Va. man says Workers' Comp obligated to pay him benefits

CHARLESTON – A Virginia man claims the West Virginia Workers' Compensation Commission is obligated to pay him permanent total disability benefits after a 1998 work accident.

Jerry A. Hoops lives in Tazewell County, Va., which borders Mercer County, W.Va. The two counties are home to the sister cities of Bluefield, Va., and Bluefield, W.Va.

In his lawsuit, filed last month in Kanawha Circuit Court, Hoops says he was injured on July 9, 1998, in a work-related accident in West Virginia. He filed an application for Workers' Comp benefits, and the claim was accepted as compensable on July 30, 1998. He was paid temporary total and partial permanent benefits and received medical benefits.

In the suit, filed by Tazewell attorney William B. Talty, Hoops says he filed an application for permanent total disability on Oct. 23, 1999. That claim was denied in an order dated Feb. 27, 2002. Hoops then protested to Workers' Comp's Office of Judges. On Dec. 23, 2003, a decision by that office granted Hoops permanent total disability (PTD) benefits. Hoops says he was paid those benefits until Sept. 28, 2005.

Meanwhile, Workers' Comp had appealed the Office of Judges' decision to its Board of Review. An April 6, 2005, order from the board had remanded Hoops' claim.

On Aug. 29, 2005, the Office of Judges again awarded Hoops the PTD benefits, and Workers' Comp appealed that decision.

The suit goes on to say that on Oct. 27, 2005, the Office of Judges issued a decision reconsidering its April and August decisions. The office determined it had not followed the Board of Review's order issued April 6 in issuing those two decisions and further determined both were null and void.

The decision further said that the claim should be assigned to an administrative law judge to proceed with issuing a decision affirming, reversing or modifying the Dec. 23, 2003, decision as directed by the Board of Review. The Office of Judges hadn't issued that decision as of the suit's filing date. Also, Workers' Comp has appealed the Office of Judges' Oct.27, 2005, order to the Board of Review.

Also, Hoops says he submitted a copy of Office of Judges' Oct. 27 order to the Board of Review and asked the board to dismiss Workers' Comp's appeal to the Office of Judges' decision of Aug.29 as moot.

On Nov. 8, the Board of Review issued an order dismissing the appeal as moot. On Dec. 8, Workers' Comp petitioned the Board of Review to reconsider that order. On Dec. 13, BOR issued order denying that request. That day, the board also issued another order which dismissed Workers' Comp's appeal to the Office of Judges order of Oct. 27 on grounds that it was interlocutory in nature and not subject to appeal.

Hoops says that the only written notice by Workers' Comp to him was a Sept. 27, 2005, letter, which states that the appeal had been filed to the Office of Judges' order of Aug. 29, 2005, and that Workers' Comp would not be implementing that order until the appeal is resolved by the Board of Review.

On Dec. 1, Hoops' attorney Talty brought to attention of Workers' Comp that the Board of Review had resolved this matter by dismissing the commission's appeal to the Office of Judges order of Aug. 29. Counsel requested Workers' Comp to state its position in regard to payment of PTD benefit to Hoops in light of the Board of Review's action.

Talty was told by Joan Abbott, Workers' Comp's district manager in charge of the Commission's PTD Unit, that she could not respond on advice of counsel.

The suit says that on Dec. 6, Mr. Stuart (Workers' Comp counsel) responded and said the commission would respond within five business days. On Dec. 8, Workers' Comp filed its petition to the Board of Review which was denied. As of the suit's filing date, Hoops had received no response from Workers' Comp or counsel since the Dec. 6 e-mail.

In the suit, Hoops claims he is entitled to PTD benefits pursuant to the Office of Judges' decision issued Dec. 23, 2003, and the failure or refusal of the Commission to do so violates a clear legal right of his with which Workers' Comp and its employees are obligated to comply.

Hoops claims he will suffer irreparable harm as a result of Workers' Comp's refusal to comply with the Dec. 23, 2003, decision granting him PTD benefits. He says he has been deprived of $1,975 per month in PTD benefits.

"Those benefits are essential to his ability to pay his mortgage and car payments and to obtain prescription medications among other essentials," the suit states.

Hoops seeks to have the court declare the Office of Judges' order of Dec. 23, 2003, is of full force and effect and that Workers' Comp has a clear legal duty to comply with that order by paying PTD benefits. He also seeks attorney fees and court costs.

At the start of the year, Workers' Comp made the transition from a state government agency to a private company called BrickStreet Insurance, which offers coverage to West Virginia's 42,000 employers.

BrickStreet is the 15th largest writer of workers' comp coverage in the United States, and the second-largest West Virginia-based insurance company with more than 550 employees and estimated first-year premiums of more than $530 million.

Hoops' case has been assigned to Circuit Judge Tod Kaufman.

Kanawha Circuit Court case number: 05-C-2754