West Virginia Workers’ Compensation Laws

Workers’ comp laws in West Virginia enable employees to obtain the support they need to deal with a job-related sickness or injury. It is not uncommon for workers in the state to experience workplace accidents that require medical attention. For instance, an individual could have a bad fall while on the clock or be exposed to chemicals that cause an illness to manifest years later. 

Statistically, the demand for workers’ compensation seems minuscule. Looking at the state’s fatal work accident data, the 36 recorded workplace deaths from 2021 are the second lowest number tallied since 2012. Of these 36, 10 occurred in transportation incidents, accounting for 38% of fatalities. Slips and falls, resulting in 16% of the total workplace deaths, were also among the deadliest. Meanwhile, violence by humans and animals killed 15% of workers, and contact with objects and equipment caused the deaths of 14%.

Now, while severe injuries might be unlikely in your own workplace, they could be financially devastating when they do happen. Thus, the law requires employers to have the corresponding insurance policies. With that in mind, this article will explain the basics of workers’ comp laws and give a comprehensive overview of the claims process.

West Virginia Workers’ Compensation Insurance Requirements

Who Must Have Workers’ Comp Coverage in West Virginia?

Almost all employers in West Virginia are required by law to be covered by workers’ compensation insurance. One issue is whether or not the relationship between a worker and a business is that of an employer to an employee.

Independent contractors are notably exempt from workers’ compensation insurance requirements and must pursue their own policies. Meanwhile, some types of employers exempted from providing coverage include:

• Domestic service providers.

• Casual employers.

• Employers with five or fewer full-timers on their roster.

• Churches.

• Volunteer rescue squads or volunteer police auxiliary units set up under a government entity or political subdivision.

• Employers of professional athletes.

• Employers that applied for a letter of exemption.

• Employers covered by the Longshore and Harbor Workers’ Act.

Privatization of Insurance

Unlike in other states, such as Washington, private insurance carriers can provide workers’ compensation benefits to businesses in West Virginia because the sector was privatized over two decades ago. At the most basic level, workplace-related incidents are covered, as are the medical costs associated with them. Employer’s liability insurance is also frequently bundled by providers as an added feature.

Special Rules for Certain Sectors

Special rules exist for security guards, private investigators, and those in the construction sector. Employers in construction need to surrender a wage bond to the West Virginia Division of Labor. Meanwhile, those in the private investigation and security business have to secure a surety bond.

Extraterritorial Application of Laws

The government is aware that conflicts of laws might arise when work is extraterritorial or when multiple portions of a project take place in more than one state. When this happens, employers and employees may choose which laws apply to their working relationship.

Suppose an employee's contract allows them to receive benefits from an insurance provider in a different state. In this scenario, their West Virginia employer’s insurance provider may reduce their payout based on the benefits they are already receiving from another state.

Penalties for Noncompliance

While it might be tempting to cheap out on workers’ compensation, failing to obtain coverage may result in an employer becoming personally liable for its workers’ losses. Moreover, there is a fine of $500 for the first offense and up to $25,000 for subsequent violations. The state’s insurance commissioner may also require the submission of employee and insurance records. 

Meanwhile, late or overdue premium payments may result in a 10% penalty. If premiums are not paid, the employer has to cover all employee damages caused by deliberately wrongful or neglectful acts in the workplace. Penalties and overdue premiums are on the employer’s account, and liens may be enforced to ensure payment in a civil action filed by the insurance commissioner versus the employer.

West Virginia Workers’ Compensation Benefits

State law stipulates how people who have sustained personal injuries during work can obtain compensation. The West Virginia Code also lists occupational hazards and diseases covered by workers’ compensation benefits. There is an emphasis on occupational pneumoconiosis, a lung condition caused by breathing in coal dust because the state has many mining towns. 

Nonetheless, the law applies to all workers exposed to a disease not typically found in the general public. According to state legislation, a disease or sickness is compensable if:

• There is a direct causal link between an employee’s work conditions and their disease.

