W. Va. Code § 23-4-16(d) was amended in 2005 in regard to permanent total disability (“PTD”) awards that have been previously granted.  The amendment requires the private carrier or self-insured employer to continuously monitor these awards.  It further allows the private carrier or self-insured employer to reopen these claims for re-evaluation of the PTD award using the current statute governing the granting of such award and also provides for the possibility of modification of the award. 

Under the W. Va. Code of State Rules (W. Va. C.S.R. § 85-5-5), the private carrier or self-insured employer can require the PTD recipient to provide documentation demonstrating their level of income, recreational activities, and work activities.  PTD benefits can be suspended at that time if the claimant does not comply.  The private carrier or self-insured employer can reopen a claim if good cause exists showing the PTD recipient no longer meets eligibility requirements.  The private carrier or self-insured employer must give the claimant a 30-day written notice that his or her claim is going to be reopened. 

Upon reopening and re-evaluation of the claim from a PTD standpoint, the private carrier or self-insured employer may vacate, modify, or affirm the previous award.  The claimant has time during this process to submit evidence showing that he or she continues to be permanently and totally disabled.  If, after the re-evaluation process is complete, the claimant retains his or her award, the costs incurred by the claimant will be reimbursed.  Additionally, upon being identified as a candidate for re-evaluation, the claimant is entitled to legal counsel, and the attorney’s fees incurred in defending the award are to be paid by the entity that reopened the claim. 

The West Virginia Supreme Court of Appeals just recently heard oral argument in regard to a PTD award which was reopened by the self-insured employer and a determination made that the claimant could no longer be considered permanently and totally disabled.  In regard to this particular claim, the claimant incurred a back injury on February 22, 1990.  The claimant never had surgery and received only conservative treatment.  He was granted a 5% permanent partial disability award associated with the compensable injury and received no additional awards for permanent partial impairment.  The claimant was originally granted PTD benefits with an onset date of February 22, 1990. 

Pursuant to the provisions found in W. Va. Code § 23-4-16(d), the self-insured employer reopened the claim on August 16, 2007, as good cause existed to believe that the claimant no longer met the eligibility requirements for a PTD award.  The claimant was advised of the 120-day period within which he was permitted to submit evidence that the benefits should continue.  The claimant’s attorney submitted an up-to-date report from a certified disability management specialist who found that it was doubtful that the claimant could pass an examination for light or sedentary duty.  However, the claimant had been previously evaluated by two physicians, both of whom concluded that the claimant was not permanently and totally disabled from an orthopedic standpoint.  Additionally, the claimant was found to be capable of employment from a psychological perspective.  The claimant was also evaluated by two vocational specialists who concluded that he was not precluded from the workforce as a result of his compensable injury.  Based upon the medical and vocational evidence, the self-insured employer determined that the claimant was no longer eligible to receive PTD benefits and terminated those benefits by order dated December 16, 2007.  The claimant protested that order, and on April 30, 2010, the Office of Judges affirmed the self-insured employer’s order.  The adjudicator determined that the claimant could not be considered permanently and totally disabled.  The Board of Review affirmed that decision as well. 

The claimant filed an appeal to the Supreme Court arguing that the language found in W. Va. Code § 23-4-16(d)(2) does not permit a self-insured employer to reopen a PTD award to determine continuing eligibility, even though the first line of that statute specifically grants said authority.  The claimant’s counsel asserted that the language stating that the former employer “shall not be a party to the re-evaluation” prohibited the action taken by the self-insured employer in this case.  In the appeal, the claimant’s counsel acknowledged that he was arguing a technicality; however, he used this technicality to advocate that his client continue to receive the PTD award previously granted to him. 

Counsel for the employer argued before the Supreme Court that workers’ compensation benefits should not be denied or granted based on technicalities, and as there is no longer a Workers’ Compensation Commission and as our system is now privatized, the employer or its agent must be involved in the re-evaluation of PTD awards.  Additionally, the employer argued before the Court that the evidence showed that the claimant was able to work and the only factor preventing his re-entry into the workforce was his own concern over losing his social security and PTD checks.  The claimant determined that he would make less working as a security guard than he did from his disability payments; and for this reason, he believed that his PTD benefits should not be suspended. 

As the standards for obtaining a PTD award are significantly more stringent than previously, this amendment allows the carriers and self-insured employers to reopen claims where able-bodied workers have been receiving PTD benefits and determine that these claimants are no longer eligible for these benefits where they are able to work under the new standards for determining PTD eligibility.  However, this code section has not been regularly utilized by private carriers and self-insured employers, as there has been no interpretation of it by the Supreme Court.  This issue has now been briefed and argued before the Supreme Court.  Workers’ compensation practitioners can expect a decision hopefully during this Fall term.

Alyssa Sloan focuses her practice in the defense of litigating claims involving workplace injuries and illnesses and related employment matters. She has represented employers in more than one thousand (1,000) protests before the Workers' Compensation Office of Judges and has extensive experience in the appellate practice of worker's compensation claims before both the West Virginia Workers' Compensation Board of Review and the West Virginia Supreme Court of Appeals.
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