REVIEWING WORKERS COMPENSATION DISABILITY CLAIMS IN WEST VIRGINIA: WE HOLD THESE TRUTHS TO BE SELF-EVIDENT, THAT ALL INSURERS ARE CREATED EQUAL

Following significant reforms to West Virginia’s workers’ compensation system in 2003 and 2005, insured employers benefitted from statutory changes that granted them the right to review claims in which awards of permanent total disability benefits had been made.  This review process allowed insured employers to determine if workers who had been granted such awards previously remained qualified recipients of the benefits.  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 decision entered just this week, however, is likely to change that lack of use.

The statutory language granting the right of review to insured employers failed to specify whether self-insured employers held the same right.  Aside from insured employer’s reluctance to exercise their statutory right of review, many self-insured employers remained doubly hesitant to conduct reviews of their prior permanent total disability claims in the manner prescribed for insured employers.  In the face of this uncertainty, some self-insured employers did claim the right to conduct permanent total disability reviews in the same manner as insured employers.  On Wednesday, the Supreme Court of Appeals affirmed that self-insured employers do, in fact, have the same right to conduct these reviews just as insured employers do.  This decision formally grants the right of review to self-insured employers while affirming the right of employed insurers to exercise reviews as stated in the relevant statute.  Now all employers who had previously been hesitant to undertake such reviews can be assured that they have the right to conduct permanent total disability award reviews.

If, as an employer, you wish to undertake reviews of your prior permanent total disability claims to ensure that the awards remain appropriate, you can now feel secure in your right to do so.

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