• Exposure to said work conditions is a natural part of their job.

• The hazard the employee was exposed to is not ordinarily faced outside the workplace.

Note that workers’ compensation in West Virginia covers different types of injuries and disabilities, as well as death. There is also a threshold for how severe the losses are, with greater severity leading to more significant benefits.

The medical benefits injured workers are entitled to are mainly to help them return to a physically fit condition. Examples of these are the costs of doctor’s visits and treatments. If they incur a disability, the other benefits available to them are indicated below:

Temporary Partial Rehabilitation Benefits

TPD benefits are for injured workers who are able to return to work during their recovery but with a reduced wage or with limited job responsibilities. The benefit amount is the difference between their pre-injury and post-injury income.

Vocational rehabilitation services are also provided to help with their return to work or the development of new skills for a new type of job.

Temporary Total Disability Benefits

These benefits are for injured employees who are unable to perform their jobs during their recovery. The benefit amount is 66.67% of their average weekly income prior to injury and up to the state's average weekly wage.

Permanent Partial Disability Benefits

PPD benefits are paid to injured workers who have permanently lost a body part or incurred another form of impairment that reduces their earning capacity or job choices. The amount they can obtain is determined by the severity of their impairment and the impact it has on their ability to work.

Permanent Total Disability Benefits

PTD benefits are given to injured individuals who are completely unable to function because of their occupational injury or illness. These benefits, which are typically paid for life, are calculated based on the affected worker’s pre-injury income and the average weekly wage in the state.

How to File a Workers’ Compensation Claim in West Virginia

Filing a workers’ compensation claim in West Virginia involves submitting forms and supporting documents to the relevant private insurance carrier, whose claims administrator will determine how much is due to the claimant. The specific steps will be discussed in detail later.

When Is the Deadline for Workers’ Compensation Claims in West Virginia?

Generally, workers in the state have six months from the date of their injury to file for workers’ compensation benefits. If the claim is based on an occupational disease, the deadline is not six months but three years.

The law also requires them to report their injuries to their employer immediately. “Immediately” in this context means within two working days of the incident, though exceeding this period alone should not be a cause for claim denial.

A Step-By-Step Guide on Filing a Workers’ Compensation Claim in West Virginia

1. Seek Medical Care

Medical attention is vital and should be sought early. The government says that an individual with a work-related emergency must go to the nearest medical facility right away.

Though an injured employee may have limited time to report their workplace injury to their supervisor, their health should come first. As previously stated, late notification is insufficient grounds to deny a claim since a worker may have an urgent condition that requires seeing a doctor before their employer.

However, employer notification delays might make it more difficult for a worker to receive a payout. For instance, the employer’s insurance company could claim that something else happened in those two days that made the injury worse. To prevent this, it's important to document the incident and get statements from eyewitnesses.

2. Report the Injury to the Supervisor

As mentioned above, the employee has to notify their supervisor about their injury. This is because employers have the right to know when they need to report a workplace accident — with all relevant details — to their insurer and the Insurance Commission.

Early notification is a form of due process in case the insurer is accused of negligence down the line; it lets the company prepare for negotiations or the possibility that their insurer will deny the claim and trigger a lawsuit.

3. File a Claim with the Insurer

In West Virginia, a workers’ comp claim is processed by the claim administrator of their employer’s insurance company. The insurer has 15 days to acknowledge a claim’s filing. Upon receipt, it must also launch its own investigation of the incident and determine whether to accept or deny the injured worker’s claim.

During this stage, supporting evidence may be demanded by the insurer. If it accepts the claim, it will determine how much it should pay the employee. Claim approval or denial will be communicated to the worker within 10 days of the end of the 15-day investigation.

4. Choose a Physician from the Insurer’s Network

The insurer may limit the injured worker’s freedom to select a medical provider based on their preferred network. While an out-of-network physician may provide emergency services, the worker can only have follow-up treatments from trusted healthcare companies. 

