Under West Virginia law, Workers’ Compensation provides medical and financial benefits to workers who are injured in the course of and as a result of their employment. This means that if you were hurt at work in West Virginia, while you were performing work-related duties, you may be entitled to benefits.
1. What should I do if I have been injured at work?
Give written notice to your employer as soon as possible regarding the fact that you have suffered a work injury. Seek medical attention if you need it and advise the medical provider that you were hurt at work. In order to receive benefits, you must report your injury to your employer immediately. Do not wait a few hours, days, or weeks to tell your employer that you hurt yourself; do it as soon as possible.
Although you should apply for benefits and report your injury as soon as possible, you absolutely must file your claim within six months of the date of your injury (or death for dependents’ benefits). If you do not file within the 6 month period, your claim is jurisdictionally barred, meaning that your case can never be filed and you will not receive any benefits under any circumstances.
After you tell your boss that you are injured, you will fill out paperwork about the injury.
The Employee’s and Physicians’ Report of Injury Form is filled out by you and the doctor you see regarding the work injury. This report provides the medical basis for your Workers’ Compensation claim. When you fill out your section of the form, be sure to be completely thorough and describe in detail what happened to cause your injury. Use extra paper if necessary. Do not skimp on this – it may hurt your claim later! If at all possible, only see a doctor you trust to fill out this report. Be sure to tell the physician everything about your injury and any pain or symptoms you may have, no matter how trivial they may seem.
2. What kind of benefits are available through workers’ compensation?
The potential benefits you may receive under Workers’ Compensation include: payment of medical bills, payment of temporary total disability (TTD), payment of permanent partial (PPD) and permanent total disability (PTD), vocational rehabilitation, physical rehabilitation, and benefits to surviving dependents of workers killed as a result of employment.
3. What are Temporary Total Disability (TTD) Benefits ?
Temporary Total Disability (TTD) Benefits are paid from your date of injury until you return to work, are released to return to work by your treating physician, or you are found to have reached maximum medical improvement (MMI), whichever happens first.
Although TTD benefits are paid from the date of the injury, you will not be able to receive TTD benefits for the first three days you could not work unless your injury keeps you from being able to work for at least seven days. TTD benefits are meant to be temporary, meaning that you are supposed to receive these if you are suffering from a temporary injury that should be resolved at some point. The maximum amount of time for which you can receive TTD benefits is 104 weeks (2 years).
You will not receive the exact amount you earned at your job as TTD benefits. Under West Virginia law, you will only receive 66 2/3 % of your average weekly earnings, with applicable minimum and maximum amounts. Additionally, if you are entitled to TTD benefits, you will be paid biweekly.
If your injury does not fully resolve and your doctor says that you have reached maximum medical improvement, then you may receive Permanent Partial Disability (“PPD”) benefits.
4. What are Permanent Partial Disability (PPD) Benefits?
Permanent Partial Disability (PPD) Benefits are monetary benefits which are based on an impairment rating given to you by your treating physician or by an Independent Medical Evaluation doctor. Your benefits will be determined based on your percentage of impairment according to the AMA Guides, Fourth Edition.
If you have undergone an Independent Medical Evaluation (IME) and disagree with the impairment rating you received, please contact me now for a free consultation.
5. If the insurance company has denied my benefits, what should I do?
If you disagree with a decision of the Claim Administrator, you have the right to file a written “Protest.” A Protest is a letter written to the Office of Judges that states that you disagree with the Claim Administrator’s decision and that you think that the decision should be reversed. The Protest must be filed with the Office of Judges within 60 days of receipt of the denial.
If you have received a denial, please contact me now for a free consultation.
6. Will I have a trial or hearing in my workers’ compensation claim?
In West Virginia, there are no hearings in Workers’ Compensation cases unless a party requests a hearing. The Workers’ Compensation system is not like the normal legal system where a party goes to court and has a trial with a jury. There is no jury, there is no trial, and there are no hearings unless you request them.
7. How long will it take to get a decision in my Workers’ Compensation claim?
In general, if the Claim Administrator denies the compensability of your case, you may be in for a relatively long battle. Generally, it takes about a year to 18 months from the date you protest a Claim Administrator’s denial to have a decision from the OOJ depending on the issue being litigated.
If you appeal the OOJ’s decision, it usually takes less than 6 months to have a decision by the Board of Review. Finally, if you have to appeal the Board of Review’s decision, it may take 2 years until you receive a decision from the West Virginia Supreme Court.
8. How does my lawyer get paid for my workers’ compensation case?
A workers’ compensation lawyer will not get paid unless the lawyer is successful in obtaining benefits for you. Under West Virginia law, a workers’ compensation lawyer is entitled to a 20% contingency fee. You will not have to pay your lawyer’s fee upfront and the lawyer is not entitled to a fee unless you receive benefits through the attorney’s efforts in your case.
9. Can I sue my employer outside of the workers’ compensation system?
Ordinarily, Workers’ Compensation is the exclusive remedy for employees injured in workplace accidents. However, in certain circumstances (called “deliberate intent”) you may be able to sue your employer outside of the workers’ compensation system if you can prove:
(A) That a specific unsafe working condition existed in the workplace which presented a high degree of risk and a strong probability of serious injury or death;
(B) That the employer, prior to the injury, had actual knowledge of the existence of the specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by the specific unsafe working condition;
(C) That the specific unsafe working condition was a violation of a state or federal safety statute, rule or regulation, whether cited or not, or of a commonly accepted and well-known safety standard within the industry or business of the employer, as demonstrated by competent evidence of written standards or guidelines which reflect a consensus safety standard in the industry or business, which statute, rule, regulation or standard was specifically applicable to the particular work and working condition involved, as contrasted with a statute, rule, regulation or standard generally requiring safe workplaces, equipment or working conditions;
(D) That the employer nevertheless intentionally exposed an employee to the specific unsafe working condition; and
(E) That the employee exposed suffered serious compensable injury or compensable death as a direct and proximate result of the specific unsafe working condition.
If you think you may have a Deliberate Intent case, please contact me immediately to discuss your situation.
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