if that prime contractor had failed to require the subcontractor to produce a certificate of coverage.


§23-2A-1. SUBROGATION; LIMITATIONS

This amendment clarifies some confusion about subrogation rights arising out of injured workers’ claims against third-party tortfeasors:

For any claim arising on or after January 1, 2006, a private carrier or self-insured employer is allowed statutory subrogation for both indemnity and medical benefits paid.



For any claim arising before January 1, 2006, the Insurance Commissioner or BrickStreet is allowed statutory subrogation for only medical benefits paid through the date of recovery and (resurrecting the pre-2003 rule), with respect to any recovery arising out of a cause of action accruing prior to July 1, 2003, the Insurance Commissioner’s or self-insured employer’s recovery may not exceed 50% of the amount received by the injured worker.



A new subsection was added giving the Insurance Commissioner the right to statutory subrogation for indemnity and medical benefits paid from the Uninsured Employers’ Fund regardless of the date on which the cause of action arose. The amendments also allow the Insurance Commissioner to negotiate the amount to accept as subrogation.


§23-2C-8. WORKERS’ COMPENSATION UNINSURED

EMPLOYERS’ FUND

The change to this section confers jurisdiction on the Office of Judges (“OOJ”) to hear protests on initial decisions to accept or reject a claim into the Uninsured Employers’ Fund (“UEF”) rather than the bifurcated process in which the Commissioner determined whether the claim belonged in the UEF and OOJ determined, often contemporaneously, other claims-related issues.


§23-2C-15. MANDATORY COVERAGE

This changes the date -- from June 30, 2012 to June 30, 2010 -- on which state and local governmental bodies are able to purchase workers’ compensation insurance from insurers other than BrickStreet. It also prohibits BrickStreet from cancelling or refusing to renew a policy of a state or local governmental body prior to July 1, 2011, except for failure of consideration to be paid by the policy holder or for refusal to comply with a premium audit.


§23-2C-17. ADMINISTRATION OF A COMPETITIVE SYSTEM

The amendment to subsection (c) clarifies that private carriers or self-insured employers may only enter into contracts with third party administrators that are licensed by OIC.


§23-2C-21. LIMITATION OF LIABILITY OF INSURER OR THIRD-PARTY ADMINISTRATOR;

ADMINISTRATIVE FINES ARE EXCLUSIVE REMEDIES

This clarifies that the Commissioner has the authority to use all of her regulatory authority in Chapters 23 and 33 with respect to administrative fines and remedies against workers’ compensation insurers.

The section, as amended, also allows for the recovery by a claimant of reasonable attorney fees for litigating the unreasonable denial of any TTD benefits; the statute previously limited this to cases of an initial denial of TTD benefits.


§23-4-1c. TTD BENEFITS

This change allows a claimant to request an expedited hearing for a failure to timely rule upon, or a denial of, any request for TTD benefits. This section previously provided for an expedited hearing only in cases of an initial denial of TTD benefits.


§23-4-6b. OCCUPATIONAL HEARING LOSS

This change makes allocation of hearing loss claims among chargeable employers permissive rather than mandatory, which is consistent with the rule on allocation among employers in occupational disease and occupational pneumoconiosis claims.


§23-4-8. PHYSICAL EXAMINATION OF

CLAIMANT Whenever a claimant is ordered to appear for examination by the Occupational Pneumoconiosis Board or ordered to attend an Independent Medical Examination, the claimant must be reimbursed for lost wages and reasonable traveling expenses; if the travel is for any other type of medical treatment, including visits to his or her authorized treating physician, the claimant is entitled to reimbursement for reasonable traveling expenses only.


§23-4-8. PHYSICAL EXAMINATION OF

CLAIMANT The new subsection (e) defines “reasonable traveling expenses” as including reimbursement for meals, lodging and mileage; reimbursement for travel in a personal motor vehicle will be at the mileage reimbursement rates contained in the Governor’s travel rules for state employees in effect at the time the treatment is authorized.


§23-4-8d. OCCUPATIONAL PNEUMOCONIOSIS CLAIMS NEVER CLOSED FOR MEDICAL BENEFITS

A new section now provides that a request for medical services, durable medical goods or other medical supplies in an occupational pneumoconiosis claim may be made at any time, clarifying that these claims never close for medical benefits.


§23-5-1. NOTICE BY COMMISSION OR SELF-INSURED EMPLOYER OF DECISION;

PROCEDURES ON CLAIMS; OBJECTIONS AND HEARING

Under prior law, a claims administrator had to pay conditional benefits if the only controversy relating to compensability was whether an application for benefits was properly filed as a new claim or a reopening of a previous. The amended language now requires conditional payments whenever the protest simply includes such a controversy.




Subsection (c) is renumbered to clarify that the OOJ has jurisdiction generally (and not only with respect to subsection (b)) to designate a new application as a reopening petition or vice versa or to reassign a claim from one insurer or self-insured employer to another whenever appropriate.




The statute now requires that a brochure be sent to the claimant only in claims for occupational pneumoconiosis and in claims where temporary total disability is claimed.


§23-5-16. FEES OF ATTORNEY FOR CLAIMANT; UNLAWFUL CHARGING OR

RECEIVING OF ATTORNEY FEES

A new subsection (b) now provides that in a final settlement, an attorney cannot charge a fee in excess of 20% of the total value of the medical and indemnity benefits. The amendment further limits the attorney’s fee by stating that the fee, when combined with any fees previously charged or received by the attorney for permanent partial disability or permanent total disability, may not exceed 20% of an award of benefits to be paid during a period of 208 weeks.


§33-2-22. AUTHORITY OF INSURANCE COMMISSIONER REGARDING EMPLOYERS IN

DEFAULT TO WORKERS’ COMPENSATION FUNDS; INJUNCTIONS AGAINST DEFAULTING EMPLOYERS

This amendment grants the Insurance Commissioner the authority to compromise and settle claims for monies due to the Old Fund or the Uninsured Employers’ Fund. Information regarding such settlements is subject to FOIA, and the Commissioner must file an annual report that describes the parties involved in each settlement, the total amount owed/paid, and the terms of the settlement.

OIC RULES PROJECTS

Regulation of TPAs.

Return to Work.

Utilization Review.

Professional Employer Organizations.


DAN MURDOCKAssociate Counsel



OVERVIEW DECISIONS COVERAGE ISSUES COMPENSABILITY ISSUES MEDICAL BENEFIT ISSUES PPD ISSUES MISCELLANEOUS ISSUES


DECISIONSWEST VIRGINIA CODE § 23-5-1 TELLS

US: When a written decision needs to be issued. What information the decision needs to

include. Who must be sent a copy of the decision. What decisions need to include information

regarding the claimant’s right to protest the decision to the Office of Judges.

Who can protest a decision?


DECISIONSWhen does a written decision need to be

issued?

“. . . . With regard to any issue which is ready for a decision, the Insurance

Commissioner, private carrier or self-insured employer, whichever is applicable, shall

promptly send the decision to all parties, including the basis of its decision. . . .”

~ W. Va. Code § 23-5-1(a)



issued? “. . . . Except with regard to interlocutory matters, upon

making any decision, upon making or refusing to make any award or upon making any modification or change with respect to former findings or orders, as provided by section sixteen, article four of this chapter [reopening], the

Insurance Commissioner, private carrier or self- insured employer, whichever is applicable, shall give notice, in

writing, to the parties to the claim of its action. The notice shall state the time allowed for filing a protest to the finding. .

