In the 75 years after its creation in 1913, the West Virginia workers’ compensation system generated an unfunded liability measured in the billions of dollars.  In prior decisions regarding that system, the West Virginia Supreme Court of Appeals noted that spiraling debt within the system could be attributed to the liberalization of permanent total disability (“PTD”) eligibility among West Virginia workers at rates far higher than the national average.

As a result of this staggering debt commonly attributed to these PTD awards, the West Virginia Legislature initiated reform efforts in 1993.  Following significant reforms to West Virginia’s workers’ compensation system in 2003 and 2005, employers benefitted from statutory changes that granted them the right to review claims in which awards of PTD benefits had been made.  This grant of authority from the Legislature remained relatively unused since the revisions to the Workers’ Compensation Act because of a lack of interpretation from the Supreme Court of Appeals.  A recent decision from the Court, however, is likely to change that lack of use.

In 2006, an employer initiated a review of its prior PTD awards.  Among those prior awards was the claim of a worker who had injured his lower back while loading a piece of equipment onto a truck in 1990.  In reviewing that matter, the employer questioned the worker’s continuing inability to participate in the workforce.  Following an investigation into the circumstances of the worker’s condition, the employer concluded that the PTD recipient no longer met the eligibility requirements to receive benefits, and its workers’ compensation claim administrator revoked them.  Six years of litigation over the legality of the revocation ensued, culminating in a decision from the Supreme Court of Appeals in Justice v. WVOIC.

In that decision, the Supreme Court of Appeals affirmed that employers do, in fact, have the right to conduct reviews of prior PTD claims as stated in the relevant statute.  Now, employers who had previously been hesitant to undertake such reviews can be assured that they have the right to do so.  We expect to see a lot of action under this provision in the future.

James "Mac" Heslep defends employers against claims of work-related injury and illness. His practice began with a focus on the defense of state workers’ compensation claims. Since 2004, he has defended more than 2,000 protests before the West Virginia Workers’ Compensation Office of Judges.
» See more articles by James W. Heslep
» Read the full biography of James W. Heslep at Steptoe & Johnson

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