What should you do immediately after being injured at work? Bailey Javins & Carter

What Should I do Immediately After Being Injured at Work?

Workplace injuries are more common than most people think. According to the Bureau of Labor Statistics (BLS), there were approximately 2.9 million non-fatal workplace injuries and illnesses in 2016, the most recent year on record. In addition, there were 5190 work-related fatalities, the highest since 2008. Being injured on the job is an unsettling experience, and it often difficult to know what to do next to ensure your injuries are treated and your legal rights are protected.

There are some steps you should take immediately after being injured at work, here are four of the most important:

Obtain First Aid and Any Other Necessary Medical Treatment

Before anything else, make sure your injury is treated and you have the medical assistance you need. See a doctor as soon as you can after the incident. Some injuries are not apparent right away, and they may take time to manifest themselves. This is why it is important to have an examination as soon as possible, so you will know the extent of your injuries and ensure they are properly addressed. In West Virginia, you are allowed to select your own doctor for Workers’ Compensation purposes, at least for the initial visit. Your doctor will determine if you are unable to work, your treatment plan, and when you can return to work.

Notify Your Supervisor of Your Injury

You should report your injury in writing to your employer as soon as it is convenient. In West Virginia, you have six months from the date of your injury to file a Workers’ Compensation claim. If you were exposed to a hazardous worksite condition and/or your doctor informs you that you have an occupational illness, you have three years from the date of your last exposure or from the date you were informed of your illness to file a Workers’ Comp claim.

Find Out if Your Employer is Covered by West Virginia Workers’ Compensation Laws

Most employers in West Virginia are required to maintain Workers’ Compensation insurance for their employees. There are some exceptions, however. First of all, sole proprietors, partners, LLC members, and corporate officers are usually included in a Workers’ comp policy, but they can elect to be excluded. Secondly, there are certain types of employers that are exempt from the requirement to provide coverage. These include:

  • Employers in the agricultural industry who have five or fewer employees;
  • Employers of domestic services;
  • Employers with three or fewer employees who have temporary casual employees that work no more than 10 days per calendar quarter;
  • Employers who are churches and certain non-profit organizations;
  • Employers who are engaged in professional sports. However, coverage must be provided for certain employees who are not professional athletes and work only on the business side.

Though these types of employers are not required to carry Workers’ Compensation insurance for their exempt employees, many of them still do. Be sure to check with your employer to be certain.

There may also be a question about whether or not you are considered an employee or an independent contractor. Non-exempt employees are covered by the West Virginia Workers’ Compensation statute, while independent contractors are not. However, just because an employer says you are an independent contractor does not necessarily mean this is the case. It all comes down to the employer’s “right to control” or supervise the work you do. If that right to control exists, you are likely to be classified as an employee.

Speak with an Experienced West Virginia Personal Injury Attorney

Once you have determined whether or not you are covered (or likely to be covered) by Workers’ Compensation, it is best to speak with a seasoned personal injury lawyer with extensive experience handling Workers’ Comp claims. There are several reasons why it is a good idea to speak with an attorney:

  1. The Workers’ Compensation claims process is complex and confusing, and many employees are wrongfully denied benefits often because of technicalities. This is especially true if the employee is not working with an attorney. By having strong legal counsel by your side, you can help ensure that your claim is processed smoothly and successfully, and that you receive maximum compensation for your injuries.
  2. Your injury may not be covered by Workers’ Compensation because you are an exempt employee or independent contractor. Or your injury may have resulted from the negligence or reckless actions of a third-party other than you or your employer. In any of these scenarios, you may have a strong basis for a personal injury action against the party responsible for your injuries.
  3. Although West Virginia employers are generally immune from civil liability for work-related injuries that are covered by Workers’ Comp insurance, state law provides for an exception if it can be shown that the employer acted with “deliberate intent” to place the employee at risk for injury. In such cases, an employee may be able to sue the employer for damages above and beyond what is paid out by Workers’ Compensation.
Black Lung Disease Claims - Bailey Javins & Carter

West Virginia Supreme Court Rejects Coal Workers’ Black Lung Disease Claims

Coal workers with black lung disease might be among the first casualties of the recent chaos at the West Virginia Supreme Court. Last year, a TV investigative report uncovered lavish spending on the private offices of the justices, to the tune of $3.9 million. Examples included a $32,000 sofa, $1,700 throw pillows, and $16,000 for eight office chairs. This blew up into a major scandal that resulted in the impeachment of the entire Supreme Court.