. .”

~ W. Va. Code § 23-5-1(b)(1).



issued? Any action regarding the claimant’s

benefits in a claim. Denial of benefits (medical, rehabilitation,

indemnity). Granting of Benefits. Any decision regarding closing or

reopening of the claim for indemnity benefits.


DECISIONSWhat information does the decision need to

include?

“. . . . With regard to any issue which is ready for a decision, the Insurance

Commissioner, private carrier or self-insured employer, whichever is applicable, shall

promptly send the decision to all parties, including the basis of its decision. . . .”

~ W. Va. Code § 23-5-1(a)


DECISIONSWhat information does the decision

need to include?

The issue being decided. The decision made. The basis for the decision.


DECISIONSWho must be sent a copy of the

decision?“. . . . Except with regard to interlocutory matters, upon

making any decision, upon making or refusing to make any award or upon making any modification or change with

respect to former findings or orders, as provided by section sixteen, article four of this chapter [reopening], the Insurance

Commissioner, private carrier or self- insured employer, whichever is applicable, shall give notice, in writing, to the parties to the claim of its action. The notice shall state the

time allowed for filing a protest to the finding. . . .”

~ W. Va. Code § 23-5-1(b)(1)



decision? The parties.


DECISIONSWho are the parties?

“. . . . The parties to a claim are the claimant and, if applicable, the claimant's dependants, and the employer, and with respect to claims involving funds created in article two-c of this chapter for which

he or she has been designated the administrator, the Insurance

Commissioner. . . .”~ W. Va. Code § 23-5-1(b)(1)



decision? The parties.

Who are the parties? The employer. The claimant.

Who is NOT a party? The OIC The Workers’ Compensation Commission The Office of Judges Commissioner Jane Cline


DECISIONSWho might you want to send a copy of

the decision? If the parties are represented by

counsel, their attorneys. If the decision involves a request from

a provider, the provider.


DECISIONSWhat decisions need to include information regarding the claimant’s right to protest the decision to the Office of Judges?

“. . . . Except with regard to interlocutory matters, upon making any decision, upon making or refusing to make any

award or upon making any modification or change with respect to former findings or orders, as provided by section

sixteen, article four of this chapter [reopening], the Insurance Commissioner, private carrier or self- insured employer,

whichever is applicable, shall give notice, in writing, to the parties to the claim of its action. The notice shall state the

time allowed for filing a protest to the finding. . . .”

~ W. Va. Code § 23-5-1(b)(1)


DECISIONSWhat is an “interlocutory” decision?

American Heritage Dictionary:

“Pronounced or decided during the course of an action or suit and merely temporary or provisional in nature: an interlocutory decree.”

Merriam-Webster's Dictionary of Law:

“Not final or definitive (an interlocutory order); broadly : made or done during the progress of an action esp. when delay would cause irreversible injury (an interlocutory appeal).”


DECISIONSExamples of interlocutory decisions:

Request for additional information pending a determination of compensability.

Suspension of TTD benefits pending anticipated closure for TTD.

A decision withholding authorization pending the receipt of additional information.

A decision referring an issue to Utilization Review.


DECISIONSWhat information does the decision need

to include?

The issue being decided. The decision made. The basis for the decision. If the decision is not “interlocutory,” the

decision must state the time allowed for filing a protest to the finding, (so-called “language of protestability” or “protest language”).


DECISIONSExample of a poor protestability clause:

“You have 60 days in which to protest this decision.”

Example of a very good protestability clause:

“The claimant may protest this decision within 60 days from the date of this letter. The claimant must send a written protest, along with a copy of this decision, to the Office of Judges, P.O. Box 2233, Charleston, WV 25328-2233. A copy of everything sent must be sent to your employer, and should also be sent to [the TPA] at [TPA’s address].


DECISIONSWho can protest a decision?

“. . . . An employer may protest decisions incorporating findings made by the Occupational

Pneumoconiosis Board, decisions made by the Insurance Commissioner acting as administrator of claims involving funds created in article two-c of this chapter or decisions entered pursuant to subdivision (1), subsection (c), section seven-a,

article four of this chapter. . . .”

~ W. Va. Code § 23-5-1(b)(1)


DECISIONSWho can protest a decision?

The Claimant may protest any decision. The Employer may protest:

Decisions incorporating findings made by the Occupational Pneumoconiosis Board.

Decisions made by the Insurance Commissioner in Old Fund claims.

Decisions reflecting a PPD award entered as a result of a treating physician’s finding of impairment.


DECISIONSThe Employer’s protest:

“. . . . In claims in which the employer had coverage on the date of the

injury or last exposure, the employer's carrier has sole authority to act on the employer's behalf in all

aspects related to litigation of the claim. . . .”

~ W. Va. Code § 23-5-1(a)


DECISIONS

DISCUSSION


COVERAGE ISSUES

Was there coverage in effect on the date of injury or date of

last exposure?


COVERAGE ISSUESWest Virginia OIC Informational Letter

No. 161:

“When a claim for an occupational injury or occupational disease (“OD”) is filed with a

workers’ compensation carrier and the carrier determines that no coverage existed as a

result of there being no policy in effect on the date of injury (“DOI”) or last exposure

(“DLE”), the carrier is permitted to issue a letter to the claimant stating that there is no

coverage with the carrier for that claim.”


COVERAGE ISSUES Letter is not protestable; the carrier is

not accepting jurisdiction for the claim pursuant to W. Va. Code §23-5-1(a).

The carrier has a duty to make a reasonable investigation regarding the status of the employer to make sure no coverage existed with that carrier on the date of injury or last exposure.


COVERAGE ISSUES A declination letter for lack of coverage must always include the

following two statements:

(1) a statement that the claimant should contact his or her employer to verify who its private carrier is; and

(2) a statement that if the employer is unable to assist the claimant, he or she should contact the West Virginia Insurance Commissioner’s Consumer Services Division by calling 1-888-TRY-WVIC.


COVERAGE ISSUES The non-protestable coverage denial letter

may only be issued if there is no apparent factual dispute regarding the lack of an effective insurance policy on the DOI or DLE.

If the insurer determines that “coverage” is lacking based upon any other factual findings made by the insurer, the insurer must take jurisdiction for the claim and issue a protestable decision pursuant to W. Va. Code §23-5-1(b)(1).


COVERAGE ISSUESExamples of “other factual findings”: The carrier believes the injury did not occur

in the scope of employment; In an OD claim, the carrier believes that

there was no harmful exposure during the time when the employee was working for the carrier’s insured employer;

In an OD claim, the carrier believes there was not a sufficient number of days of exposure for the insured employer to be responsible for the OD; or . . .


COVERAGE ISSUES The carrier believes that the

claimant’s DOI or DLE was not on the date which the claimant has alleged, but instead a different date on which no policy was in effect.


PROBLEM: Company, Inc., has workers’ compensation coverage with

Alpha Insurance from July 1, 2009, through June 30, 2010.

Employee is diagnosed with a work-related occupational disease caused by exposure to a hazard on the job, on January 2, 2010. Employee continues to work for Company, Inc.

On July 1, 2010, Omega Insurance assumes responsibility for Company, Inc.’s workers’ compensation coverage, with policy effective dates from July 1, 2010, through June 30, 2011.

