INJURED LOGGER COULD LOSE BENEFITS BACK CRUSHED 5 MONTHS AFTER THE RULES CHANGED

Publication: THE CHARLESTON GAZETTE
Published: 03/02/1998
Page: P1A
Headline: INJURED LOGGER COULD LOSE BENEFITS BACK CRUSHED 5 MONTHS AFTER THE RULES CHANGED
Byline: PAUL J. NYDEN
STAFF WRITER

Everett Wayne Farmer Jr. could be one of the people hurt most by new workers' compensation laws passed in 1995 that made it harder to collect disability benefits.

Farmer worked as a lumberjack for several years before July 3, 1995, the day a tree fell, crushing his back, legs and ankles. Farmer didn't know it the morning he got hurt, but five months earlier the new law had gone into effect. It was impossible for him to collect "permanent total disability" benefits. Farmer said he can never do heavy labor again.

House Speaker Robert Kiss, D-Raleigh, believes he and other lawmakers may have been too restrictive in creating a 50 percent "medical impairment" threshold for PTD benefits. Kiss believes lawmakers might be able to reduce the threshold to 35 percent in the future.

William Harvit, a Charleston lawyer, represents Farmer. Harvit said medical reports reveal Farmer's medical impairment is more than 35 percent.

"But it is entirely possible under this new scheme for you to lose your entire leg and not be permanently disabled," Harvit said last
week.

"Eventually, the workers' compensation review board might take a look at other factors, like vocational and education ackground, to determine what other types of job an individual could do. But if they decide a guy could take tickets at a parking lot, they could say he is not disabled.

"Workers who have given their health for their job should be left with some dignity," he said.

Farmer, now 42, worked since he was 15 years old. He was the oldest boy in his family. He started out working odd jobs, at grocery stores and auto repair shops, then went into the coal mines at Itmann for 12 years.

After 1986, when Consolidation Coal Co. shut his mine down, Farmer found jobs in sawmills and the woods.

Before he got hurt, he liked to race cars and water-ski. He still wears T-shirts with pictures of race cars.

The day he got hurt, Farmer was helping build a power line for U.S. Steel's mining complex on the Wyoming-McDowell county border. He was working for the Glem Co., which owns eight small power companies scattered across Southern West Virginia.

"We were clearing a right of way, 100 foot wide, to set up poles for the power line. The surveyors left this one tree hanging on another one. When I cut my tree, the tree behind it fell and hit me."

His buddies got a stretcher and carried Farmer, still conscious, out of the woods. "You don't think much when you are hurting so ad. I just wanted somebody to do something," he said.

After he reached the Welch-Pineville Road, an ambulance brought him to the hospital in Welch. "But I was tore up too bad, so they brought me up to Raleigh General. After some more tests, they sent me up to Charleston," he said.

Farmer had surgery at Charleston Area Medical Center's General Division later that day.

"That hanging tree broke my back, my legs, my ankle. The doctors put bars and screws in my leg. They'll be there the rest of my life."

A thick scar runs down the length of Farmer's back, opened twice for surgery. "They removed some broken bones from my back. I had metal in there for a year," he said.

The hardest part came after he left the hospital. "He had to learn to walk," said his wife, Dolly. "The people at the hospital had to teach me how to take care of him.

"After I drove him back home to Mullens, he had blood all over his back. He was soaking wet with blood. He had a drain tube in him," Dolly remembers.

Today, Farmer is fidgety. He can't sit long in one place. He can't lie flat on his back. He goes to physical therapy in Beckley two or three days a week.

"I can't wear boots, only tennis shoes. I can't wear regular pants with a belt, only sweatpants," he said. "And I can't even bend over to put shoes and socks on."

The Farmers struggle financially, with one daughter getting ready for college and the other one at Marshall University.

Dolly has worked at the same store for the past 21 years. "Where I work, I don't make a lot of money. We depended on his money. This has changed our whole life. We went from active to inactive."

Farmer collects $448 every two weeks in total temporary disability benefits.

When he worked in the woods, he made $8 an hour. He sometimes worked 16 hours a day.

Coal miners, who earn twice what Farmer did when he got hurt, get twice the compensation benefits Farmer gets when they are injured.

"Compensation is something you don't plan for. It happens. I don't care how careful you are, you can still get hurt," he said. "They told me to go to computer school. I graduated from Mullens High School, but I was never very good at book work."

Farmer is afraid he might lose his TTD benefits this year, after he could reach his "maximum medical improvement" from his injuries in the woods.

"Today, I got two grandkids I can't lift or carry. And they are little things," Farmer said. "They can't understand why Pawpaw can't play with them."

A majority of lawmakers felt compelled to change workers' compensation laws in 1995. The fund had a $2.2 billion deficit. Many companies never paid their premiums. And Mountain State workers were awarded PTD benefits at a rate 17 times higher than the national average.

Harvit thinks the changes went too far. "They were supposed to share the burden between business and labor. The new law created an arbitrary and capricious threshold for the most seriously injured workers. It virtually eliminated permanent total disability awards."

Employment Programs Commissioner William Vieweg and other top agency officials "lowered premiums for the most dangerous businesses," Harvit said.

"They refuse to collect millions of dollars in premiums from delinquent companies, primarily coal companies. Then they turn their backs on West Virginia's workers."