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Jenkins Fenstermaker, PLLC

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Huntington, WV 25701-2225

Phone (304) 523-2100

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By Steven K Wellman Of Jenkins Fenstermaker, PLLC on 12/28/2022
Compensability of Workers’ Compensation Claims in WV

Employers in West Virginia (WV) must manage business operations and employment matters in what can feel like a funnel cloud of changing federal and state regulations. At Jenkins Fenstermaker, PLLC, we strive to provide legal counsel and representation to alleviate some of this burden. A new series of facts sheets, “Brief Facts,” pinpoints issues related to WV workers’ compensation, offering quick references to give employers quick answers to important questions. The most recent edition of “Brief Facts” addresses the compensability of workers’ compensation claims in WV.

Download the compensability edition of “Brief Facts” and sign up for the Jenkins Fenstermaker workers’ compensation newsletter to get the quick reference guide and future installments, and read on for more detail and discussion of WV workers’ compensation compensability.

What Employers Need to Know: Compensability of Workers’ Compensation Claims in WV

Under WV Code § 23-4-1(a), an injury may be covered by the employer’s workers’ compensation insurance coverage when it occurs in the course of employment and as a result of work-related activities. In Barnett v. State Workmen’s Compensation Commissioner and Lilly v. State Workmen’s Compensation Commissioner, WV courts established and affirmed that a compensable workplace injury must arise from a “definite, isolated, fortuitous occurrence” or occur gradually over time as a result of performing duties in the course of employment.

Other factors impact WV workers’ compensation compensability, however, and these must also be considered when managing and defending claims from an employer’s perspective. In this first blog in a series of three, we will discuss the following aspects of WV workers’ compensation law and their role in compensability:

Installments two and three of this series will cover these additional matters of note when identifying a compensable workplace injury:

  • Preexisting conditions;
  • Claims filed when an employee is aware of a pending layoff, termination, or other relevant change in employment;
  • Idiopathic falls and cause of injury;
  • Zone of employment;
  • Mental health claims;
  • Horseplay;
  • Intoxication; and
  • The consequences of unreasonable denial.

Claimants Bear the Burden of Proof in WV Workers’ Compensation Claims

The case of Sowder v. State Workmen’s Compensation Commission established the precedent observed regarding the burden of proving compensability in workers’ compensation claims in WV. This burden is placed upon the claimant/employee, who must clearly establish that the reported injury occurred in the course of and resulting from employment and meets the standards required by law.

Preponderance of Evidence Regarding Compensability of Workers’ Compensation Claims in WV

WV Code § 23-4-1g(a) requires the resolution of workers’ compensation matters to be based on a preponderance of evidence that supports the decisions made in a claim or case. The preponderance of evidence must include, though not be limited to an assessment of the following:

  • Relevance;
  • Credibility;
  • Materiality; and
  • Reliability.

Resolution of a WV workers’ compensation compensability matter may not be based only on reliable dispositive evidence that is favorable to either party’s interests.

The WV Workers’ Compensation Statute of Limitations

The WV workers’ compensation statute of limitations in WV Code § 23-4-15 sets forth the required timelines for reporting a compensable workplace injury or occupational disease. For on-the-job injury or death, a workers’ compensation claim must be filed within six months after the date the injury or death occurred.

The timeframes for occupational diseases are longer and more complex:

  • For occupational pneumoconiosis (OP) disease claims, a claim must be filed within three years of the last date of exposure or the date of diagnosis, whichever is later.
  • For OP claims filed after the death of an employee, a claim must be filed within two years of the date of death.
  • For all other occupational disease claims, including hearing loss claims, the filing must occur within three years from the last known exposure, diagnosis of disease, or the date the claimant should reasonably have known about the condition, whichever is later.
  • For deaths due to occupational diseases other than OP, a claim must be filed within one year of the employee’s death

In addition to the required timelines for filing a claim, employees are required by state law to report injuries to the employer “immediately,” which is defined in WV Code as within two days. While failure to do so may not be the sole basis for the denial of a claim, it may reduce the credibility and reliability of the claim under the law.

Multiple Employers in Occupational Disease Claims

The precedent for allocation of liability for occupational disease claims in WV was established by Pioneer Pipe, Inc. v. Swain, in which the court decided that multiple employers could not share responsibility for occupational disease claims. In WV, the last employer to expose a claimant to the hazards of an occupational disease is solely responsible for the claim, regardless of the employee’s time of employment with that employer and elsewhere.

Understanding Compensability of Workers’ Compensation Claims in WV

Multiple factors are at play in determining WV workers’ compensation compensability and assigning liability to employers. In addition to the variety of elements involved, workers’ compensation laws are always in flux, with legislators updating state code relatively often.

The workers’ compensation attorneys at Jenkins Fenstermaker, PLLC advocate for reforms and revisions to state workers’ compensation policy on the behalf of employers and stay up-to-date on how these laws impact our clients and others. To discuss the compensability of workers’ compensation claims in WV or related matters, contact Steven K. Wellman and the Jenkins Fenstermaker team by calling (304) 523-2100 or completing this online contact form. We are here to help.