On May 15, 2011, Employee files a workers’ compensation claim with Omega Insurance, alleging a DLE of May 15, 2011.


COMPENSABILITY ISSUESREOPENING VS. NEW INJURY

“. . . . With respect to every application for benefits filed on or after July 1, 2008, in which a decision to deny

benefits is protested and the matter involves an issue as to whether the application was properly filed as a new

claim or a reopening of a previous claim, the party that denied the application shall begin to make conditional payment of benefits and must promptly give notice to the Office of Judges that another identifiable person

may be liable. . . .”

~ W. Va. Code § 23-5-1(b)(2)(A)



The claimant files either an application for benefits in a new claim or an application for reopening in an old claim.

The carrier rejects the claim or denies reopening.

The claimant protests the decision.

The Requirement that Conditional Benefits be Paid is Triggered.



The carrier must promptly give the Office of Judges notice that another identifiable “person” may be liable.

The Office of Judges shall promptly order the appropriate persons be joined as parties to the proceeding.

The Office of Judges may order another party to make conditional payments.


COMPENSABILITY ISSUESINVESTIGATION

“. . . . In matters arising under subsection (c), section eight, article two-c of this chapter, and under articles three and

four of this chapter, the Insurance Commissioner, private carriers and self-insured employers shall promptly review

and investigate all claims. . . .”~ W. Va. Code § 23-5-1


COMPENSABILITY ISSUESINVESTIGATION

W. Va. Code § 23-5-1 notably does not require the claimant to investigate the claim.

85 C.S.R. 1 § 10.1. allows fifteen working days to rule upon an application for benefits.

The responsible party may require the production of additional evidence; the 15 working day time period is tolled. 85 C.S.R. 1 § 10.1.


COMPENSABILITY ISSUESCONDITIONAL

ACCEPTANCE Under 23-4-1c, the claim may be

“conditionally accepted” while further investigation takes place.


MEDICAL BENEFIT ISSUES“SUSPENSION” or

“CLOSURE” A claim is never “closed” for medical

benefits. Never.


MEDICAL BENEFIT ISSUES W. Va. Code 23-4-16(a)(4):

“With the exception of the items set forth in subsection (d), section three of this article, in any claim in which medical or any type of rehabilitation service has not been rendered or durable medical goods or other supplies have not been

received for a period of five years, no request for additional medical or any type of rehabilitation benefits shall be

granted nor shall any medical or any type of rehabilitation benefits or any type of goods or supplies be paid for by the commission, successor to the commission, other private

carrier or self-insured employer, whichever is applicable, if they were provided without a prior request. For the

exclusive purposes of this subdivision, medical services and rehabilitation services shall not include any encounter

in which significant treatment was not performed.”


MEDICAL BENEFIT ISSUES What about an order “suspending”

medical benefits or an order requiring that all future requests for medical treatment receive prior authorization? The requirements for prior authorization are

determined by the applicable law and regulations.

Orders that effectuate a closure of a claim for medical treatment are not valid, even if they don’t purport to specifically “close” the claim for medical treatment.

MEDICAL BENEFITS IN OP CLAIMS

OP claims do not ever close for medical benefits.

Multiple OP claims – in which claim are medical benefits payable?


MEDICAL BENEFIT ISSUES

APPORTIONMENT FOR PRIOR SPINAL INJURY

An IME finds the claimant to have a 20% lumbar impairment under the AMA Guides 4th.

The IME finds that “half” of the claimant's impairment is due to a pre-existing condition (prior injury, congenital or degenerative condition).

The IME finds the claimant to fall into Lumbar Category II in Rule 20, which provides for a PPD range of 5% to 8%.

What award of PPD is the claimant entitled to?


PPD ISSUES

APPORTIONMENT FOR PRIOR SPINAL INJURY

Apportionment prior to the application of Rule 20: The 20% impairment is apportioned, with 10% found to

be compensable. The 10% is adjusted under Rule 20 to a PPD award of 8%.

Apportionment after the application of Rule 20: The 20% impairment is adjusted under Rule 20 to an

8% PPD award. The 8% is then apportioned by half for a 4% PPD award.


PPD ISSUES

CARPAL TUNNEL SYNDROME

PPD awards must be based upon a claimant’s whole person impairment.

Per Rule 20 (85 C.S.R. 20 § 65), impairment must be determined under the AMA Guides 4th.

The AMA Guides 4th provide for whole person impairment of 6% for “mild” CTS, 12% for “moderate” CTS, and 18% for “severe” CTS.

Rule 20 provides for “ranges of permanent partial disability awards.”

For CTS, Rule 20 allows for an award of “0%-6% in each affected hand.”


PPD ISSUES

OD APPORTIONMENT

Under the Code, only one entity has the power to apportion an occupational disease claim between chargeable employers: the OIC.

Allocation is discretionary to the OIC.


MISCELLANEOUS

GRIEVANCE PROCESSES Permitted under Managed Healthcare

Plans. Governed under 85 C.S.R. 21 § 10. A protestable decision is issued after the

completion of the grievance process, and the 60-day time for filing a protest with the OOJ is tolled during the grievance process.

The process should be made clear to the injured worker.


MISCELLANEOUS

EDI REPORTING AND THE JCN See 85 C.S.R. 2. Rule 2, EDI Implementation

Guide, and Trading Partner Profile Registration forms are available on OIC’s website.


MISCELLANEOUS

FUNERAL EXPENSES OIC Informational Letter No.

170. Increased from $5000 to $7000.


MISCELLANEOUS


DISCUSSION

WORKERS’ COMPENSATIONOFFICE OF JUDGES

HON. REBECCA A. ROUSHChief Administrative Law Judge

West Virginia Workers’ Compensation Office of Judges


AN OVERVIEW OF THE OFFICE OF JUDGES AND THE LITIGATION

PROCESS:

Introduction Organizational Overview Litigation Process Mediation Program


INTRODUCTION:

The traditional role of the OOJ is to process appeals from initial workers’ compensation claim management decisions.

The goal of the OOJ is to resolve these protests in a fair, efficient, and timely manner.


ORGANIZATIONAL OVERVIEW:

The OOJ has offices in Charleston, Fairmont and Beckley

The OOJ has 64 employees, including 19 administrative law judges.


ORGANIZATIONAL OVERVIEW:

The OOJ conducts evidentiary hearings in seven hearing venues throughout the state:

Charleston BeckleyFairmont ParkersburgWheeling ElkinsMartinsburg


LITIGATION PROCESS:

Litigation at the OOJ is governed by the OOJ’s two Procedural Rules:

93 C.S.R. 1: Litigation of Protests 93 C.S.R. 2: Time Standards


LITIGATION PROCESS:PROTESTS


LITIGATION PROCESS:Types of issues in litigation (as of August 1, 2009):

CompensabilityCompensability 788788Dependent’s BenefitsDependent’s Benefits 135135OP Non-medicalOP Non-medical 49 49OP Board OP Board 326326PPDPPD 1324 1324PTD PTD 115115RehabilitationRehabilitation 9 9ReopeningReopening 257257TTD (Initial & Closure)TTD (Initial & Closure) 368368TreatmentTreatment 719 719 Misc.Misc. 23 23

TotalTotal 41134113


Treatment

Compensability

Misc.

