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WV Workers' Compensation Legislation in 2019 and Related Bills in Session

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The West Virginia (WV) Legislature is now in session, and the attorneys of Jenkins Fenstermaker, PLLC are monitoring bills that may impact workers' compensation. Several of the proposals currently under consideration related to WV workers' compensation legislation could have significant effects on progress that has been made in leveling the field for employers in the Mountain State.

What We're Watching in WV Workers' Compensation Legislation

The WV workers' compensation legislation we are monitoring includes the following bills that may impact workers' compensation:

· Proposals that will limit, expand, or clarify coverage of specific groups and diagnoses;

· Bills related to black lung and occupational pneumoconiosis (OP), with a target on the statute of limitations in OP claims; and

· Another attempt at the creation of an intermediate court of appeals in WV.

WV Workers' Compensation Legislation on Coverage Limits, Expansion

Senate Bill (SB) 74 places new limitations on coverage by providing an exemption of unpaid volunteers in ski areas from workers' compensation benefits, amending WV Code § 23-2-1a.

Meanwhile, SB 114 and House Bill (HB) 2321 seek to expand coverage by providing workers' compensation benefits to first responders diagnosed with post traumatic stress disorder (PTSD), amending WV Code § 23-4-1f. HB 2321 appears to mirror SB 114.

Both bills define coverage to include law enforcement officers, firefighters, emergency medical technicians, or paramedics. PTSD is defined under the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), which could be problematic since WV providers still use the DSM-IV.

Finally, HB 2365 provides clarification of the definition of employee for the purposes of unemployment compensation and workers' compensation to conform with Internal Revenue Code provisions, amending WV Code § 21A -1A-16 and § 23-2-1a.

Black Lung, PPD, and the Statute of Limitations in OP Claims

Several potentially costly WV legislative bills related to black lung and OP claims are under consideration. SB 144 provides for the creation of the WV Black Lung Program and grants entitlement for pain and suffering for OP. New article 4D is proposed, and this bill is loaded with new, costly measures.

SB 260 would reinstate the five percent permanent partial disability (PPD) award for simple pneumoconiosis without measurable pulmonary impairment, such as x-ray evidence of the disease without breathing impairment. West Virginia law used to provide this benefit, but it was abolished in the 2005 statutory reforms that privatized the workers' compensation system.

SB 266 would also mandate a 25 percent PPD award if there is x-ray evidence of pulmonary massive fibrosis or complicated pneumoconiosis without impairment. The 25-percent award would then be credited against any future award in the event that claimant reopens the claim after the initial award is granted.

Also of note, and requiring somewhat more explanation, is HB 2588, which was introduced January 22, 2019, and was referred to the House Judiciary. The bill amends WV Code § 23-4-15(b), pertaining to the time limitations provided for filing OP claims, and would negate the favorable November 2018 Supreme Court of Appeals decision obtained in the consolidated Pennington claims, which were argued by the author of this blog of Jenkins Fenstermaker and Tim Huffman of Jackson Kelly.

The bill adds a proviso in subsection (b) that nothing limits the time within which a claimant may obtain an evaluation from the OP Board or limits the applicability of § 23-4-8c (the 10/15 year presumption that impairment is due to OP when a claimant's chest x-ray is insufficient to establish a diagnosis of OP).

The court in Pennington overturned the WV Office of Judges' interpretation, which allowed any claimant to file a new OP claim at any time unless the employer proved that the claimant had received a physician's diagnosis of lung impairment due to OP within the three years preceding the filing. The court agreed with the employers that a claimant filing an OP claim more than three years after the date of last exposure to dust hazards had to show that he or she had filed within three years after receiving a diagnosed impairment from a physician.

None of the four petitioners in the consolidated Pennington cases had a diagnosis of OP, much less a diagnosed impairment, and two of them filed claims more than 15 years after they had stopped working. If HB 2588 is enacted into law, there will be no statute of limitations in OP claims, and WV employers' exposure related to OP claims would not be limited to the coal industry.

Establishing an Intermediate Court of Appeals in WV

Those with interests in WV workers' compensation legislation should be aware that a proposed intermediate court of appeals in WV is, once again, on the legislature's agenda as SB 266 and HB 2366. This has been a hot topic, and I reported to you regarding various WV legislative bills debated in 2017 and 2018 that would have created a court of appeals, although those bills were not enacted for various reasons.

West Virginia is one of few states that do not have an intermediate court of appeals, and, according to the WV Chamber of Commerce, it is the largest such state. We keep hearing that there is broad support for the creation of an intermediate court of appeals in WV, and this may be the year that we finally see it adopted.

Past WV legislative bills would have placed workers' compensation under the jurisdiction of the court of appeals, and it looked like the 2018 legislation would have eliminated the Workers' Compensation Board of Review altogether. Under current law, the appellate system goes from the Office of Judges to the Board of Review to the Supreme Court of Appeals of WV, and all appeals are a matter of right with the courts having no jurisdiction to refuse to hear an appeal.

The proposed changes would likely retain the Board of Review, and appeals from the Board would be prosecuted as a matter of right to the new intermediate court of appeals in WV, while appeals from that court to the Supreme Court of Appeals would be discretionary only on the part of the supreme court. All of this is fluid and subject to change, so we will simply keep our eye on this and see how it develops.

We're Watching WV Workers' Compensation Legislation for You

Changes to coverage, increases in the statute of limitations in OP claims, and the creation of an intermediate court of appeals in WV could all have significant impacts on workers' compensation coverage and employers.

These WV legislative bills may impact workers' compensation and are certainly worth our attention. We will continue to monitor all of this legislation and report any significant developments to you.

If you have questions or would like copies of any of the current WV workers' compensation legislation or other WV legislative bills, just let us know. You can reach our office at (304) 521-2300, toll-free at (866) 617-4736, or by completing our online contact form

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