COURT GIVES WORKERS VICTORY IN DISABILITY BENEFITS CASE

Publication: THE SUNDAY GAZETTE-MAIL
Published: 03/05/2000
Page: P7B
Headline: COURT GIVES WORKERS VICTORY IN DISABILITY BENEFITS CASE
Byline: PAUL J. NYDEN
pjnyden@wvgazette.com

In a major victory for workers with diseases like Black Lung or asbestosis, the state Supreme Court has ordered the Workers' Compensation Fund to use medical evidence most favorable to those workers, when medical doctors disagree.

Supreme Court Justice Larry Starcher criticized the state's Occupational Pneumoconiosis Board for routinely overstepping its authority in dismissing medical opinions that would award higher benefits to workers.

In an opinion issued Friday, Starcher also blasted the entire Workers' Compensation system. "As per usual, the Office of Judges and the [Workers' Compensation] Appeal Board ignored the law ... and affirmed the entry of an order giving the claimant the lowest percentage of
disability."

Starcher issued a "concurring opinion" to support a unanimous, unsigned court decision awarding pneumoconiosis benefits to George W. Thacker, who worked as a machine operator for Steel of West Virginia Inc. in Huntington for more than 26 years.

The Workers' Compensation Fund itself originally awarded Thacker benefits for a 15 percent medical impairment. Then, the Office of Judges and Appeal Board overturned that award, citing an additional breathing test from a physician hired by Steel of West Virginia.

The high court's Dec. 3 ruling stated: "Disability determinations must be made upon that evidence that is reliable and most favorable to the claimant."

The court also noted: "It is impossible to measure and account for ... variations between test results. When confronted with conflicting medical evidence ... the Division, Office of Judges and Appeal Board may not base a disability determination on evidence that the Occupational Pneumoconiosis Board suggests is the 'most reliable.'"

On Friday, Starcher wrote about the difference between a typical lawsuit and a Workers' Compensation claim. People who file lawsuits must have "a preponderance of the evidence" to prove they were injured or damaged.

"In a Workers' Compensation claim, the claimant must only introduce enough evidence for a reasonable person to say the claimant has an injury, and that it occurred in the course of, and as a result of, the claimants' job."

William Harvit, a Charleston lawyer who represents workers suffering asbestosis and mesothelioma, said: "Judge Starcher is absolutely correct. The Division of Workers' Compensation, the Office of Judges and the Appeal Board are not following well-established law.

"As a result, our Supreme Court is inundated with Workers' Comp appeals, many of which would not exist if the law was followed," Harvit said. "I think the Supreme Court is being overworkedneedlessly on these cases."

In recent years, between 40 percent and 50 percent of all cases before the Supreme Court have been Workers' Compensation appeals.

West Virginia's Workers' Compensation Fund was created in 1913 as a deal, or a "social contract," between labor and business.

Starcher wrote that workers won the right that "limited medical and wage benefits would be quickly paid" whenever they got hurt "as a result of their employment ... regardless of who was at fault for the injury.

"In return, the employer would be relieved of any common-law tort liability to the claimant. That was the 'trade.'"

Today, Workers' Compensation cases often drag on for years. Both employers and employees hire lawyers. Thacker filed his case in 1991, but did not get a final decision until 1999.

"Claimants and employers become embroiled in a costly, time-consuming, bureaucratic game of roulette, fraught with uncertainty," Starcher wrote, "and the courts become clogged with appeals from litigants wanting to take one more turn at spinning the wheel."

Harvit said: "This is not the way the system was supposed to work. It was set up to avoid costs of protracted litigation.

"This is sad. Many people file claims to get compensation and medical benefits, then end up fighting both their employer's attorney and the Workers' Compensation Fund." Harvit said. "Maybe this ruling will help."

To contact staff writer Paul J. Nyden, use e-mail or call 348-5164