OP Non-Medical

OP Board

PPD

TTD Closure

ReopeningRehab

PTD

Dependents' Benefits Dependents'Benefits

OP Non-Medical

OP Board

PPD

PTD

Rehab

Reopening

TTD Closure

Treatment

Misc.

Compensability


LITIGATION PROCESS:

Upon Receipt of a Protest OOJ Reviews for Following:

Has the protesting party included Has the protesting party included a copy of the claim administrator’s a copy of the claim administrator’s order with the protest?order with the protest?

Have copies of the protest been Have copies of the protest been sent to appropriate parties and sent to appropriate parties and carrier?carrier?

Is the protest timely?Is the protest timely?


LITIGATION PROCESS:

Acknowledgement and Time Frame Acknowledgement and Time Frame

OrderOrder: If a protest meets all required If a protest meets all required criteria, an Acknowledgment criteria, an Acknowledgment and Automatic Time Frame and Automatic Time Frame Order (ATFO) is issued giving Order (ATFO) is issued giving the parties a concurrent or the parties a concurrent or consecutive time frame consecutive time frame depending on the issue type. depending on the issue type. See:See: 93 C.S.R. 2.93 C.S.R. 2.


LITIGATION PROCESS:

Important Litigation PointsImportant Litigation Points:

The protesting party must submit an The protesting party must submit an Argument or evidence in writing, or the Argument or evidence in writing, or the claims administrator’s decision will be claims administrator’s decision will be summarily affirmed pursuant to 93 CSR 1 § summarily affirmed pursuant to 93 CSR 1 § 10.2.10.2.

No hearings will be scheduled unless No hearings will be scheduled unless requested by a party in writing. Except:requested by a party in writing. Except:

o OP Board hearings on PPD Issue.OP Board hearings on PPD Issue.o Final PTD on Entitlement Issues.Final PTD on Entitlement Issues.


LITIGATION PROCESS:


All motions and objections must be All motions and objections must be in Writing and Submitted prior to the in Writing and Submitted prior to the expiration of the ATFO. Except: expiration of the ATFO. Except: Motions and Objections made during Motions and Objections made during a hearing.a hearing.

At the expiration of the time frame At the expiration of the time frame order, OOJ will review protest to order, OOJ will review protest to determine if it is ready for determine if it is ready for submission.submission.


LITIGATION PROCESS:


If there are no outstanding If there are no outstanding motions, the issue will be motions, the issue will be submitted for Final Decision.submitted for Final Decision.

o An Order Submitting the Protest An Order Submitting the Protest for Decision is entered.for Decision is entered.

o A list of the “Record to be A list of the “Record to be Considered” is attached.Considered” is attached.


LITIGATION PROCESS:


An EXCEPTION to this process is An EXCEPTION to this process is the Expedited Hearing process. the Expedited Hearing process. Pursuant to WV Code 23-4-1c(a)(3), Pursuant to WV Code 23-4-1c(a)(3), Expedited Hearings are Available for Expedited Hearings are Available for the Following Protest Types: the Following Protest Types:

o A denied claim application.A denied claim application.o A denied treatment request.A denied treatment request.o A denial of TTD benefits.A denial of TTD benefits.


LITIGATION PROCESS:

Important Litigation PointsImportant Litigation Points: Decisions on issues presented for Decisions on issues presented for decision under the Expedited Hearing decision under the Expedited Hearing process are entered within 30 days of process are entered within 30 days of HearingHearing The Expedited Hearing process is The Expedited Hearing process is an “opt-in” process; no expedited an “opt-in” process; no expedited hearing will be scheduled unless the hearing will be scheduled unless the claimant requests an expedited claimant requests an expedited hearing within fifteen days of the hearing within fifteen days of the entry of the ATFO in the protest.entry of the ATFO in the protest.


LITIGATION PROCESS:


Final Decision of Final Decision of Administrative Law Judge:Administrative Law Judge:

o Findings of Fact.Findings of Fact.

o Conclusions of Law.Conclusions of Law.


LITIGATION PROCESS:


Other types of issues reviewed by Other types of issues reviewed by the OOJ:the OOJ:

o Failure to Timely Act.Failure to Timely Act.o Award of Attorney Fees for Award of Attorney Fees for Unreasonable Denial of Benefits by the Unreasonable Denial of Benefits by the Insurance Carrier.Insurance Carrier.o Workers’ Compensation Default List.Workers’ Compensation Default List.o Third Party Claims Arising under the Third Party Claims Arising under the Unfair Trade Practices Act.Unfair Trade Practices Act.o W. Va. Healthcare Authority.W. Va. Healthcare Authority.


LITIGATION PROCESS:


Employers must be Employers must be represented in litigation by an represented in litigation by an attorney licensed to practice law attorney licensed to practice law in the State of West Virginia.in the State of West Virginia.


LITIGATION PROCESS:

Structure of Appellate SystemStructure of Appellate System:

Final Decision of Administrative Law Final Decision of Administrative Law Judge may be appealed to the Workers’ Judge may be appealed to the Workers’ Compensation Board of Review as a matter of Compensation Board of Review as a matter of right. Appeals are considered on the record right. Appeals are considered on the record created at the OOJ, and additional evidence created at the OOJ, and additional evidence may not be submitted.may not be submitted.

Any party may petition the West Virginia Any party may petition the West Virginia Supreme Court of Appeals for appeal from Supreme Court of Appeals for appeal from any Decision of the Board of Review; appeals any Decision of the Board of Review; appeals are accepted at the discretion of the Court.are accepted at the discretion of the Court.


MEDIATION PROGRAM:

Mediation is a form of alternative Mediation is a form of alternative dispute resolution in which an impartial dispute resolution in which an impartial third party uses a structured process to third party uses a structured process to assist the disputing parties in mutually assist the disputing parties in mutually generating their own solution for resolving generating their own solution for resolving their dispute.their dispute.

Unlike an arbitrator, a mediator does Unlike an arbitrator, a mediator does not have the power to impose a solution on not have the power to impose a solution on the parties.the parties.


MEDIATION PROGRAM:

Chapter 23 Requires OOJ Mediation Chapter 23 Requires OOJ Mediation Program.Program.

Increased Interest in Mediation Increased Interest in Mediation following Privatization.following Privatization.

All OOJ Administrative Law Judges are All OOJ Administrative Law Judges are trained mediators through the West trained mediators through the West Virginia State Bar.Virginia State Bar.


MEDIATION PROGRAM:

Benefits of MediationBenefits of Mediation:

Economical decisions.Economical decisions. Rapid resolution.Rapid resolution. Mutually satisfactory Mutually satisfactory outcomes.outcomes. Greater degree of control and Greater degree of control and predictability of outcome.predictability of outcome. Personal empowerment.Personal empowerment. Decisions that hold up over Decisions that hold up over time.time.


MEDIATION PROGRAM:

Parties may request mediation services Parties may request mediation services from the OOJ at any time.from the OOJ at any time.

The OOJ also has the authority to select The OOJ also has the authority to select cases for mandatory mediation.cases for mandatory mediation.


CONTACT INFORMATION:

Office of JudgesOffice of JudgesOne Players Club DriveOne Players Club DrivePost Office Box 2233Post Office Box 2233

Charleston, West Virginia 25328Charleston, West Virginia 25328

304-558-1686304-558-1686

[email protected]@wvinsurance.gov

WORKERS’ COMPENSATIONBOARD OF REVIEW

HON. JAMES D. GRAYChairman

West Virginia Workers’ Compensation Board of Review


RICHARD M. CRYNOCKAssociate Counsel

BRANDOLYN FELTONAssociate Counsel


There are two types of “personal injuries”:

Occupational Injuries.

