workers compensation attorney in west virginia

5 Common Reasons Workers’ Compensations Claims Are Denied

Workers’ compensation is a system that is set up to protect workers who sustain an injury or illness that is related to their job. In West Virginia, nearly all employers are required to maintain workers’ comp coverage for their employees. There are some exceptions; such as casual employers with fewer than three employees, agricultural employers with five or fewer workers, churches, employers of domestic services, and a few others.

Workers’ compensation is a no-fault system, which means that qualified employees are supposed to receive benefits through their employer’s policy no matter who was at fault for the injury.  This is supposed to benefit both employees and employers, because in exchange for no-fault compensation, employees are usually unable to file a personal injury lawsuit against their employer.

Workers’ compensation is supposed to provide access to the benefits an injured worker needs without having to go to the trouble of proving negligence against their employer. In theory, this should make it much easier for workers to access these benefits. In practice, unfortunately, it usually does not work out this way.

The employer’s workers’ compensation insurance company makes the initial determination on whether or not a work-related injury is approved or denied. The claims process is unnecessarily complicated and confusing, and insurance companies frequently deny workers’ claims. Sometimes, they might deny a claim for a valid reason, but oftentimes, there is no good reason for the denial at all.

Insurance companies can save untold amounts of money each year by denying workers’ compensation claims, and when they do this, their hope is that the injured worker will just take their word for it that the denial is valid and move on with their lives. And many frustrated workers do just that.

If you have been denied workers’ comp benefits, this is not necessarily the final word. Before you accept what the insurance company is saying, speak with a skilled and knowledgeable workers’ compensation lawyer about your claim. We may be able to help you appeal your claim and get you the benefits you deserve.

Common Reasons for Workers’ Compensation Claim Denials

There are several reasons a workers’ comp claim may be denied, here are five of the most common:

  1. The Injury Did Not Happen at Work

In order to receive workers’ compensation benefits, your injury or illness must result from the duties you perform during the course of your employment. So, one reason a workers’ comp claim is often denied is because the injury did not happen at work, or at least that is what your employer says. There can be a lot of gray area with this type of issue, however. 

For example, let’s say you were clocked out for lunch and your boss gives you money and asks you to go pick up food for you and the rest of your coworkers. While on the way to the restaurant, you are injured in a motor vehicle accident. In this case, benefits might get denied by the insurer because you were “off the clock” at the time of the injury. However, even though you were clocked out, you were still performing work related duties, because you were instructed by your boss to make this trip.

  • The Injury or Illness Resulted from a Preexisting Condition

There might be a question about the origin of your illness or injury. For example, you may say that you suffered a herniated disc in your back after lifting a 100-pound box at work. But the insurance company might say that you already had a back injury before you picked up that box, because you had been going to the chiropractor before that regularly for maintenance adjustments. This is another one of these gray areas where the insurance company may very well come down on the side of denying the claim, even though you may have sufficient medical evidence to show that lifting the box at work caused the herniated disc.

  • The Injury was Not Reported in a Timely Manner

Every state has certain deadlines for reporting a work-related injury. In West Virginia, you are supposed to report your injury to your employer as soon as possible. But as with many other workers’ comp-related issues, things are not always this simple. For example, many injuries occur over an extended period of time; such as repetitive stress injuries and occupational illnesses. For this reason, it may take time for you to discover these injuries and take appropriate actions. But again, insurance companies will be more than happy to deny a claim if they can find a reason to say that you did not report your injury in a timely manner.

  • You Failed to Seek Immediate Medical Treatment for the Injury

Along the same lines as the previous point, maybe you felt pain in your lower back after picking up that 100-pound box, but you decided to try to tough it out – hoping the pain would eventually go away.  But after a few days, you realized that something was seriously wrong, and you needed to get medical help.  In this type of situation, an insurance company might claim that you were faking the injury or that it was not as serious as you said it was because you did not get treated for it right away. They might also question the origin of the injury because you waited so long to get treated, or they might say that you did not do enough to mitigate the extent of your injuries.

  • You Were Intoxicated at the Time of the Injury

Employers have a few legitimate reasons for denying workers’ comp benefits for a work-related injury. One of these is if you were injured while under the influence of alcohol or drugs. That said, employers in West Virginia are not allowed to test employees arbitrarily for drugs and alcohol after every work-related accident. Under OSHA guidelines, an employer is only allowed to perform such tests when there is “a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness.”

Speak with an Experienced Workers’ Compensation Attorney in West Virginia

If you or a loved one has been denied workers’ comp benefits, this is not the time to give up.  Many denials are not legitimate, and it might be possible to successfully appeal your claim.  The appeals process is complex and challenging, however, and you need strong legal counsel by your side to increase your chances of a favorable outcome.

At Bailey, Javins, and Carter L.C., we have stood up for injured workers in West Virginia for almost 50 years. We have successfully taken on giants in some of the most dominant industries in our state, and we have the experience, skills, resources, and dedication to help ensure that our clients are fully and fairly compensated for their injuries.  

Call our office today at (800) 497-0234 or (800) 296-6979 or message us online to schedule a free consultation with a member of our legal team.

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.

Coal Mining Accident Injury Attorney - Bailey Javins & Carter

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.