This is because the insurer has to make sure that treatments are given out by reputable entities. Nevertheless, the worker may still request a doctor from a different network, though the insurer’s approval must be secured.

5. Seek Certification for Temporary Total Disability

The employee may be eligible for temporary total disability if they have missed four or more days of work. In cases like this, the insurer is liable to pay for wage replacement in addition to the cost of medical care.

The disability may even be discovered to be severe or permanent and require unique benefits, as previously enumerated. Moreover, the worker’s employer may request that they undergo medical tests and evaluations to determine their recovery period. Some insurers even assist injured workers in finding transitional positions within the same company. 

6. Receive the Provided Benefits

If the claim is granted, it’s time to take advantage of the benefits provided by the insurance company. The typical coverage extends to physician care and medication, though authorization might be required if the medicine does not come from the provider’s preferred drug list.

What Should One Do If a Workers’ Compensation Claim in West Virginia Has Been Denied?

If an employee’s claim is denied, they must file a protest within 60 days of receiving the insurance company's decision. They can send their objection to the following address:

Workers' Compensation Office of Judges
P.O. Box 2233
Charleston, WV 25328-2233

They must resubmit all evidence and supporting documents to the office. Otherwise, their case will not be supported and they will likely lose their appeal, given that the office will have nothing to examine and base a judgment on. The judge assigned to their case will set deadlines for filing papers and arguing points before the office, and the worker’s cooperation is imperative.

In case the office also denies their claim, another appeal may be filed before the Workers’ Compensation Board of Review. Here, the claimant is not asked to submit new proof. Instead, they must argue that the judges who made the original decision made a mistake in their interpretation of the evidence.

The board is no longer interested in the facts surrounding their case; it will only want to see if the facts were thoroughly considered and if the law was appropriately applied.

It is advisable to hire an attorney at this stage, as the insurance company will likely have a team of lawyers representing them. While self-representation is an option for workers who are comfortable doing so, it is understandably intimidating to face lawyers from an insurer who might have enough resources to invalidate an appeal.

Legal Resources for Injured Workers in West Virginia

Not everyone with a cause of action under workers’ compensation law will have the resources to file a case or defend their cause before the proper administrative bodies. As such, this section aims to help them find the right workers’ compensation attorney for their needs. It also presents a variety of relevant services and resources.

West Virginia Lawyer Referral Service

The West Virginia Lawyer Referral Service is a program for low-income individuals who need the assistance of a legal professional. It enables potential clients to consult volunteer lawyers and links them to pro-bono counsel. The practice areas it deals with include civil matters like workers’ compensation. Note that the program’s initial 30-minute consultation comes with a small fee.

Legal Aid of West Virginia

The Legal Aid of West Virginia has resources covering the fields of Social Security and disability law, which are closely tied to workers’ compensation. It has multiple articles about issues relevant to workers, like traumatic brain injuries, mental health, and Social Security disability payments. The organization prefers to handle civil cases and caters to people struggling to obtain competent legal representation.

Mountain State Justice

Mountain State Justice offers legal services to the low-income residents of West Virginia. The office fights for laborers’ rights to a safe working environment. It has invaluable resources for employees who may be wrongfully targeted or discriminated against for trying to improve their workplace conditions. The organization, whose advocacy extends to healthcare reform, immigration, and civil rights, has been serving the state since 1996.

West Virginia State Bar

The West Virginia State Bar is the professional organization that all lawyers in West Virginia are required to be members of. It runs the West Virginia Lawyer Referral Service and has ties to the American Bar Association’s Free Legal Answers website. To contact the state bar, call 304-553-7220 or its toll-free line at 866-989-8227.

West Virginia Free Legal Answers

West Virginia Free Legal Answers is a free online legal clinic where qualified West Virginians can make inquiries over the web and receive answers from a lawyer. It covers issues related to work, health and disability, and employment rights and is affiliated with the American Bar Association.