Occupational Diseases.

COMPENSABILITY

In order for an injury to be compensable in a West Virginia workers’ compensation case, three elements must coexist: (1) a personal injury; (2) received in the course of employment; and (3) resulting from the employment. W. Va. Code § 23-4-1(a).

“Personal injury” includes Occupational Pneumoconiosis (OP) and Occupational Disease (OD) claims. W. Va. Code § 23-4-1(b).

“In the course of” relates to the time, place, and circumstances of the injury.

“Resulting from” relates to the origin of the injury.

COMPENSABILITY

Whether the injury occurred so as to be compensable depends upon the particular facts in each case, and may not be resolved by any fixed rule or formula.

In determining whether an injury resulted from claimant’s employment, a causal connection between the injury and the employment must be shown to have existed.

COMPENSABILITY

Occupational Injuries are personal injuries caused by:

“[A]n isolated fortuitous event received by an employee in the course of and resulting from his employment with his employer.”

Dickerson v. State Workmen’s Comp. Comm’r, 173 S.E.2d 388, 391 (W. Va. 1970).

An occupational injury may result in disability to more than one part of the body, but is only one injury.

Id.

Mere negligence or carelessness of the employee, causing his or her injury, does not preclude compensation.

Archibald v. Ott, 87 S.E. 791 (W. Va. 1916).

COMPENSABILITY

However:“An employee who is injured gradually by reason of the duties of employment, and eventually becomes disabled, is no less the recipient of a personal injury than one who suffers a single disabling trauma.”

Lilly v. State Workmen’s Comp. Comm;r, 225 S.E.2d 214 (W. Va. 1976).

COMPENSABILITY

Occupational Diseases are defined by statute:

For the purposes of West Virginia law, occupational disease means a disease incurred in the course of and resulting from employment. No ordinary disease of life to which the general public is exposed outside of the employment is compensable except when it follows as an incident of occupational disease. Except in the case of occupational pneumoconiosis, a disease shall be considered to have been incurred in the course of or to have resulted from the employment only if it is apparent to the rational mind, upon consideration of all the circumstances:

COMPENSABILITY

(1) That there is a direct causal connection between the conditions under which work is

performed and the occupational disease;

(2) That it can be seen to have followed as a natural incident of the work as a result of

the exposure occasioned by the nature of the employment;

(3) That it can be fairly traced to the employment as the proximate cause;

(4) That it does not come from a hazard to which workmen would have been equallyExposed outside of the employment;

(5) That it is incidental to the character of the business and not independent of the relation of employer and employee; and

(6) That it appears to have had its origin in a risk connected with the employment and

to have flowed from that source as a natural consequence, though it need not have been foreseen or expected before its contraction.

W. Va. Code 23-4-1(f)

COMPENSABILITY

ISSUES OF FACT – Occupational Disease

A claimant is not required to prove that the conditions of his or her employment were the exclusive or sole cause of the disease nor must the claimant show that the disease is peculiar to one industry, work environment, or occupation.

COMPENSABILITY

TIMELINESS

Claims must be filed within the time periods set forth at West Virginia Code § 23-4-15 or the claim is “forever barred.”

Occupational Injury:For occupational injury claims (i.e., all claims for compensation that are not occupational disease or occupational pneumoconiosis claims), the application for compensation must be filed with the private carrier within six (6) months from the date of injury.

Occupational Disease:For occupational disease claims other than occupational pneumoconiosis claims, the application for compensation must be filed with the private carrier within three (3) years from the latter of either:

1) the date of last exposure to the occupational hazard causing the disease; or

2) the date upon which the claimant knew (by being informed by a physician), or reasonably should have known, of the existence of the occupational disease.

COMPENSABILITY

ISSUES OF FACT – STANDARDS OF PROOF

The resolution of any issue shall be based on a weighing of the evidence pertaining to the issue and a finding that a preponderance of the evidence supports either the claimant or the employer.

A preponderance of the evidence means that there is more evidentiary weight existing favoring one side's position.

Weighing of evidence shall include an assessment of: Relevance Credibility, materiality and reliability of evidence in the context of

the issue presented.

If an equal amount of evidentiary weight exists, the resolution that is most consistent with the claimant's position will be adopted.

W. Va. Code § 23-4-1g

COMPENSABILITY

ISSUES OF FACT – BURDEN OF PROOF

The claimant has the burden of establishing by positive evidence, or by evidence from which the inference can fairly and reasonably be drawn, that he or she sustained the injury. An award of benefits can not be made unless the claim is supported by satisfactory proof.

Emmel v. State Comp. Dir., 145 S.E.2d 29 (W. Va. 1965)

The claimant is not required to establish the claim by clear and unequivocal proof, but is only required to establish it by evidence sufficient to make a reasonable person conclude that he or she was injured while performing his or her duties in the course of employment.

Eady v. State Comp. Comm’r, 132 S.E.2d 642 (W. Va. 1963)

The claimant is given the benefit of all reasonable inferences the record will admit favorable to him or her. It is not necessary that the claimant prove to the exclusion of all else the causal connection between the injury and the employment.

Myers v. State Workmen’s Comp. Comm’r, 239 S.E.2d 124 (W. Va. 1977)

COMPENSABILITY

ISSUES OF FACT – BURDEN OF PROOF (cont’d)

Medical evidence is not always required to establish the compensability of an injury.

Pennington v. State Workmen’s Comp. Comm’r, 222 S.E.2d 579 (W. Va. 1976)

Neither is an eyewitness to the event which is alleged to have caused the injury an indispensable prerequisite.

Ramey v. State Comp. Comm’r, 146 S.E. 2d 579 (W. Va. 1966)

These principles, however, do not relieve the claimant of the burden of establishing his or her claim, and the claim must be established by proper and satisfactory proof.

Bilchak v. State Workmen’s Comp. Comm’r, 168 S.E. 2d 723 (W. Va. 1969)

COMPENSABILITY

85-1-10 TIME STANDARDS

85-1-10.1: Injury and OD claims. For all claims (other than OP), the claim shall be ruled

upon within 15 working days of date of receipt of all required information.

If the claim has not been adequately documented, then the party may require the production of additional evidence.

The 15 day period is tolled during the evidence gathering process.

85-1-10.2: OP claims. Non-medical rulings shall be entered within 15 working

days of date of receipt of all required information. If the claim has not been adequately documented, then the

party may require the production of additional evidence. The 15 day period is tolled during the evidence gathering

process.

85-1-10.3: Medical claims.

Requests for authorization for medical treatment, prosthetic or other appliances, devices or medical supplies shall be acted upon within 15 working days of date of receipt.

85-1-10 TIME STANDARDS

W. Va. Code §23-4-1(a) directs that workers’ compensation benefits shall be provided to those employees who have received personal injuries in the course of and as a result of their covered employment.

W. Va. Code §23-4-3(a)(1) provides that all private carriers shall disburse and pay for personal injuries to the employees who are entitled to the following benefits: sums for health care services, rehabilitation services, durable medical and other goods, and other supplies and medically related items as may be reasonably required.

