What does state law have to say about discrimination in workers’ comp cases?

Recently, we spoke about a lawsuit recently filed by a West Virginia worker who alleged that his employer routinely discriminated against employees who attempted to exercise their right to workers’ compensation. West Virginia law, to be sure, prohibits employers from discriminating in any fashion against present or past employees due to their receipt or attempt to receive workers’ compensation benefits. Here we wanted to take a brief look at what state law says on the matter on two important points: health insurance and termination.

With respect to health insurance, employers are not allowed to cancel the policy, decrease participation on behalf of the employee or his dependents, or decrease the employee’s coverage during the time an employee is receiving workers’ compensation benefits for a temporary disability. That being said, an employee is allowed to change insurance carriers, or reduce or cancel medical coverage, so long as other employees in the same class are treated the same.  

When it comes to termination of an injured employee who is receiving or seeking to receive workers’ compensation benefits, it is simply prohibited. State law specifically prohibits employers from terminating injured employees while they are off work and receiving temporary total disability benefits. The only situation where this would be permissible is when there is a separate dischargeable offense, which generally refers to misconduct unrelated to the injury or absence.  


Proving that you were fired for filing for workers’ compensation

For many people who get hurt at work, filing for workers’ compensation can seem intimidating, if they have reason to believe the boss will fire them for doing so. Firing an employee in retaliation for seeking workers’ comp benefits is illegal in West Virginia, and is considered a form of workplace discrimination.

Still, often it is impossible to prevent this devious practice. Wrongly terminated workers may have to take legal action to get compensation.

A key case from the West Virginia Supreme Court sets out the process of proving wrongful termination under the state’s Workers’ Compensation Act. In the case, Powell v. Wyoming Cablevision, the plaintiff sued his former employer, accusing it of firing him after he hurt his foot on the job and filed for temporary total disability benefits.

In its ruling, the court laid out the framework for establishing a retaliatory firing claim strong enough to give the plaintiff his or her day in court. First, the plaintiff must show he or she sustained a workplace injury. Second, the plaintiff must file for workers’ compensation. Finally, the plaintiff must show that this filing was “a significant factor in the employer’s decision to discharge.”

If the plaintiff has enough evidence of these three factors to make a prima facie claim, the burden of proof shifts to the employer, which now must prove that it did not fire the plaintiff in retaliation for filing for workers’ comp. Instead, the employer must “prove a legitimate, nonpretextual and nonretaliatory reason” for firing the plaintiff.

Determining what your former employer’s management was thinking when they fired you can be difficult, but an experienced attorney knows where to look for evidence.

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MSHA says mining injuries and deaths were at a record low in 2012

We have been reporting a number of stories about the rash of coal mining accidents that have plagued the industry in the early part of this year. Several fatal mine accidents occurred in rapid succession in West Virginia mines in February. The string of tragic accidents came after what mine safety officials say was a record low year for mine accidents in 2012.

The Mine Safety and Health Administration announced Monday preliminary findings on the rate of mine injuries and deaths in the mining industry in 2012. The agency says that the injury and death rate attributable to coal mining accidents reached record low numbers last year. The data reportedly is still being identified as preliminary numbers.

In technical statistical form, the agency says that the death rate in mining accidents in 2012 was .0107 deaths per 200,000 hours worked. The injury rate from mine accidents last year was 2.56 per 200,000 hours worked. The agency says that rates reached record low numbers. However, the rates are obviously not at zero-meaning that miners suffered injuries and other died in mining accident. Nineteen workers nationwide were killed in coal mining accidents, while 35 miners in the broader mining industry lost their lives on the job in 2012.

An assistant secretary of labor for mine safety acknowledges that the rates have not reached zero, saying, “While one death is too many, and there are still improvements needed to reduce injuries, it is important to take a moment and acknowledge progress towards those goals,” according to the State Journal.

The safety data must be taken in light of production and other factors. Officials say that the number of mines in operation and coal production levels decreased somewhat between 2011 and 2012. But, mine officials also say that the number of people working in coal mines in 2012 was at the highest level in 18 years.

black lung disease claim

Mesothelioma can strike years after workplace asbestos exposure

A rare but deadly form of cancer can strike anyone who has ever been exposed to asbestos. In the U.S., asbestos was once used in many industries due to its durability and resistance to heat, fire, chemicals and electricity.

Today, we recognize the danger of asbestos, but for many people in West Virginia, the damage has already been done. Mesothelioma, the cancer caused by inhaling asbestos particles, can appear years or decades after the victim was exposed.

It attacks the mesothlium, which is a tissue that lines organs like the lungs and heart. Mesothelioma forms tumors in the mesothlium, usually starting in the lungs. If the victim has the malignant form of mesothelioma, the disease then spreads to other organs in his or her body.

According to the National Institutes of Health, mesothelomia’s symptoms are similar to those caused by lung cancer. They include:

  • Breathing problems
  • Pain under the rib cage
  • Pain, lumps or swelling in the abdomen
  • Unexplained weight loss

Many patients do not get diagnosed until the disease is in an advanced stage, complicating treatment. Options include surgery, radiation, chemotherapy or some combination of these.

Because there is commonly a years-long gap between asbestos exposure and falling ill, proving which employer is responsible for this terrible cancer to develop can be difficult. But victims should not have to bear the burden of paying for treatment on their own. An experienced attorney can help victims weigh their legal options and get compensation, so they can focus on recovering their health.

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How OSHA tries to prevent construction site accidents

Because construction work is so potentially dangerous, the Occupational Safety and Health Administration enforces several safety regulations at construction sites. These regulations can be roughly divided into construction worker rights and obligations OSHA places on contractors and similar employers to provide a reasonably safe workplace.

Employee Rights

Among the rights construction workers enjoy under federal law are:

  • The right to review copies of the appropriate standards, rules, regulations etc. that are provided by the employer.
  • Access to relevant employee exposure and medical records.
  • The ability to request an inspection from the OSHA area director if the worker believes there are violations or hazardous conditions, and have an authorized employee accompany the inspector.
  • Freedom from discrimination or retaliation from their employer after filing a complaint with OSHA.

Employer Obligations

  • Provide a workplace free of recognized hazards.
  • Provide employees with safe tools and equipment.
  • Give workers safety training in a language the workers understand.
  • Inform workers that their medical and exposure records are available, and the location of those records, when they begin employment and at least once a year afterward.
  • Also, inform employees of OSHA safety and health standards that apply to their particular workplace.

These regulations are intended to keep construction sites in West Virginia as safe as reasonably possible. Nevertheless, accidents still occur and construction workers get seriously hurt. It can take months or years to recover from a construction injury. Some victims never fully recover. Even worse, some die from their injuries.

Workers’ compensation can help, but time is of the essence for victims. An attorney can help, especially if your initial application is denied.