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Charleston WV Personal Injury Law Blog

Proving a workers’ compensation retaliation claim

In our last post, we began speaking about a workers’ compensation retaliation case recently filed in Putnam County. As we noted last time, West Virginia law prohibits employers from subjecting an injured worker to adverse action for exercising their workers’ compensation rights. Proving these claims is what we’ll speak about here.

Establishing and maintaining a workers’ compensation retaliation case is not necessarily an easy task. West Virginia case law says that an injured worker must establish four things: (1) that the injury was suffered while the employee was engaging in work-related activities; (2) that the employee filed a workers’ compensation claim or that workers’ compensation proceedings had begun; (3) that the employer discriminated against the worker in some way; and (4) the workers’ compensation filing was a significant factor behind the employer’s discriminatory action against the employee. 

Employee fired twice in retaliation for workers’ compensation claim

One of the points we try to convey to readers of this blog is that employers and insurance carriers don’t always cooperate in the workers’ compensation claims process. In some cases, injured workers run into problems when their claim is approved or denied. Sometimes the problems occur after approval of a claim. In other cases, the problems start when the claim is first filed. This can happen in cases of retaliation.

By retaliation, we are referring to cases where an employer subjects an injured worker to adverse treatment because he or she attempted to exercise his or her workers’ compensation rights. This is what allegedly happened to a West Virginia man who filed a wrongful termination lawsuit against International Fiber Corporation in Putnam County last month. 

Lobbyists request truck safety regulations for crash-avoidance technology

With hundreds of serious truck accidents continuing to occur every year and the increasing prevalence of crash-avoidance technology available to consumers, more safety advocates are beginning to call on federal regulators to increase safety related safety regulations for the trucking industry. As readers know, crash-avoidance technology encompasses a variety of possible features, such as automatic braking, stability control and adaptive headlights.

At this point, multiple lobbies have joined together to urge the National Highway Traffic Safety Administration to establish rules requiring forward collision avoidance and mitigation braking for all trucks and busses at or above 10,000 pounds. It is claimed that the technology would significantly reduce truck accidents. 

Oil transport accidents raise issue of liability for injury of potential victims

Commercial vehicle operations can be dangerous and can put lives at risk. This is particularly the case with commercial vehicles carrying volatile substances like crude oil. If you doubt this, consider the recent derailment of multiple train cars in West Virginia, which accident resulted in a massive explosion just off a tributary of the Kanawha River.

Transferring crude oil by pipeline poses risks, but transferring it by train presents its own risks. Luckily, nobody was harmed either in this accident or in two others like it over the last year. Interestingly, one of the issues with these accidents is that the rail cars involved in each incident met the most recent government safety standards. It will not be surprising, commentators suggest, if these requirements are set even higher. 

What is the appeals process for workers’ compensation decisions in WV?

In our last post, we spoke briefly about a recent Supreme Court decision in favor of a woman who had appealed denial of her workers’ compensation claim. As we noted last time, worker’s compensation claims may be denied on some rather technical grounds, as in that case, or on more substantive grounds having to do with the compensability of the injury itself. Whatever the case may be, injured workers who are facing denial of coverage should not necessarily assume that the denial is appropriate.

When an injured worker is turned away from coverage, it is important for him or her to understand the right to appeal the decision. The process for appealing a workers’ compensation decision begins with protesting decisions made by claims adjustors, private insurance carriers, or employees of self-insured employers responsible for claims management decisions. Appeals of these decisions are directed to the Office of Judges, which resolves these disputes. 

Supreme Court: place of treatment doesn’t matter when it comes to workers’ comp coverage

When a worker is injured on the job, he or she should generally expect to be able to receive compensation for his or her injuries within a reasonable amount of time. Unfortunately, legitimate workers’ compensation claims do not always have the right outcome. In some cases, coverage is inadequate. In other cases, it is denied altogether, sometimes on rather technical grounds.

This was the case with a West Virginia woman who recently received good news when the West Virginia Supreme Court of Appeals ruled that the workers’ compensation board of review wrongfully refused to reimburse her claim for treatment she received in connection with an on-the-job injury. The woman in the case had reportedly been exposed to heavy metals on the job for over 30 years, for which she received a special form of therapy design to flush out heavy toxins from the body, called intravenous chelation therapy. 

When can I sue my employer for workplace injuries?

Under West Virginia law and in other states, workers’ compensation is based upon a compromise between workers and employers. That compromise is generally described as being a promise on the part of employers to provide workers’ compensation benefits for those injured on the job in exchange for workers’ promise to accept limitations on the right to sue their employer for on-the-job injuries.

The “great compromise” of workers’ compensation offers employers the benefit of avoiding the costs and hassle of dealing with a lot of litigation for workplace injuries, and it offers workers greater security in obtaining compensation after a workplace accident. There are some circumstances, though, where an injured worker may pursue damages in personal injury litigation. 

When can I sue my employer for workplace injuries? P.2

In our last post, we began exploring the issue of when an injured worker may sue his or her employer following a workplace injury. As we noted, the general rule is that workers are limited to workers’ compensation benefits, but there is an exception under state law for situations where the workplace accident was deliberately intended by the employer. The deliberate intention exception, in itself very strict, has been interpreted to include situations where employers knew of unsafe workplace conditions or had reason to know of them, but failed to take action, thus deliberately putting workers at risk of injury.

State law provides that the injured employee or the widow, widower, child or dependent of the employee has the ability to sue the employer for damages which exceed the amount they are entitled to receive through workers’ compensation. Earlier this week, though, lawmakers in the House approved of a bill that would limit the circumstances under which such recovery could be made. 

Are punitive damages available in insurance bad faith claims?

In our last post, we gave a brief description of insurance bad faith claims and highlighted the importance of pursuing such claims with the assistance of an experienced attorney. Working with an attorney is important not only to correctly establish a basis for recovery for insurance bad faith, but also to build a strong damages case. Without making a strong case for damages against an unscrupulous insurance company, one is setting oneself up for a less-than-adequate damages award.

The type and extent of damages a plaintiff may win in an insurance bad faith claim depends on whether the claim is pursued under common law or statute. By statute, a plaintiff is able to win increased expenses and costs, as well as increased attorney fees stemming from the insurance company's wrongful treatment of the claim. At common law, reasonable attorneys' fees, as well as damages for net economic loss and inconvenience and aggravation, may be available.

What is an insurance bad faith claim?

We would all like to believe that our insurance companies have our backs, and that they will do right by us when it comes time to paying legitimate claims. The reality is that insurance companies have their own legal and financial interests and these don’t always match up with those of policyholders. When an insurance company refuses to pay a legitimate claim in connection with an auto accident, accident victims need to understand their options for legal action.

Insurance bad faith claims may be filed by either first parties (policyholders) or third party accident victims who are supposed to be covered by another party’s insurance policy. In either case, the basic contention in an insurance bad faith claim is that the insurance company had no reasonable basis to intentionally deny a claim or fail to investigate it.  

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Office Locations in Charleston, Logan and Summersville, West Virginia

Office Locations in Charleston, Logan & Summersville, West Virginia

213 Hale Street | Charleston, WV 25301 | Local: 304-932-4639 | Toll Free: 1-800-889-5851 | E-Mail Us| Map & Directions

116 Stratton Street | Logan, WV 25601 | Local: 304-932-4639 | Toll Free: 1-800-889-5851 | E-Mail Us | Map & Directions

704 Professional Park Drive | Summersville, WV 26651 | Local: 304-461-4733 | Toll Free: 1-800-889-5851 | E-Mail Us | Map & Directions

Fax Number for All Offices: 304-345-0375