MEDICAL BENEFITS

Pursuant to W. Va. Code §23-4-16(a)(4), any claim wherein significant medical or any type of rehabilitation service has not been rendered for a period of five (5) years, then no payment or request for additional medical benefits shall be granted. Please note that this statutory section does not apply to occupational pneumoconiosis claims.

The statute does not provide a definition for significant treatment. Significant treatment is more than an office visit, unless such office visit is required because a medication is being monitored.

MEDICAL BENEFITS

MEDICAL BENEFITS

W. Va. Code §23-4-3(d) provides that private carriers shall replace artificial limbs, crutches, hearing aids, eyeglasses, and all other mechanical appliances provided in accordance with this section which later wear out, or which later need to be refitted because of the progression of the injury which caused the same to be originally furnished, or which are broken in the course of and as a result of the employee’s employment.

Temporary total disability (TTD) benefits are granted during the healing and recovery period after a compensable injury.

TEMPORARY TOTAL DISABILITY

TTD benefits are paid for a maximum period not to exceed 104 weeks. W. Va. Code § 23-4-6(c).

Prospective TTD benefits are to be paid up to 90 days at a time. §23-4-1c(c).

Pursuant to W. Va. Code § 23-4-7a(f), referral of a claimant for an independent medical examination is contemplated if TTD lasts longer than 120 days from the date of injury or date of last examination.


TTD is not granted if period of disability is three (3) days or less.

If more than three (3) but less than seven (7) consecutive days, TTD benefits cannot be granted for the first three (3) days.

If the period of disability is greater than seven (7) days in a row, TTD benefits will be granted for all days missed.


Maximum weekly TTD benefits are, pursuant to W. Va. Code § 23-4-6(b), computed on the basis of 66 and 2/3% of the average weekly wage earnings, wherever earned, of the injured employee, at the date of injury, not to exceed 100% of the average weekly wage in West Virginia.

Minimum weekly TTD benefits shall not be less than 33 and 1/3% of the average weekly wage in WV. However, the minimum can’t exceed the level of benefits determined by the federal minimum hourly wage.


Pursuant to W. Va. Code § 23-4-14(b)(2), average weekly wage earnings, wherever earned, of the injured employee, at the date of injury, is computed on the daily rate of pay at the time of the injury or upon the weekly average derived from the best quarter of wages out of the preceding 4 quarters of wages.

W. Va. Code § 23-4-14(c) defines the expression “average weekly wage in WV” as the average weekly wage in WV as determined by the Bureau of Employment Programs.


Pursuant to W.Va. Code §23-4-7a(c)(2), if the treating physician examines the claimant before the claim is closed and recommends a PPD award of 15% or less, the adjuster must grant the award.

The statute does not require a suspension of TTD benefits in these cases.

However, the claimant’s entitlement to TTD benefits cease upon entry of the PPD award.


TEMPORARY TOTAL DISABILITY W. Va. Code § 23-4-7a(e) sets forth the criteria necessary

to suspend the payment of TTD benefits. Benefits are suspended for any of the following reasons: When the carrier’s physician concludes the claimant has

reached maximum degree of medical improvement (MDMI).

The authorized treating physician concludes the claimant has reached MDMI.

Other evidence establishes the claimant has reached MDMI.

When other evidence submitted or otherwise obtained justifies a finding that the claimant has engaged or is engaging in abuse, including, but not limited to, physical activities inconsistent with the claimant’s compensable injury.

Under no circumstances shall a claimant be entitled to receive TTD benefits either beyond the date the claimant is released to return to work or beyond the date the claimant actually returns to work.

Pursuant to W.Va. Code §23-4-7a(c)(2), if the treating physician recommends a PPD award greater than 15% or recommends a PTD award, the claimant must be referred to a physician of the carrier’s choice.

The claim manager must cease payment of TTD benefits. The statute does not require a suspension of TTD benefits in these cases.

If the claimant has not returned to work, the claimant is entitled to non-awarded partial (NAP) benefits. The NAP benefits will continue until entry of a PPD award or the claimant returns to work.

PERMANENT PARTIAL DISABILITY

Pursuant to the provisions of W. Va. Code § 23-4-7a(c)(2), unless a claimant has returned to work, he or she is eligible to receive non-awarded partial (NAP) disability benefits until the entry of a permanent partial disability award or until the claimant returns to work.

W. Va. Code § 23-4-7a(e)(4) also directs that unless a claimant has returned to work, he or she is eligible to receive NAP benefits until the entry of a permanent partial disability award or until the claimant returns to work.

NAP disability benefits will only be payable if the weight of the evidence indicates that a permanent impairment exists.

NAP disability benefits shall not be payable in a claim that has been re-opened for temporary total disability benefits if a permanent partial disability award was previously made in the claim.

NON-AWARDED PARTIAL (“NAP”) DISABILITY

BENEFITS

NAP disability benefits paid prior to entry of the permanent disability award are to be deducted from the permanent partial disability award when it is granted.

If the NAP disability benefits exceed the amount of the award, the injured worker will not be entitled to any further benefits from the award.

The excess is considered to be an overpayment and shall be collected from any future disability award in the same or any future claim.

The carrier may cease payment of non-awarded partial disability benefits if they conclude that the amount of NAP disability benefits paid will likely exceed the expected partial disability award.

As soon as practicable thereafter, the carrier must enter a permanent partial disability award based on the most current information available and the guidelines set forth in 85 C.S.R. § 20.


BENEFITS


BENEFITS If Rehabilitation Benefits are being paid, NAP

disability benefits shall cease until the rehabilitation process is complete.

NAP disability benefits shall be immediately suspended if the injured worker fails, without good cause, to present for an examination or rating.

If suspended with good cause, benefits can be reinstated, without back pay, once the injured worker presents for the examination or rating.

Rate is the same as the permanent partial disability rate.

Permanent Partial Disability (PPD) benefits are granted only after the claimant has reached maximum degree of medical improvement. W. Va. Code § 23-4-7a.

PPD awards are based upon whole body medical impairment.

W. Va. Code § 23-4-6(f) sets forth statutory impairments for certain amputation injuries as wells as total loss of sight in one eye or hearing in one ear. Pursuant to W. Va. Code § 23-4-6(m), the loss of both hands, both feet, one hand and one foot, or total loss of sight is considered to be a “total disability.”


Preexisting impairments and an aggravation thereof shall not be taken into consideration in determining the amount of PPD due to the compensable injury. W. Va. Code § 23-4-9b.

PPD compensation shall be awarded only in the amount that would have been allowable had the claimant not had the preexisting impairment. W. Va. Code § 23-4-9b.

Nothing requires that the degree of the preexisting impairment be ascertained or rated prior to the compensable injury. W. Va. Code § 23-4-9b.



PPD awards are to be computed on the basis of 4 weeks compensation for each percentage of disability. W. Va. Code § 23-4-6(e)(1).

Maximum PPD benefits are paid at 66 and 2/3% of the average weekly wage earnings, wherever earned, of the injured employee at the date of injury, not to exceed 70% of the average weekly wage in WV.

Minimum weekly PPD benefits are the same as minimum weekly TTD benefits.

A private carrier has continuing authority to monitor workers’ compensation claims and make such modifications or changes to benefits granted in claims (with respect to former findings or orders) as may be justified. W. Va. Code § 23-4-16.

