West Virginia Record

Sunday, November 17, 2019

Insurers will have eyes on W.Va. Supreme Court

By Steve Korris | Mar 31, 2008

CHARLESTON – Insurers all over America will pay close attention when the West Virginia Supreme Court of Appeals tackles five workers compensation appeals at oral arguments Wednesday.

The decisions of the Justices will determine the competitive climate as West Virginia prepares for conversion to private workers' compensation insurance on July 1.

The Legislature abolished the original Workers' Compensation Commission in 2004, and created a 30-month transition from public to private insurance.

The transition has almost ended. During it a single private company, BrickStreet, holds a monopoly on workers' compensation.

On July 1, any insurer can start competing against BrickStreet.

In two cases before the Justices, insurance commissioner Jane Cline supports employers as a friend of the court.

Employers in those cases seek to declare files inactive after six months without medical service, while employees argue for a five year wait.

"As West Virginia enters the private market era, the Office of Insurance Commissioner believes that insurance companies should be permitted to function with routine operating procedures to which they are accustomed nationwide," Rebecca Roush wrote for Cline.

Cline's office administers about 40,000 workers compensation claims, Roush wrote.

Jane Glauser of Wheeling, representing workers in both cases, argues that Cline's six month regulation conflicts with state law.

Glauser claims that contrary to statute, BrickStreet sent letters advising claimants that they had to reopen their files to receive medical care.

"There is no statutory authority to discontinue medical treatment when a claimant reached maximum medical improvement," Glauser wrote. "The only requirement for the medical care is that it be reasonably required."

In one case, Glauser represents John Lovas, a mechanic at Consolidation Coal's Shoemaker mine. Lovas claims orthopedic injuries.

In the other case, Glauser represents Henry Frazier, who drove an appointment van for Youth Services System. Frazier claims neck strain from a traffic accident.

In a third case before the Justices, Fenton Art Glass of Williamstown challenges a five percent permanent partial disability award to worker Jack Garrison.

The Workers' Compensation Board of Review affirmed the award in 2006, finding that Garrison suffered pneumoconiosis from inhaling dust.

For Fenton Art Glass, Ann Rembrandt of Charleston argues that the Board of Review improperly presumed that Garrison inhaled dangerous dust.

According to Rembrandt, the board shifted the burden of proof from Garrison to Fenton Art Glass to disprove the presumption.

Thomas Maroney of Charleston represents Garrison.

In a fourth case, steel maker SWVA Inc. appeals a Board of Review decision requiring a digital hearing aid for Elmer Adkins Jr.

For SWVA, Toney Stroud of Huntington argues that a standard hearing aid would solve the problem. According to her, digital aids cost six or seven times as much.

Adkins did not file an appeal brief.

In a fifth case, Llewellyn Wilkinson appeals the denial of a claim seeking compensation for depression from a foot injury.

Wilkinson, who worked in a Putnam County school cafeteria, suffered the injury in 1997. Frozen turkeys fell on her foot.

Her attorney, Patrick Jacobs of Charleston, claims Wilkinson is "tired, agitated and aggravated."

Cline opposes the claim. On her behalf, Anna Faulkner argues that Wilkinson showed no sign of depression until undergoing open heart surgery in 2003.

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West Virginia Supreme Court of Appeals