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Jenkins Fenstermaker, PLLC

325 Eighth Street

Huntington, WV 25701-2225

Phone (304) 523-2100

Toll Free (866) 617-4736

By Steven K Wellman Of Jenkins Fenstermaker, PLLC on 01/11/2023
Workers’ Compensation Compensability in WV: Part Three

When an employee is injured at work in West Virginia (WV), the employer and workers’ compensation insurance provider, when applicable, may be responsible for covering the resulting expenses, including medical costs and lost wages. However, a variety of factors may be considered when determining workers’ compensation compensability in WV. To avoid paying for non-work-related injuries, employers and insurers need to know what situations may allow them to dispute or deny a workers’ compensation claim and benefits.

Factors in Workers’ Compensation Compensability in WV

To assist employers and insurers in determining what is and is not a compensable injury in WV, the WV workers’ compensation attorneys at Jenkins Fenstermaker, PLLC created a quick reference sheet, “Brief Facts 2: WV Workers’ Compensation—Compensability.” The present blog is the final installment in a series of three that address the matters highlighted in “Brief Facts 2.” To receive future editions of “Brief Facts,” sign up for the Jenkins Fenstermaker workers’ compensation newsletter.

The first blog in this series regarding workers’ compensation compensability in WV covers basic and procedural issues, including the burden of proof, preponderance of evidence, the statute of limitations for filing claims, and employer liability for occupational disease claims.

“WV Workers’ Compensation Compensability: Part Two” addresses matters related to preexisting conditions, an employee’s knowledge of pending employment changes at the time of filing a claim, and the compensability of idiopathic falls.

This third and final installment discusses what employers and insurers need to know about the following:

Defining the Zone of Employment in Workers’ Compensation Claims

When an employee is injured while traveling to or from work and not on the employer’s property, the injury is not compensable unless other circumstances bring the situation into the scope of employment. These scenarios include special errands or other travel expressly or impliedly required by the employer.

Injuries that occur on an employer’s property, including employer-owned parking lots, are usually compensable unless other circumstances exist to cast doubt on the claim.

Mental Health Conditions and Workers’ Compensation Compensability in WV

Mental health conditions that occur independently of any physical injury are statutorily barred in WV. Sometimes referred to as “mental-mental claims,” situations involving mental and emotional conditions that are unrelated to a compensable physical incident and injury are not compensable, as set forth in WV Code § 23-4-1f. There is an exception for post-traumatic stress disorder (PTSD) in first responders when the employer has elected to provide that coverage.

Considerations Related to Horseplay and Intoxication

As WV workers’ compensation attorneys, the team at Jenkins Fenstermaker often receives questions from employers about on-the-job injuries resulting from employee horseplay or when an employee is intoxicated or under the influence of drugs or alcohol.

The WV workers’ compensation statute does not specifically address horseplay and its role in work-related injuries. However, in some cases, a case can be made that an injury resulting from horseplay did not occur in the course of employment. If your company is addressing a claim related to horseplay, an experienced WV workers’ compensation defense lawyer can help you determine if the claim should be questioned or denied.

When an employee is injured at work and the employer reasonably suspects intoxication, WV Code § 23-4-2 allows the employer to perform a blood test to determine if the employee was intoxicated at the time of the incident causing injury. If the substance in question is alcohol, the test must be performed within two hours, so it is critical that employers act quickly in these cases. A positive result in drug and alcohol testing after an on-the-job injury can result in a total bar to a workers’ compensation claim.

An additional statute sometimes applies to intoxication in workers’ compensation cases. When an employer has a drug and alcohol testing policy in place that is compliant with the WV Safer Workplace Act, it is allowed to conduct random and post-accident testing by any means, including hair, blood, saliva, and urine. A positive test that confirms an employee was intoxicated at the time of an injury at work results in a bar to indemnity benefits for the related injury.

Consequences of Unreasonable Denial of a Compensable Injury in WV

WV workers’ compensation claimants have the right to protest the denial of their claim for benefits. If a claimant litigates the denial of a claim or benefits under a compensable claim, the claim administrator must be able to provide evidence or a relevant legal basis for the denial, as outlined in WV Code § 23-2C-21(c).

If the claimant successfully litigates the denial of a claim or benefits, after all appeals are resolved, the employee may file an allegation that the denial was unreasonable and be granted an award that includes attorney fees and any actual costs incurred.

Workers’ Compensation Compensability in WV: Defense Counsel and Representation

Employers should work with a knowledgeable WV workers’ compensation defense attorney to ensure and prove that claim and benefit denials are supported by relevant and probative evidence as required under state law.

When determining what is a compensable injury in WV, managing claims, and litigating matters related to workers’ compensation compensability in WV, employers and insurers should consult with experienced WV workers’ compensation attorneys. The WV workers’ compensation defense team at Jenkins Fenstermaker, PLLC provides the informed counsel and representation required to mitigate current and future losses. Contact us to discuss your questions and concerns by calling (304) 523-2100 or completing our online contact form.