In a move akin to the zombie apocalypse, a West Virginia legislator attempts to resurrect dead provisions in legislation filed on February 10, 2014. State Senator Jack Yost, a Democrat from Brooke County, introduced eight bills that would eviscerate the legislative progress made in West Virginia’s workers’ compensation system since 2003.

Highlights of the legislation include the following:

• Re-establishment of rule of liberality requiring all “reasonable inferences” be drawn to a claimant’s benefit due to the remedial nature of workers’ compensation legislation
• Statutorily mandated deference to treating physician and elimination of the current preponderance of the evidence standard of review
• Requiring approval of any diagnostic testing causally related to the injury and any new diagnosis revealed by the diagnostic testing is “automatically granted” if deemed by the treating physician to be related to the compensable injury
• Eliminating the Rule 20 medical management rule where the guidelines differ from the opinion of the treating physician
• Treble damages if treatment denial is reversed
• Insurance Commissioner makes all initial compensability rulings but no corresponding change to allow for employer protests to the compensability rulings
• Lowers PTD threshold to 40% from 50%
• Vocational assessments consider 30 miles the maximum for viable employment from the current rule of 75 miles
• CTS and other disease impairments based on symptoms rather than measureable impairment may be counted in the PTD threshold
• No offsets on TTD payments for wage replacement plans
• PTD benefits payable until death (currently age 70 cutoff)
• No PTD re-assessments after age 60
• Occupational pneumoconiosis coverage extended to out-of-state employment performed at the direction and under the care of the employer rather than current rule where only in-state exposures are considered in the compensability of such claims
• Extension of the statutory presumption in favor of compensability of certain diseases suffered by professional firefighters to volunteer firefighters; also expanding the diseases presumed to be compensable
• Reinstatement of the 5% PPD award for any claimant with a diagnosis of occupational pneumoconiosis without evidence of pulmonary impairment

We are investigating the impetus behind these bills and monitoring the committees in which they are assigned. Senator Yost is the chair of the Labor Committee and vice chair of the Military Committee. He also sits on the Energy, Industry and Mining Committee, the Finance Committee, and Health and Human Resources Committee, among others. On February 17, 2014, the last day to introduce bills in this legislative session, Delegate Phil Diserio, a Democrat from Brooke County, introduced the same bills in the House of Delegates with the addition of HB 4590, which merges the Volunteer Fire Departments Workers’ Compensation Subsidy Program and the Volunteer Fire Department Workers’ Compensation Premium Subsidy Fund in the state agency workers’ compensation programs. In our opinion, the proposed legislation is an attempt to undermine the workers’ compensation reforms that have been enacted since at least 2003 when we had our first significant bout of reforms. For any questions, comments, or concerns, please feel free to contact us.