West Virginia Workers’ Compensation
Awareness of workplace hazards is the most important way of avoiding injuries at work. Unfortunately, many hazards are not apparent to the workforce and may even be unknown to your employer. Knowing your rights under West Virginia Workers’ Compensation laws is of vital importance to every working man and woman in this state. In most cases, the workers’ compensation rights are your ONLY rights against your employer when you are injured at work.
All workers’ compensation benefits are paid by your employer (if it is self-insured) or by the Workers’ Compensation Division (from premiums paid by your employer). Too often, employers and the Workers’ Compensation Division are able to avoid their responsibility to injured workers simply because the workers do not know their rights under workers’ compensation laws.
Who is Entitled To Workers’ Compensation
To be covered under the West Virginia Workers’ Compensation Fund, an injured employee must be injured in the state of West Virginia, while working for an employee that subscribes to the compensation fund. The injury must occur at work and not be caused by intentional conduct of the employee. Self-insured or small employers must subscribe to the fund for injured workers to be covered.
Types of Workers’ Compensation Claims
There are four basic types of workers’ compensation claims recognized under West Virginia law 1.) Occupational Injury; 2.) Occupational Pneumoconiosis; 3.) Occupational Hearing Loss; and 4.) Occupational Disease. Each type of claim has its own unique characteristics and limitations that are important to every working man and woman. Each type of claims is discussed more fully in the following sections.
Occupational Pneumoconiosis claims are filed by workers who have suffered lung injuries or breathing difficulties as a result of exposure to occupational dust. Occupational pneumoconiosis claims are filed for injured workers exposed to many types of dusts, including asbestos, silica, rock dust, steel dust, grinding dust and any other dusts encountered in the workplace. When occupational pneumoconiosis claims are filed, the injured employees are sent to a medical examination in Charleston, West Virginia. The examination includes a chest x-ray and pulmonary function test. If the x-ray shows scarring of the lungs or the breathing test shows pulmonary problems, the injured worker may be entitled to an award for permanent disability.
Like injury claims, occupational pneumoconiosis claims are also governed by a statute of limitations. A claim for occupational pneumoconiosis must be filed within three years from the date the employee knew or should have known of his or her occupational pneumoconiosis or within three years from his or her date of last exposure, whichever date is later. If a worker has been retired or out of the workforce, he must file within three years of the date a doctor informed him of his lung condition. If an employee learns of his lung problem while still working, he must file a claim within three years from the date he is last exposed to occupational dust. If a worker fails to file a claim within the statute of limitations, the claim will be rejected.
In order to file an occupational pneumoconiosis claim, two forms must be completed. A WC-105 must be completed by the worker. The WC-105 requests information regarding the employee’s work history and medical condition. A form called WC-205 is to be completed by a physician. It requires the doctor to indicate the diagnosis and give some general medical information. Once these two forms are filed, the Workers’ Compensation Division reviews the information and schedules the examination in Charleston.
Occupational Hearing Loss
Occupational hearing loss claims are filed by workers who have suffered permanent hearing loss as a result of exposure to noise in the workplace. Occupational hearing loss covers any hearing loss suffered by a worker who has been exposed to noise while working, regardless of the source.
Like occupational pneumoconiosis claims, hearing loss claims are also governed by a three year statute of limitations. A claim for occupational hearing loss must be filed within three years from the date the employee knew or should have known of his or her occupational hearing loss or within three years from his or her date of last exposure to occupational noise, whichever date is later. If a worker has been retired or out of the workforce, he must file within three years of the date a doctor informed him of his hearing loss. If an employee learns of his hearing loss while still working, he must file a claim within three years from the date he is last exposed to occupational noise. If a worker fails to file a claim with the statute of limitations, the claim will be rejected.
In order to file an occupational hearing loss claim, the worker must complete a WC-125, a hearing loss form. To file a claim, the worker must be examined by a certified otolaryngologist (hearing doctor) who will complete the hearing loss form. This examination will include a hearing test. Once a claim is filed, if it is ruled compensable, the claimant will be reimbursed for the cost of the examination. In addition to a disability award, the injured worker may be entitled to receive hearing aids.
Occupational disease claims are filed for a worker who suffers from a disease process caused by his or her occupation. The basics of the claim are similar to the occupational pneumoconiosis claims. Occupational disease claims cover any disease process, which is not an ordinary disease of life. Common examples of occupational disease claims include cancers, skin disorders, and disease resulting from chemical exposures.
Occupational disease claims are governed by a three-year statute of limitations similar to occupational pneumoconiosis and hearing loss claims. A claim for occupational disease must be filed within three years from the date the employee knew or should have known of his or her occupational disease or within three years from his or her date of last exposure, whichever date is later. If a worker has been retired or out of the workforce, he must file within three years of the date a doctor informed him of his occupational disease. If an employee learns of his occupational disease while still working, he must file a claim within three years from the date he is last exposed to the disease-causing agent at work. If a worker fails to file a claim within the statute of limitations, the claim will be rejected.
To file an occupational disease claim, a WC-123 form must be completed. This form is completed in the same manner as for an occupational injury claim except that the physician must check the occupational disease box. It is important for the physician to give a detailed description of the disease and its relation to your work.
Claims For Injuries Causing Death
If a worker dies as a result of an occupational injury or exposure, his or her dependants have the right to file a dependant’s benefits claim. This type of claim may be filed by any person dependant upon the deceased worker. A dependent’s claim must be filed within one year of the date of death. If it is ruled that the workers’ death resulted from a work-related injury, dependent spouses, minor children, children in college and any other dependents are entitled to benefits payable from the workers’ compensation division.
Statutes of Limitations
As discussed in the earlier section, all workers’ compensation claims are subject to statutes of limitations. For all practical purposes, these statutes of limitations are absolute and not subject to forgiveness. Due to this standard, it is absolutely imperative that all workers know the time limitations. When in doubt, injured employees should contact a union representative or our law firm to make certain no deadlines are missed.
Workers’ Compensation Benefits Available
When a worker is injured on the job, he or she is entitled to compensation from the workers’ compensation fund. There are basically four types of compensation available, each of which is discussed below.
Temporary Total Disability
When a worker is injured and temporarily unable to work, he or she is entitled to Temporary Total Disability (TTD) benefits. These benefits are payable for an interim period when