In the aftermath of this chaos, most of the justices are brand new. These justices issued a ruling last week that appears to go against previous legal precedent and could make it more difficult for coal workers to access black lung disease benefits. The newly assembled Supreme Court upheld the decision of the Workers’ Compensation Board of Review rejecting benefits for four coal workers with Occupational Pneumoconiosis (OP), also known as black lung disease.

At issue in this case was whether or not three coal miners and one factory worker would be allowed to be examined by the Occupational Pneumoconiosis (OP) Board for the purposes of determining if they would qualify for benefits. In a 4-2 ruling, the court rejected the claims saying that they did not meet the statutory filing deadlines for occupational pneumoconiosis benefits. These deadlines are:

  • Three years from the last day of 60 continuous days of exposure to the hazardous substances known to cause occupational pneumoconiosis; or
  • Three years after being diagnosed with an impairment due to this condition.

Justice Tim Armstead, in writing for the majority, said, “It is undisputed that none of the four claimants filed an application or claim within three years of their date of last exposure.” Justice Armstead went on to say that none of the claims set forth a diagnosed impairment, and that the claims were “properly rejected by the Board of Review.”

Chief Justice Margaret Workman vehemently disagreed with the Court’s decision in a scathing dissent. Chief Justice Workman said of the majority:

By utilizing an inapplicable statute of limitations to bar even the filing of a claim, today’s opinion is an extreme departure from the long-standing rule of law firmly established in the management of OP claims. The majority is way too eager to rewrite West Virginia Code §23-4-15(b) (2017) with far-reaching and grotesquely unfair consequences. It demonstrates either an ignorance of the law or a callous disregard for those who suffer from OP…

Chief Justice Workman goes on to argue that while there are two separate time limitations on which a claim for benefits can be barred, these limitations have never been applied to deny a claimant an evaluation from the OP Board. Furthermore, an evaluation of the OP Board is necessary to determine if a claimant has a black lung disease-related impairment that would qualify them for benefits. So, to deny a claimant the right to an OP Board evaluation because of the lack of a diagnosed impairment seems to be a catch-22.

Chief Justice Workman Continues:

A claimant has never been required to bear the burden and expense of having pulmonary function tests performed and evaluated before filing a claim…It is therefore nonsensical to require a claimant to produce evidence of the very thing the OP Board serves to provide before being permitted to present one’s claim to the OP board.

Progressive Nature of Black Lung Disease at Issue

Both the majority and dissenting opinions acknowledged that black lung disease is a progressive condition that can worsen severely over time. However, the majority sided with the Commissioner and the claimants’ employers and their contention that allowing these examinations (outside of the three-year deadline) would “unreasonably burden” the OP Board. In denying the claims, the majority callously dismissed the progressive nature of the disease by stating that the four claimants were “free to file a claim within three years of receiving a diagnosed impairment due to occupational pneumoconiosis.”

Workers Affected by Black Lung Disease need Strong Legal Representation

Black lung disease has been on the rise in recent years. A 2017 NPR investigation identified nearly 2,000 cases across West Virginia, Kentucky, Virginia, Pennsylvania, and Ohio. Sadly, coal workers in West Virginia who may have this condition must now overcome a major barrier to receive the diagnoses needed to obtain benefits. Unless and until the West Virginia Supreme Court reverses this grossly misguided ruling, there are likely to be many more denials of OP Board examinations (based on the precedent set by the ruling).

There are thousands of coal workers in West Virginia that are living with black lung disease. But to obtain the benefits they deserve, they will now have to jump through more legal hoops. If you or a loved one is in this position, it is important to have strong legal counsel by your side aggressively advocating for your rights and interests.

At Bailey, Javins, and Carter, we have over four decades of experience standing up for West Virginia coal workers. We have in-depth knowledge of the state laws regarding black lung disease and related issues miners face, and we have a successful track record securing just compensation on their behalf. Even when court rulings go against state workers, we will continue to fight hard for their rights and put our extensive experience to work to skillfully argue their cases.