report yesterday by’s Liz Carey is a reminder that fighting for your rights in the world of workers’ compensation can be a lengthy and expensive process. In this case, it was an employer fighting for their right not to be saddled with benefit obligations that were no longer legally theirs. And while the end result was positive for the employer, it came at a cost.

We don’t spend a lot of time talking about employer rights. Perhaps we should. In a system where critics (including yours truly) spend an inordinate amount of energy clamoring for balance and better outcomes, we need to recognize that those outcomes need to be fair and just for all parties. Employers ought not be “on the hook” for everything that is thrown before them. In the case Ms. Carey reports on, that means it should not take a trip to a states Supreme Court just to determine that a termination was “for cause.”

In that case, the West Virginia Supreme Court upheld a decision denying a worker temporary disability benefits. The worker had been injured on the job, received medical treatment and was awarded temporary total disability benefits. Those benefits terminated on the day he returned to work with restrictions. That day was September 14, 2017.

Two weeks later he was terminated for violating the company’s attendance policy.

He then filed a claim for temporary total disability benefits from Sept. 29 through October 27. This filing was associated with another doctor visit and a complaint of continued pain in the injury area. The claims administrator denied the request and closed the file, based on the workers’ termination from the company. An appeal was filed, and the West Virginia Office of Judges found in favor of the worker, saying that the claims administrator should not have closed the claim. They reinstated temporary total disability. 

The employer appealed, and the West Virginia Supreme Court determined that the employee did indeed violate attendance policies, and that he was terminated for cause. They found that, since he had been let go for legitimate purposes, there were no wages to be replaced, and the employee was therefore not entitled to continuing benefits.

So, here’s the thing. This was not any precedent setting case that changed the law of the state. It didn’t require serious introspection and reflection regarding some statutory clause that was inadvertently causing harm to stakeholders. No, this was merely a decision that applied existing law to a case that had been brought to the highest level of the state. The justices of that court cited the statutory language of West Virginia Code 23-4-7 (a)(e), which states in part, “Under no circumstances shall a claimant be entitled to receive temporary total disability benefits either beyond the date the claimant is released to return to work or beyond the date he or she actually returns to work.

Since all physicians involved had approved the employee for a return to work, it simply fell to a determination on whether his termination was justified or not. 

Not every case that reaches a Supreme Court involves precedent setting decisions. Many, if not most cases around the country generally require interpretation of existing law rather than the constitutionality of particular statutes or legislation. These are not uncommon circumstances. It is just, in my view, unfortunate in this case that a better mechanism was not in place to make a proper determination earlier in the process. When you boil this case down to its very essence, an employer had to invest a great deal of time and money getting the highest court in their state to determine whether they had fired a guy for legitimate reasons. 

This employer probably spent more in the effort to protect their rights than they would have simply paying temporary benefits. It is a reminder for all of us that sometimes, no matter which side of the aisle you are on, obtaining justice in workers’ comp is anything but cheap.


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