Employers are often faced with the situation of an employee whose performance has been deteriorating and, suddenly, the employee suffers a work-related injury.  As an employer, what are your options? 

The first thing the employer should do in the above-described situation is determine if there is a reasonable basis to question whether the employee actually suffered a workers’ compensation injury.  It is important to keep in mind that a work-related injury in West Virginia is defined as being received in the course of and resulting from the employment.  Hopefully, the employer’s employment policies provide that the employee should immediately notify the employer of the injury, or as soon as practicably possible.  Rule 1, which is one of the rules governing the Workers’ Compensation system in West Virginia, requires the employee to immediately give the employer written notice of the injury within two (2) working days.  This rule also provides that failure to give immediate notice of the injury is a factor that can be weighed in determining compensability.  The employer can have a written policy requiring employees to give immediate notice of injury.  If the claimant has not completed a report of injury at a hospital or a treating physician, the employer should provide the appropriate form immediately once the claimant reports the injury.

Internal accident reports and incident documentation are also very important in this situation.  Documenting what happened at the time of the accident, or at the time you were told of the accident, preserves impressions, facts, and can be used to refresh memory even if the employer is not questioning the claim.  An employer should remember that it should only question the claim if it has a reason to do so.  An individual cannot knowingly, intentionally, or fraudulently complete a report of injury.  The employer’s report of injury asks a question regarding whether the employer questions said injury.  The employer should check yes if it can provide documentation along with the report of injury to support why the employer questions the injury.

If there is a question about the injury, such documentation will become evidence relied upon by investigators, the workers’ compensation insurance carrier, the administrative tribunal determining whether the claimant suffered a compensable injury, and possibly even the West Virginia Supreme Court of Appeals.  Proper documentation lends credibility to the record keeper, memorializes facts, and eases the burden of persuasion.  Improper documentation calls into question the training and professionalism of the record keeper, fails to contain relevant facts, and heightens the perception that the employer did something wrong and is attempting to retaliate against the injured worker.  Documents produced in the investigation of whether the claimant suffered a workers’ compensation injury may be used by management, safety personnel, investigators, doctors, and lawyers.  They also may be used as evidence if the rejected claim is protested by the claimant and litigated before the Office of Judges.  Finally, they will also possibly be used in civil litigation because, in West Virginia, employees can sue employers for excess damages in civil court with regard to workers’ compensation injuries in cases of “deliberate intent.”  Incident reports produced by the employer are typically the single most important piece of documentary evidence in any deliberate intent claim.

If an employer does question an injury, it should memorialize facts about what happened, including: (1) who was involved; (2) what happened; (3) when did it happen; (4) where did it happen; (5) how did it happen; and, (6) why did it happen.  If a comment is not a factual observation, leave it out of any documentation supporting the reason to question the injury.  It is very important that the employer be honest and fair in assessing what happened to the injured worker.  The employer should keep in mind that claims administrators are trained to err on the side of ruling the claim compensable.

The employer must act reasonably and in good faith when assessing the workers’ compensation injury of an employee who is already involved in the disciplinary process.  West Virginia Code § 23-5A-1 provides that no employer shall discriminate in any manner against any of its present or former employees because of such present or former employee’s receipt of or attempt to receive benefits under the workers’ compensation chapter.  West Virginia Code § 23-5A-3 provides that it shall be a discriminatory practice to terminate an injured employee while the injured employee is off work due to a compensable injury within the meaning of the workers’ compensation statute and is receiving or is eligible to receive temporary total disability benefits, unless the injured employee has committed a separate dischargeable offense.  This code section defines separate dischargeable offense as misconduct by the injured employee wholly unrelated to the injury or the absence from work resulting from the injury.  A separate dischargeable offense is specifically defined to not include absences resulting from the injury or from the inclusion or aggregation of absences due to the injury with any other absence from work.

Accordingly, should the claimant’s alleged work injury be determined to be compensable, or even be involved in the litigation process regarding whether it is compensable, the employer needs to be very careful.  The employer should continue to expect the employee to comply with all of the employer’s employment policies.  However, the employer must keep in mind that the injured employee is entitled to the protections described above.  Finally, it is important for the employer to remember that the ultimate compensability decision is made by the claims adjuster working for the private workers’ compensation insurance carrier.  If the employer has legitimate questions about compensability, it is imperative that the employer provide the adjuster with all of the documentation resulting from the investigation of the alleged injury.  As always, a competent attorney, well-versed in workers’ compensation issues, can help an employer navigate this process.

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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