eNotes: Workers’ Compensation – August 2023 – West Virginia

SIGNIFICANT CASE SUMMARIES

West Virginia Case Summary

Thompson v. Western Construction, Inc.
Intermediate Court of Appeals of West Virginia
No. 23-ICA-26

Decided June 15, 2023

A claimant, despite being terminated, is eligible for a higher compensation rate provided by West Virginia Code §23-4-6(e)(2) because the term “employee” in the statute includes individuals injured while employed, regardless of their employment status at the time of release to return to work.

Background

Claimant sustained an injury while working as a welder for Western Construction. He continued to work for a few weeks after the injury but eventually stopped due to increased pain, reporting the injury to his employer and providing medical records. He was subsequently terminated. Despite being terminated in early 2020, Claimant was not released by his treating physician to return to work until September 2021. The dispute revolves around whether Claimant qualifies as an “employee” under §23-4-6(e)(2) to be eligible for the higher compensation rate, even though he had been terminated before being released to return to work.

The claim administrator ruled that Claimant was not entitled to compensation under a specific provision (West Virginia Code §23-4-6(e)(2)) which provides enhanced compensation for disabilities suffered by workers who are not reinstated in their pre-injury job or a comparable job. The claim administrator had granted Claimant a 7% permanent partial disability award based on a different provision (West Virginia Code §23-4-6(e)(1)), which offers a lower rate of compensation. Claimant argued that he should receive the higher compensation rate as per §23-4-6(e)(2), regardless of whether he was currently employed by his previous employer when he was released to return to work.

Holding

The court ruled that the use of the term “employee” in the statute does not necessarily refer exclusively to current employees but encompasses those who were injured while employed and seek compensation under the statute’s provisions. The court rejected the employer’s attempts to read limitations into the statute that were not explicitly stated by the legislature. The court concluded that Claimant was entitled to the higher compensation rate provided by §23-4-6(e)(2) and reversed the Board’s decision, remanding the case for a reconsideration of compensation consistent with the court’s interpretation.

Takeaway

The Intermediate Court found a much broader definition of the word employee, and it may expand exposure for carriers. This may be corrected by the legislature, and we will continue monitoring for any changes by the legislature.

Questions about this case can be directed to Evan Jenkins, Esq. at (412) 926-1419 or ejenkins@tthlaw.com.