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W. Va. Worker Doesn’t Meet 50% Threshold for PTD Award

23 Jun, 2023 Frank Ferreri

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Charleston, WV (WorkersCompensation.com) -- The numbers for a West Viriginia worker did not add up for him to secure an award for permanent total disability benefits.

That's because in Murray American Energy, Inc. v. Szalay, No. 21-0570 (W. Va. 06/13/23), the West Virginia Supreme Court found that the worker did not meet a state law threshold that required a 50 percent disability rating.

A worker for a coal company filed a workers' compensation claim for occupational noise-induced hearing loss. The doctor found that the worker had a 21.45 percent impairment due to occupational noise-induced hearing loss. The claims administrator granted the worker a 10.65 permanent partial disability award, which represented the 21.45 percent recommended by the doctor less the 10.8 percent partial disability award previously awarded to the worker.

Later, the worker filed an application for permanent total disabilities benefits, asserting that the PPD awards he received totaled 60.45 percent.

The claims administrator denied the application on the basis that: 1) the worker retired with a regular service pension after 44.7 years of service, thus voluntarily removing himself from the labor market; and 2) the worker had not reached the required 50 percent threshold needed to file for a permanent total disability award.

The worker protested the decision, and the Office of Judges reversed the order, concluding that the worker had met the threshold and that considering the issue of retirement was premature. The Board of Review adopted the Office of Judges' findings.

Workers' Comp 101: In Fitzgerald v. Fitzgerald, 639 S.E.2d 866 (W. Va. 2006), the state's top court found that a PTD award was considered to be wage replacement for the wages the injured employee would have earned but for his work-related injury and not an award for the injured employee's pain and suffering resulting from such work-related injury. Because of that determination, the court held that a workers' lump sum permanent total disability award of $106,402.62 was marital property subject to equitable distribution in his divorce proceedings. 

Following the Board's decision, the worker underwent a functional capacity evaluation, which determined that the worker was "severely limited by low back pain, right hip pain, and poor balance."

The worker saw several more doctors, with the end result being that the Review Board found that the worker did not suffer from a medical impairment of at least 50 percent on a whole-body basis.

The worker's case went before the West Virgina Supreme Court twice, resulting thus: 1) because the worker was receiving old-age benefits, the Board of Review was required to prohibit him from submitting evidence of his alleged permanent total disability after that date; and 2) the worker had received the sum of 60.45% in permanent partial disability awards for being considered for the first permanent total disability threshold.

Eventually, the worker's case ended up back with the Board of Review, which found that the worker had met the first and second thresholds for consideration for a PTD award, prompting another take by the West Virginia Supreme Court.

In West Virginia, once the eligibility threshold has been satisfied, the claimant will be reevaluated for a determination as to whether he meets the whole-person medical impairment threshold by being assessed with at least 50 percent whole-person impairment from all compensable injuries and diseases.

The West Virginia Supreme Court found that the worker didn't meet the threshold.

"The Board of Review’s decision is in clear violation of statutory provisions, and we find that there is insufficient evidence to sustain the Order," the court wrote. "This case is remanded to the Board of Review for entry of an Order finding that [the worker] has not established that he has met the second threshold for further consideration of a permanent total disability award."

Thus, on his third venture before the court, the worker finally came up short in his push for a PTD award.

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    About The Author

    • Frank Ferreri

      Frank Ferreri, M.A., J.D. covers workers' compensation legal issues. He has published books, articles, and other material on multiple areas of employment, insurance, and disability law. Frank received his master's degree from the University of South Florida and juris doctor from the University of Florida Levin College of Law.

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