What is Workers' Compensation?
What types of claims are covered under the workers' compensation system?
What types of benefits are available under the workers' compensation system?
How long do I have to file a workers' compensation claim?
What should I do if I've been injured on the job, or exposed to hazardous dusts or chemicals while working?
Should I contact a lawyer about filing a workers' compensation claim?
Where can I get more information about workers' compensation and filing a workers' compensation claim?
What is Workers' Compensation?
Workers Compensation is a no-fault insurance system designed to provide simple and immediate relief to workers for the physical and economic effects of a job-related injury, disease or death. Coverage is "compulsory" in the majority of states. In fact, coverage is "elective" in only three states (i.e., New Jersey, South Carolina, and Texas).
Generally, there are only three options available to employers' in obtaining workers' compensation coverage: state fund insurance; self-insurance; and private insurance. In West Virginia, as well as seven other states, coverage is required through the state fund system. However, even in these states, self-insurance is permitted to some degree.
Like any other insurance system, a contract exists whereby one (the insurer) undertakes to indemnify or pay another (an insured, or beneficiary) a specified amount upon a predetermined event. To receive indemnification, one pays a fee or premium to an insurer in exchange for protection in case of a loss. When a loss occurs, an insured files a claim. This claim is then reviewed by the insurer, and claims are paid to an insured or beneficiary based on the extent and nature of the loss or injury.
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What Types of Claims Are Covered Under the Workers' Compensation System?
The "key" to workers' compensation coverage is that to be compensable, an injury, disease or death must occur in the course of and result from one's employment. In West Virginia, there are five types of compensable claims: occupational injuries; occupational diseases; occupational pneumoconiosis; occupational hearing loss; and occupational death.
- Occupational Injury (OI)-- This is by far, the most common type of workers' compensation claim. An OI is generally defined as an injury which arises out of and in the course of one's employment. Usually, claimants' can collect for all medical expenses reasonably provided, with one exception. Generally, property damage is not covered.
- Occupational Pneumoconiosis (OP)-- OP is a disease of the lungs caused by the inhalation of minute particles of dust. First recognized in 1935 after the catastrophic loss of approximately 1,500 workers from silicosis contracted during the excavation of the Hawk's Nest Tunnel in Gauley, West Virginia, OP claims include: silicosis; asbestosis; and coal miners' pneumoconiosis (black lung). OP arises out of and in the course of one's employment if one is exposed to the hazards of breathing abnormal quantities of minute particles of dust in the workplace. To file a claim in West Virginia, a worker must be exposed to the hazards of OP in the state of West Virginia over a continuous period of not less than two years during the ten years immediately preceding the date of their last exposure, or for any five of the fifteen years immediately preceding the date of their last exposure. In West Virginia, a worker is entitled to a rebuttable presumption of OP if they can show that they were exposed to the hazards of OP for a period of ten years during the fifteen years immediately preceding the date of their last exposure and that they suffer a chronic respiratory disability because of this exposure.
- Occupational Disease (OD)-- An OD is a disease incurred in the course of and arising out of one's employment. Typically, it must be distinct from a disease which occurs in the ordinary course of life. Examples may include: mesothelioma; lung cancer; leukemia; non-Hodgkin's lymphoma; or multiple myeloma. Generally, one must show that their employment increased the risk of developing the disease. Many states maintain a schedule, or list of diseases that are known to occur in specific occupations. In West Virginia, and the majority of states, a disease is generally considered work related if medical studies and research clearly link the disease to the work hazard.
- Occupational Hearing Loss (OHL)-- Not recognized until the 1970's, West Virginia remains in the minority of states which recognize occupational hearing loss as a compensable injury. OHL may be caused by either a single incident or one's continual exposure to the hazards of unusual or excessive amounts of noise in the workplace.
- Occupational Death-- An occupational death is a death in which an OI, OP or OD contributed in any material degree to death or markedly hastened death. Death benefits are provided by workers' compensation legislation to certain classes of beneficiaries (generally, the surviving spouse and any minor children). In the majority of states, a beneficiary need only satisfy the relationship status; in others, including West Virginia, the beneficiary must satisfy the relationship status and prove dependency. However, in West Virginia, the marital relationship creates a presumption of dependency. In addition, because the right to death benefits is a right created by statute, a beneficiary's claim is legally separate and distinct from the deceased worker's claim. Therefore, a deceased worker's release, settlement, or unfavorable compensation decision is no bar to the claim of a beneficiary.
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What Types of Benefits Are Available Under the Workers' Compensation System?
Depending on the severity of the injury or disease, a worker may receive disability benefits for: temporary total disability; temporary partial rehabilitation disability; permanent partial disability; permanent total disability; or death benefits.
