WEST VIRGINIA MESOTHELIOMA LAWYERS HELPING INJURED WORKERS & FAMILIES

Occupation Disease Claims

West Virginia Association for Justice Seminar
Changes to Occupation Disease Claims

By William K. Schwartz

In West Virginia workers are entitled to medical treatment for any occupationally caused injury. There has been controversy surrounding the nature and adequacy of the treatment offered workers and compensation claimants. Also, there has been ongoing pressure over the years to expand employer control over medical treatment. The 1995 legislation on workers compensation endorsed the use of final settlement in all claims for all purposes EXCEPT medical treatment. In addition the Commissioner, rather than an administrative law judge, was charged with review of any settlement to determine that it is fair and reasonable. See, Assessing Fairness in Workers Compensation Reform, Emily A. Spieler, 98 W.Va. L. Rev. 23 (1995).

West Virginia Code §23-5-7 on Compromise and Settlement provides: “With the exception of medical benefits for non-orthopedic occupational disease claims, the claimant, the employer and workers’ compensation commission, other private insurance carriers and self-insured employers, whichever is applicable, may negotiate a final settlement of any and all issues in a claim wherever the claim is in the administrative or appellate processes. It also provides that “any settlement agreement may provide for a lump-sum payment or a structured payment plan, or any combination thereof, or any other basis as the parties may agree”. This means that an employer could settle not only hearing loss cases, but also asbestosis or even cancer cases for lump sums, but not medical benefits. That has now expanded to include medical treatment.

West Virginia Code §23-5-7 on Compromise and Settlement will provide in June 2015 the following: The claimant, the employer and the Workers’ Compensation Commission, the successor to the commission, other private insurance carriers and self-insured employers, whichever is applicable, may negotiate a final settlement of any and all issues in a claim wherever the claim is in the administrative or appellate processes: Provided, That in the settlement of medical benefits for non-orthopedic occupational disease claims, the claimant shall be represented by counsel.

The modification to the law now allows an employee to settle for a lump sum a claim for medical benefits. The poor social policy of this amendment was raised by several people and legislators. A worker with a lung disease may settle future benefits for medical treatment and need extensive medical treatment, such as a lung transplant, without coverage. There are also questions regarding the effects on private insurance and Medicare for such a settlement. The compromise that the Senate Judiciary approved was that legal counsel for the employee is required to enter into such a settlement. It also provides that the Insurance Commissioner may void an unconscionable settlement agreement with an unrepresented injured worker.

The counsel requirement places an important burden on any attorney counseling a worker considering a settlement of medical benefits. Some workers may see this as a good thing as there is no more waiting for approval and they get a lump sum of money. A 40 year old may not see the potential need for medical benefits in the future. That same worker at 60 may need life-saving treatment and not have coverage. Also, the worker may not be aware of potential liens on the settlement. It may even require advance approval from Medicare. A worker may lose private insurance coverage or be precluded from coverage for future medical treatment depending on the private insurance policy. The above is not meant to be an exhaustive list of considerations and a lawyer advising any worker on settling a claim for medical benefits needs to be aware of all potential ramifications on his client before advising on whether to settle or not.

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