How COVID-19’s Effect on West Virginia Affects Claims Appeals

Jenkins Fenstermaker’s Steven K. Wellman and Mac Heslep, two leading WV workers’ compensation defense attorneys, co-chair the Workers’ Compensation Committee of the Defense Trial Counsel of West Virginia. On April 28, 2020, the co-chairs hosted a teleconference at which Chief Administrative Law Judge Bradley A. Crouser and Chairwoman Rita Hedrick-Helmick were the featured speakers. The teleconference addressed COVID-19’s effect on West Virginia workers’ compensation.

Workers’ Compensation Appeal Proceedings During the Pandemic

Chief Judge Crouser said that his office has been able to stay current in the issuance of decisions of litigated workers’ compensation claims. Understandably, motions and hearings have been delayed. As the West Virginia Office of Judges returns to normal operations, whenever that may be, they will focus on the catch-up work necessary in those regards. That will likely cause a temporary drought in terms of final decisions.

WV workers’ compensation hearings are not anticipated to be in-person in the foreseeable future. All hearings will be held by phone. In the case of expedited workers’ compensation hearings, when evidence would normally be due no later than the hearing itself, he said that it would be sufficient to submit evidence by regular mail up to the date of the hearing as long as you inform the presiding judge that you are doing so. Chief Judge Crouser said that the Office of Judges is significantly relaxing all normal deadlines and rules. However, he did indicate that there will be no automatic extensions and the parties will be required to file a motion to extend if they want additional time.

Chairwoman Hedrick-Helmick explained that the Board of Review was able to have its March argument docket as scheduled, and all March decisions have been or will be issued within a matter of days. However, the April hearing docket was not held. They plan to have the April and May hearing dockets on May 21, and this will be telephonic. It is anticipated that the June docket will also be telephonic.

Chief Judge Crouser and Chairwoman Hedrick-Helmick were optimistic that both offices would get back up to normal operations this summer or whenever permitted to do so. They plan to follow social distancing guidelines, so litigants may have to wear masks and personal protective equipment when in-person hearings resume. The details remain to be seen at this time.

Virtual IMEs for Workers’ Compensation Claims

Normally workers’ compensation claims involve an in-person independent medical examination (IME) by a workers’ compensation physician. In the call, both judges addressed the use of telemedicine or virtual IMEs for workers’ compensation claims during the pandemic.

There is no statute, rule, or procedure that addresses this topic, at least not yet. Judge Crouser said that the West Virginia Insurance Commission is contemplating a new rule, perhaps an emergency rule, to encourage the use of telemedicine. However, both judges expressed doubt about telemedicine’s feasibility in this context. For example, they questioned how range of motion and other clinical findings could be made virtually, especially for permanent partial disability (PPD) awards. Judge Crouser said that the Office of Judges will weigh telemedicine reports as best they can on a case-by-case basis, and that telemedicine may be better for temporary total disability (TTD) and/or treatment disputes than for PPD ratings.

Workers’ Compensation Claims for Coronavirus

Chairwoman Hedrick-Helmick’s question to the practitioners on the call about COVID-19 claims fostered much discussion. Currently, there is no statute, rule, or regulation that provides any presumption in favor of COVID-19 compensability. Chairwoman Hedrick-Helmick said that, for its part, the Board of Review will weigh workers’ compensation claims for coronavirus on a case-by-case basis and will need to evaluate whether the exposure more likely occurred at work or in some other setting. The evidence should address factors such as these:

• Whether the claimant has traveled or lives in a “hot spot”;
• Whether he or she has family members who tested positive before the claimant; and
• Whether there is evidence the claimant had any work-related exposure to COVID-19

The decision on compensability will be based upon where the exposure most likely occurred.

Judge Crouser and Chairwoman Hedrick-Helmick cautioned that a rule or statute could be promulgated to create a presumption regarding workers’ compensation claims for coronavirus, and all levels of state government are monitoring the legislative and regulatory approaches of other states. They did note the general rule that, under federal legislation, claimants are probably better off drawing unemployment compensation benefits than temporary total disability benefits in workers’ compensation claims.

We Help Employers Needing Guidance on COVID-19’s Effect on West Virginia Workers’ Compensation

Workers’ compensation practitioners in West Virginia have their work cut out for them preparing cases for hearings with no written or historical guidance and growing delays in workers’ compensation proceedings. If you have questions about COVID-19’s effect on West Virginia workers’ compensation matters such as litigation during the pandemic, telemedicine evaluations, or other workers’ compensation defense matters, do not hesitate to contact WV workers’ compensation defense attorneys Steven K. Wellman or James “Mac” Heslep at Jenkins Fenstermaker, PLLC by calling (304) 523-2100 or by completing our online contact form.