- Temporary Total Disability (TTD)-- TTD is an inability to return to any work during the healing or recovery period after an injury, or illness. In West Virginia, it requires an inability to return to work for more than three days. TTD ends with a return to work, a release to return to work, or upon reaching a maximum degree of medical improvement. It is generally limited to a statutorily prescribed period, unless the worker is in a full-time rehabilitation program. Benefits are calculated on a percentage of the worker's average weekly wage (generally, 66 2/3 - 70%).
- Temporary Partial Rehabilitation Disability (TPRD)-- TPRD is a temporary disability preventing an injured worker from returning to his old work full-time. Generally, the injured worker works part-time in an approved rehabilitation plan job. Benefits are calculated as a percentage of the difference between the worker's pre-injury wage and current wage. In addition, benefits are generally only payable when the injured worker is receiving vocational rehabilitation services.
- Permanent Partial Disability (PPD)-- A PPD is a permanent disability that is partial, not temporary, and reduces the worker's earning capacity. There are two types: scheduled and unscheduled. A scheduled disability, or a total loss by severance of a body part, results in a PPD per statutory schedule, or percentage. In West Virginia, there are thirty-four scheduled disabilities. For example, a loss of a hand equals a 50% PPD, while the loss of a thumb equals a 20% PPD. An unscheduled disability (not a total loss by severance), results in a PPD fixed by the percentage of medical impairment. Benefits are calculated on a percentage of the worker's average weekly wage (generally, 66 2/3%).
- Permanent Total Disability (PTD)-- PTD is a disability that renders a worker unable to engage in any substantial gainful employment that is similar to the worker's previous form of employment. Again, there are two types: scheduled and unscheduled. Scheduled PTD benefits are automatically awarded for the loss of both eyes or their use; the loss of both hands or their use; the loss of both feet or their use; or the loss on one hand and one foot or their use. In West Virginia, an unscheduled PTD comprises injuries where a single or combined permanent disability results in a permanent disability of 85%, or more. Such an injury or combination of injuries entitles a worker to a rebuttable presumption of PTD. However, the worker must also be at least 40% medically impaired on a whole body basis due to an occupational source, or have sustained a 35% statutory disability. For OD and OP claims in West Virginia, a worker must have been awarded 40% in prior PPD awards, have suffered a medical impairment of 40%, or have sustained a 35% statutory disability to be eligible for a PTD award.
- Death/Dependent's Benefits-- Death/Dependent's benefits are provided to certain classes of beneficiaries as detailed above (FAQ: II.E). Benefits usually include burial expenses, within a statutorily prescribed limit, and compensation for beneficiaries calculated on a percentage of the deceased's average weekly wage. If a worker's death is the result of an OI, OP or OD, benefits are paid to such dependent's for as long as their dependency lasts, in the same amount as was paid or would have been paid the deceased worker for total disability had s/he lived. If a worker receiving PTD dies from a cause other than their disabling injury, then an award of 104 times the weekly benefit payment will be made to the dependents either as a lump sum or in periodic payments.
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How Long Do I Have To File A Workers' Compensation Claim?
A person has a limited amount of time in which to file a claim for workers' compensation benefits, depending on whether the person is filing for an OI, an OP, an OD, or for death/dependent's benefits. This is known as the Statute of Limitations period, and it varies by state. If a person does not file a claim within this statute of limitations period, they are forever barred from filing a claim.
In West Virginia, the statute of limitations period for filing various claims is:
- OI, or occupational death claims-- six months;
- OP death, or OD death claims-- one year;
- OP or OD claims' statute of limitations are triggered by the later of two possible dates: 1) three years from the date of last exposure; or 2) three years from the date that the OP or OD was made known to the worker by a physician, or that the worker should have reasonably known they suffered from an OP or OD.
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What Should I do If I've Been Injured on the Job, or Exposed to Hazardous Dusts or Chemicals While Working?
The first thing to do if you have been injured on the job, or believe you have been exposed to hazardous dusts or chemicals while working is to report the injury or exposure to your employer. Hartley & O'Brien recommends that you also consult your primary care physician for an immediate evaluation.
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Should I Contact A Lawyer About Filing a Workers' Compensation Claim?
If you believe you have a compensable injury or disease, you should contact a lawyer at once to learn of your rights to file a workers' compensation claim. A lawyer will make sure you follow the necessary steps, from testing, to making assurances that the Statute of Limitations does not expire.
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Where Can I get More Information About Workers' Compensation and Filing A Workers' Compensation Claim?
Hartley & O'Brien is one of the leading law firms in West Virginia protecting the rights of those individuals who have developed an occupational pneumoconiosis, or occupational disease because of their exposure to hazardous dusts and chemicals while working. Please call toll-free at 1-800-363-8591 with any further questions you may have.
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Free attorney consultation: If you or a family member has been diagnosed with a deadly disease such as lung cancer, mesothelioma, leukemia, lymphoma or multiple myeloma, please contact our lawyers as soon as possible. We will investigate your case at no cost, and you will not have to pay any attorney's fees unless we obtain a recovery for you.
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