A private carrier has the authority to review a claimant’s petition to reopen a claim for additional benefits filed pursuant to W. Va. Code § 23-5-2.

REOPENING - TTD

The claim may be reopened for a consideration of rehabilitation benefits and indemnity benefits if the claimant establishes that he or she is entitled to have the claim reopened.

To have a claim reopened, a claimant must establish with the petition to reopen that he or she has suffered a progression or aggravation of his or her condition, or must state in the petition some fact not previously considered which would entitle the claimant to greater or additional benefits. W. Va. Code § 23-5-3.

REOPENING - TTD

The claimant must establish a progression, aggravation or new fact with “prima facie” evidence. The West Virginia Supreme Court has held that “prima facie” evidence is any evidence which tends to justify, but not compel, an inference that there has been a progression or aggravation of the original injury.

The claimant must establish a progression, aggravation or new fact with “prima facie” evidence. The West Virginia Supreme Court has held that “prima facie” evidence is any evidence which tends to justify, but not compel, an inference that there has been a progression or aggravation of the original injury.

REOPENING - TTD

W. Va. Code §23-4-16(a)(1) provides that in any claim which was closed without the entry of an order regarding the degree of permanent disability that a claimant has suffered, or in any case where no award has been made, any request to reopen must be made within five (5) years from the date of closure.

In addition, in any claim in which a permanent partial disability award is made, W. Va. Code §23-4-16(a)(2) provides that the reopening request must be filed within five (5) years of the initial permanent partial disability award.

REOPENING - TTD

The claimant is not limited in the number of times he or she may petition for a reopening for TTD benefits; see: West Virginia OIC Informational Letter No. 164.

In those cases in which you have an occupational disease which is progressive in nature (such as occupational pneumoconiosis), then a new five year period begins upon the date of the subsequent permanent partial disability award.

REOPENING - TTD

REOPENING - TTD

A private carrier is required to rule upon a reopening petition for temporary total disability benefits within thirty (30) days of receipt of the petition. W. Va. Code §23-4-16(b).

The private carrier, after due notice to the employer, reviews the record and issues a protestable decision, either denying or granting the reopening of the claim.

If the claim is reopened, temporary total disability benefits should be paid immediately.

REOPENING - PPD

Reopening of PPD benefits is to occur if the following are satisfied: If a permanent disability award has not been previously

entered, the receipt of the request for reopening must be within 5 years from the date of the order closing the claim. Only 2 requests may be filed during this time period. W. Va. Code § 23-4-16(a)(1).

If a permanent disability award has been previously entered, the receipt of the request for reopening must be within 5 years from the date of the initial permanent disability award. Only 2 requests may be filed during this time period. W. Va. Code § 23-4-16(a)(2).

An exception to the above concerns OP and OD (any of which are progressive in nature) claims. The time period for receipt of the reopening request must be within 5 years from the date of the subsequent award. W. Va. Code § 23-4-16(a)(2).

A ruling on the claimant’s request for reopening shall be made within 30 days of the receipt of such. W. Va. Code § 23-4-16(b).

Goal is to return an injured worker to employment which is comparable, in both work and pay, to his or her pre-injury work.

If return to comparable work is not possible, the goal is to return the employee to alternative suitable employment, using all possible alternatives of job modification, restructuring, reassignment, and training, so that the claimant will return to productivity with his or her employer or, if necessary, with another employer.

REHABILITATION BENEFITS

Both physical and vocational rehabilitation can be authorized.

As such, rehabilitation services include vocational or on-the job training, counseling, and providing crutches, artificial limbs or medicines.


The total expenditure for vocational rehabilitation cannot exceed $20,000 for any one injured employee.

Temporary Total Disability (TTD), Temporary Partial Rehabilitation (TPR), and physical rehabilitation services are not to be included in the $20,000 dollar limitation.


The payment for physical rehabilitation, including the purchase of prosthetic devices, and other equipment and training in use of the devices and equipment, are considered expenses within the meaning of W. Va. Code § 23-4-3.


Pursuant to W. Va. Code § 23-4-9(b), in every case where an employee has sustained a permanent disability or has sustained an injury likely to result in temporary disability, the private carrier or self-insured employer shall, at the earliest possible time, determine whether the employee would be assisted in returning to remunerative employment with the assistance of rehabilitation services.


CSR §85-15-5.2. directs that a self-insured employer or private carrier may authorize a rehabilitation evaluation by a qualified rehabilitation professional to determine whether physical and/or vocational rehabilitation services are appropriate for an injured worker.


Ultimately, a rehabilitation plan may be developed and implemented.

CSR §85-15-5.3.c. notes that the purpose of a rehabilitation plan is to clearly identify the return-to-work objectives and to describe action steps to assist the injured worker in returning to suitable gainful employment.


Throughout the rehabilitation process, there are a number of priorities that must be followed.

No higher-numbered priority may be utilized unless the self-insured employer or private carrier, has determined that all lower number priorities are unlikely to result in placement of the injured worker into suitable gainful employment.


If a lower-numbered priority is clearly inappropriate for the injured worker, the next higher-number priority must be considered.

The rehabilitation plan must explicitly state the reasons and rationale for the rejection of any lower-numbered priority.


Pursuant to CSR §85-15-4.1., the priorities are: Return to the same employer and

pre-injury job. Return to the same employer and

pre-injury job with modification. Return to the same employer in a

different position.


Return to the same employer in a different position with on-the-job-training.

Employment by a new employer without retraining.

Employment by a new employer with on-the-job-training.


Return to work following enrollment of the injured worker in a retraining program which consists of a goal-oriented period of formal retraining designed to lead to suitable gainful employment in the labor market.



TTD benefits can be received during rehabilitation.

TPR benefits are available if the injured worker returns to work as part of a rehabilitation plan, but at a lower weekly wage. The worker will receive benefits calculated at

70% of the difference between the earnings at the time of the injury and the earnings received as a result of new employment.

Injured worker cannot receive both TTD benefits and TPR benefits for the same time period.

Injured worker is entitled to 52 weeks of TTD rehabilitation benefits and 52 weeks of TPR benefits.

If payment of TTD benefits is in conjunction with a vocational rehabilitation plan, the injured worker may receive an additional 52 weeks of TTD benefits.


In order for a claimant to be considered for a Permanent Total Disability (PTD) award, he or she must not be time-barred, and must meet or exceed the eligibility threshold and the whole person impairment (WPI) threshold.

PERMANENT TOTAL DISABILITY

Reopening of PTD benefits is to occur if the following are satisfied:• If a permanent disability award has not been previously

entered, the receipt of the request for reopening must be within 5 years from the date of the order closing the claim. Only 2 requests may be filed during this time period. W. Va. Code § 23-4-16(a)(1).

• If a permanent disability award has been previously entered, the receipt of the request for reopening must be within 5 years from the date of the initial permanent disability award. Only 2 requests may be filed during this time period. W. Va. Code § 23-4-16(a)(2).

• An exception to the above concerns OP and OD (any of which are progressive in nature) claims. The time period for receipt of the reopening request must be within 5 years from the date of the subsequent award. W. Va. Code § 23-4-16(a)(2).

A ruling on the claimant’s request for reopening shall be made within 30 days of the receipt of such. W. Va. Code § 23-4-16(b).


