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McGraw challenges cuts to widows’ benefits

Attorney General Darrell McGraw is challenging the decision by West Virginia’s workers’ compensation provider to strip benefits from survivors of workers killed on the job or from occupational diseases like asbestosis.

McGraw said Sunday that he believes BrickStreet Mutual Insurance Co. does not have legal authority to take the action and that he will consult with his office’s management team and experts in workers’ compensation today.

“We will move to protect these widows’ benefits,” McGraw said. “I agree with people who say the Legislature has not modified the widow’s rights to benefits.”

For years, widows and widowers of workers who died were sent legal notices that promised workers’ comp benefits “until the death or remarriage of the claimant.”

BrickStreet — which replaced the Workers’ Compensation Commission this year as the state’s benefits insurance provider — says legislation passed in 2003 allows it to cut off benefits to widows and widowers when their spouses would have turned 65 years old, if the benefits were originally granted before the law passed.

If those benefits were granted after the 2003 law passed, surviving spouses can keep their benefits until the deceased worker would have reached 70, according to BrickStreet.

The controversy has been going on for about a year, said Edward G. Atkins, a Charleston lawyer who represents injured workers.

“When changes were made to the Workers’ Compensation law in 1995 and 2003, the Legislature did not touch the widow’s claim section,” Atkins said. “Now, BrickStreet is basically saying, ‘We are going to interpret these legislative changes as meaning the widow’s section was changed, as well.’ I don’t agree with that at all.”

At the very least, BrickStreet is jumping the gun, according to Atkins.

“If BrickStreet wanted to test the process, they should be willing to test their theory without cutting people off,” he said on Sunday. “There were no changes made in the statute.”

Today, the dispute is before the Workers’ Compensation Board of Review, which will hear arguments in a case involving Sherry Grubb in May.

Grubb, whose husband died from asbestosis, had her benefits upheld by a ruling from Workers’ Comp’s Office of Judges. But agency officials appealed that favorable ruling to the Board of Review.

“The Office of Judges made the determination that the policy of BrickStreet on this matter was not according to state law,” Atkins said. “There was also an appeal to the Supreme Court, which said the Board of Review should decide this issue first.”

Atkins represents a widow who recently was notified that her benefits will be cut off in the near future.

McGraw believes there is “a moral deficit running through this debate,” he said.

“Every major religion admonishes us to be protective of widows, whether it is Christianity, Islam, Hindu, Shintoism or Taoism,” he said. “It is morally appalling when a government-related agency sets out to test whether or not they have the right to terminate widows from compensation benefits.

“It raises a major constitutional question when anyone tries to modify benefits after the death of a person whose spouse was promised those benefits,” McGraw said. “The United States and West Virginia constitutions forbid the retroactive abrogation of contracts.”


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