From: West Virginia Employment Law Letter | 05/01/2021
by Alyssa Sloan, Steptoe & Johnson PLLC
Several states have passed laws addressing the compensability of COVID-19-related workers’ compensation claims. West Virginia hasn’t enacted any specific legislation about whether contracting the coronavirus should qualify as an occupational injury or disease for workers’ comp purposes. On January 19, however, the West Virginia Workers’ Compensation Insurance Commission issued Insurance Bulletin No. 21-01 covering the administration of workers’ comp claims during the pandemic.
The commission issues bulletins when the commissioner (1) renders formal opinions, guidance, or expectations on matters or (2) explains how either new statutes or rules should be implemented or existing laws or regulations should be applied.
In the January 19 bulletin, West Virginia Insurance Commissioner James Dodrill noted any employee may file a claim if (1) the employer is required to be insured against workers’ comp liabilities in the state, and (2) the individual has sustained an occupational injury in the course of and resulting from the covered employment. Further, the term “occupational injury” covers occupational diseases, which likely would include COVID-19, the commissioner added.
Dodrill emphasized the importance of employees’ providing early notification of their virus-related workers’ comp claims. Under state law, employees who sustain an occupational injury must immediately (or as soon thereafter as practical) give written notice to the employer. Generally, they have six months from the date of the occupational injury to file a workers’ comp claim, but the West Virginia Code of State Rules recommends they file the claim as soon as possible after reporting the injury to the employer.
Within five days of receiving notice of an employee’s desire to report an injury or file a workers’ comp claim, employers must report every incident, including occupational disease claims, to its workers’ comp insurer. Then, the insurer must use due diligence to investigate the claim to determine if it’s compensable under the West Virginia Workers’ Compensation Law, according to Dodrill.
Dodrill recognized the COVID-19 pandemic has raised unique questions about filing workers’ comp claims. Therefore, he instructed insurers and self-insured employers to investigate the virus-related claims to determine whether the injury occurred in the course of (and as a result of) the employment, which must include determining the cause and place of the infections.
Notably, employers may not conduct causation investigations or other screenings of employees’ COVID-19 claims before reporting them to their workers’ comp insurers, which will be processing the claim. In other words, you may not conduct your own investigation about the compensability of a possible virus-related workers’ comp claim or instruct your employee that no claim exists or may be filed.
Your workers’ comp insurer must make any decisions about the compensability of a COVID-19-related claim. Dodrill specifically stated, “Employers may not advise employees that they cannot file workers’ compensation claims for COVID-19 and/or threaten to retaliate or discriminate against [those] who do file [such] claims.”
Dodrill’s bulletin also instructed employers and healthcare providers to cooperate with the insurers by providing medical records or other necessary information in a timely manner so the investigations aren’t delayed. He reiterated the virus-related workers’ comp claims shouldn’t be summarily refused, denied, or rejected outright because of the nature of the injury alone, without proper investigation.
Finally, according to Dodrill, the insurer should properly investigate the claims and issue a timely written decision on compensability. The commissioner’s bulletin recognized it isn’t likely every COVID-19 claim will be ruled compensable after an investigation. If an employee disagrees with the decision, however, he may appeal to the commission’s office of judges within 60 days.
Related legislative activity
Again, the West Virginia Legislature hasn’t enacted any specific legislation about the filing of workers’ comp claims for COVID-19 exposures. Lawmakers recently passed a bill, however, limiting reopening businesses’ liability for civil claims filed over an individual’s exposure to the virus.
Under the new law, if an employee seeks workers’ comp benefits for a work-related injury, disease, or death caused by or arising from COVID-19 in the course of and resulting from covered employment, the claim will be the sole and exclusive remedy. The employee may not file a separate “deliberate intent” action. This bill has been sent to Governor Jim Justice for consideration.
Alyssa Sloan is an attorney with Steptoe & Johnson PLLC in Martinsburg, West Virginia. You can reach her at 304-262-3537 or firstname.lastname@example.org.