In order for the claimant to meet or exceed the eligibility threshold, the claimant must meet one of the following three requirements:• Have been awarded 50% or more in PPD prior

to the date of his PTD application.• Have sustained a single occupational injury or

disease which results in a finding by the Commission of a medical impairment of 50% or more.

• Have sustained a 35% statutory disability pursuant to W. Va. Code § 23-4-6(f).


If it is determined that a Claimant meets the Eligibility Threshold, the next issue to determine is whether or not the Claimant meets the Whole Body Medical Impairment Threshold.

In order for a Claimant to be considered for a PTD award, he or she must be reevaluated by the PTD Reviewing Board or other reviewing body and found to have at least 50% in whole body medical impairment (or a 35% statutory award). This is called the whole body medical impairment threshold. W. Va. Code § 23-4-6(n)(1).


To determine whether or not the Claimant satisfies the Whole Body Medical Impairment Threshold, the Claims Administrator must refer the claim to the PTD Reviewing Board or other reviewing body to reevaluate the Claimant’s whole person impairment.

The Claims Administrator should conduct such examinations of the Claimant that he or she thinks is necessary and obtain all pertinent medical reports and examinations and forward them to the PTD Reviewing Board or other reviewing body for consideration. W. Va. Code § 23-4-6(j)(1).


The PTD Reviewing Board or other reviewing body will reevaluate the Claimant’s whole body medical impairment to determine whether the Claimant has suffered a whole body medical impairment of 50% or more. W. Va. Code § 23-4-6(n)(1).

In order for the Claimant to meet the whole body medical impairment threshold, the PTD Reviewing Board or other reviewing body must find that the Claimant has at least 50% in whole person impairment from all his compensable injuries/diseases (or a 35% statutory award).


What is the PTD Review Board? Prior to privatization of the workers’ compensation

system, the Workers’ Compensation Commission assembled the Interdisciplinary Examining Board (IEB) to review PTD applications and issue written recommendations as to whether a Claimant should be granted a PTD award. The Board was comprised of five experts; three medical experts and two vocational experts.

The Board’s medical experts reevaluate the Claimant’s medical impairment to determine whether or not the Claimant has the requisite 50% in whole body medical impairment necessary for further consideration of a PTD award. If the medical experts determine that the Claimant does in fact have 50% or more in whole person impairment, then the Board’s vocational experts will determine whether or not the Claimant is capable of returning to work.


The OIC, private carriers, and self-insured employers may form their own reviewing bodies to conduct reviews of permanent total disability applications. W. Va. Code § 23-4-6(j).

The OIC has a Permanent Total Disability Review Board (“PTDRB”) which can be utilized by insurance carriers in the private workers’ compensation market for a fee.

The OIC PTDRB is made up of three physicians with specialty and expertise in evaluating medical impairment, and two vocational rehabilitation specialists who are qualified to evaluate the ability of a claimant to perform gainful employment with or without retraining.


After meeting all necessary thresholds, the claimant can be granted a PTD award if the compensable disability renders the claimant unable to engage in substantial gainful activity requiring skills or abilities which can be acquired or which are comparable to those of any gainful activity in which the claimant has previously engaged with some regularity and over a substantial period of time. W. Va. Code § 23-4-6(n)(2).


Comparability of pre-injury income to post-disability income will not be a factor in determining permanent total disability.

Geographic availability of gainful employment within a driving distance of 75 miles from the residence of the employee or within the distance from the residence of the employee to his or her pre-injury employment, whichever is greater, will be a factor in determining permanent total disability.


PERMANENT TOTAL DISABILITY If benefits are granted, the date of

onset of the PTD benefits is the date when a properly completed and supported application for PTD benefits was filed.

Maximum and minimum PTD benefits are the same as TTD benefits.

All PTD awards granted on or after July 1, 2003, terminate when the claimant reaches 70 years of age.

SETTLEMENT

BRANDOLYN N. FELTONAssociate Counsel


An injured worker has the ability to settle their workers’ compensation claim even if the claim is not being contested. They also have the right to settle their claim even if there is a dispute pending before the Workers’ Compensation Office of Judges, Board of Review, or WV Supreme Court of Appeals.

Examples of issues that can be settled include entitlement to temporary total disability (TTD) benefits, permanent partial disability (PPD) benefits, permanent total disability (PTD) benefits, vocational rehabilitation benefits, and medical benefits.

Pursuant to statute, medical benefits in non-orthopedic claims cannot be settled.

SETTLEMENT

SETTLEMENT

Current Law: 85 CSR 12, “Compromise & Settlement of

Workers’ Compensation Issues,” became effective on July 19, 2006.

CSR §85-12-3.10., defined the term “an employer not active in a claim” as all employers, other than those employers that have been granted self-insured status pursuant to W. Va. Code §23-2-9.

Pursuant to CSR §85-12-4., the claimant and the Insurance Commissioner, other private insurance carriers or self-insured employer, whichever is applicable, may negotiate a settlement of any and all issues in a claim or claims, except for medical benefits for non-orthopedic OD claims.

Current Law (cont’d): An insured employer is permitted to participate in the

settlement of a claim only to the extent that the employer is permitted to do so under the terms of the applicable workers’ compensation insurance policy.

CSR §85-12-5., directs that if a claim is in the review or appellate process, all claim issues, except for medical benefits for non-orthopedic OD claims, may be settled, even though the issues may not be currently contested.

Finally, CSR §85-12-14.1., provides that in accordance with W. Va. Code §23-5-7, the Insurance Commissioner may review any workers’ compensation settlement entered into between an unrepresented claimant and the Insurance Commissioner, private insurance carriers, or self-insured employer, and may declare such settlement void if the Insurance Commissioner determines the settlement to be unconscionable.

SETTLEMENT

Pursuant to statute, each settlement agreement must provide the toll-free number of the West Virginia State Bar Association.

The injured worker has five (5) business days to revoke an executed settlement agreement.

The OIC has a regulatory responsibility to ensure settlements are not unconscionable. Otherwise, there is no formal approval process for the parties to finalize a settlement agreement.

If a claimant settles an issue on a “full and final” basis, their right to reopen the claim for that issue will be waived, and they will be barred from reopening the claim on that issue.

SETTLEMENT

If an injured worker believes that a settlement entered into while he or she was not represented by an attorney is unconscionable (or a gross miscarriage of justice), he or she may request that the Insurance Commissioner review the settlement. The request for the review must be filed within 180 days of the settlement.

SETTLEMENT

If a claimant asserts that the claim they entered into is unconscionable, the OIC will refer the request to a hearing examiner for a hearing. Upon receipt of the hearing examiner’s

recommended decision, the Insurance Commissioner will affirm, modify or reject the hearing examiner’s decision.

Appeal to Circuit Court.

SETTLEMENT

Medicare Secondary Payer Act: Medicare may have a protected interest when settling

a workers’ compensation case that includes future medical treatment.

These laws apply if the claimant is a current Medicare beneficiary or if they may become a Medicare beneficiary within 30 months.

To protect Medicare’s interests, a portion of the workers’ compensation settlement proceeds must be “set aside” by the claimant to pay future medical expenses resulting from the workers’ compensation injury.

Impact on Social Security Disability Insurance (SSDI): If an injured worker is receiving workers’

compensation benefits, their SSDI may be reduced or offset. A potential settlement may impact the offset.

SETTLEMENT

QUESTIONS AND ANSWERS


www.wvinsurance.gov

[email protected]

304-558-6279

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