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By Paul J. Nyden
STAFF WRITEREvery month, the West Virginia Workers' Compensation Performance Council meets. Its nine members make decisions affecting every business owner and working person in the state.
Business lawyers and lobbyists pack the room. A couple of union leaders usually attend. Discussions often go on for hours. They often get tedious, technical and statistical.
"All they talk about is money," said Roy Smith, a former West Virginia Labor Commissioner. "Are injured workers being taken care of?
"The first question always is, 'How much is this going to cost?' I don't feel the compassion, or hear the compassion," said Smith, now secretary-treasurer of the Building and Construction Trades Council.
The Legislature created the Performance Council in 1993 to review and to approve all new premium rates and new regulations. The chairman of the council is the Employment Programs commissioner. The council has four business and four labor representatives appointed to staggered four-year terms by the governor.
Labor leaders still fume about the 1995 law that makes it harder for injured workers to get compensation benefits.
Stuart Calwell, a Charleston lawyer whose firm often represents injured workers, said, "Any undertaking by humans will bring injury. It's a cost of mechanized production. An injured class is created.
"To have a just society, you have to compensate the injured class. It cost their health and well-being to create products we all consume. Business simply doesn't want to pay for the full cost of production."
Just before the 1995 law took effect, Workers' Compensation granted permanent total disability awards to 32 of the last 64 workers who applied for them.
Then, during the first six months of 1996, after the new law took effect, four of 101 injured workers who applied for PTD benefits got them. The approval rate plummeted from 50 percent to 4 percent.
Before the 1995 law, Workers' Comp granted 123 permanent total disability awards for every 100,000 working West Virginians.
Under the new rules, the fund granted 5.8 PTD awards for every 100,000 workers. The national average was of seven awards for every 100,000 workers.
Art Cohen, an Ernst & Young actuary, said in May that West Virginia plunged from granting the "highest rate of PTD awards in the nation" to being "a little more restrictive than most other states."
Two recent court rulings postponed the impact of the new law, temporarily, by requiring Workers' Compensation to use the pre-1995 law to act on more than 2,300 claims injured workers filed immediately after the new law passed.
But Cohen's analysis, conducted before those recent court rulings, is a good predictor of what will happen to workers who applied for permanent total disability awards after May 11, 1995. (So far, there are 67 of these: two were granted and 41 denied. The others are pending.)
At the same time, West Virginia jobs tend to be more dangerous than jobs in other states: coal mining, logging, steelmaking, chemical manufacturing.
A 1989 National Institute for Occupational Safety and Health study found West Virginia had the nation's fifth highest rate of fatal accidents between 1980 and 1985: 17.2 deaths for every 100,000 workers, Nationally, the average was 7.9.
A 1997 American Federation of Labor study revealed that things improved by 1995. That year, West Virginia had the nation's 10th highest rate of fatal accidents, 8.6 deaths for every 100,000 workers, compared to a national rate of 5 deaths.
Calwell and critics of the new law charge that it is nearly impossible for workers to reach the required 50 percent impairment level, using American Medical Association standards. The AMA itself believes its impairment standards should not be used to determine whether a worker is disabled.
"You can have a broken back, with a loss of motor function, sensation and muscle control in your leg, and still only have a 25 percent impairment," Calwell said.
"Or you could have a broken back, enough motor function to shuffle along, with a loss of bladder control and have only 20 percent impairment.
"These people, with broken backs, who in some cases can't walk, are the ones punished by this new law," Calwell said.
House Speaker Robert Kiss, D-Raleigh, was a main backer of the 1995 bill.
Last week, Kiss said, "Recent fiscal data from Workers' Compensation appears to indicate that benefit cuts may have gone further than needed. The savings may be greater than anticipated.
"There is not yet a sufficient database of statistical information," Kiss said. "Maybe we should take the threshhold back to 40 percent or whatever."
Kiss said he will ask for a legislative study to examine the impact of the 1995 bill.
Meanwhile, the increase in appeals because of the 1995 law is creating more of a nightmare in the process.
When Workers' Compensation makes a decision to approve or deny a claim, an injured worker or an employer can appeal to the Office of Judges.
Robert Smith, who heads the Office of Judges, said, "Since 1995, we have seen a huge increase in protests, both from claimants and from employers. Most people expected a reduction."
During the last half of 1995, Smith got 1,150 appeals a month. Today, he gets 1,800 a month. Last year, Smith's office issued 20,000 decisions.
After the Office of Judges issues a decision, either side may appeal again to the three-member Workers' Compensation Appeal Board.
Earlier this year, Gov. Underwood named three new members to the Appeal Board, making it more pro-employer than it was under former Gov. Caperton. Mike Shaw, a Point Pleasant lawyer, is chairman of the board.
"Claimants will always appeal a denial," Smith said. "But now, employers are more likely to appeal, because the Appeal Board is reversing a greater number of cases.
"If you think you can win, you are going to appeal. I think you will see a whole lot more appeals," Smith said. "When another administration comes in, whether it a Republican or Democrat, you will see another change. This discourages stability."
Finally, either side can appeal to the state Supreme Court.
Supreme Court Chief Justice Margaret Workman said about 3,000 Workers' Compensation cases get appealed to the high court every year. The court accepts between 25 percent and 30 percent of them for full review.
"We have so many Workers' Compensation appeals that, together with the rest of our work, I worry they don't get the quality of review they ought to have," Workman said.
"There is only so much time in a day. Justice delayed is justice denied, especially in these types of claims. When you have people who are injured, they and their employers, should have a fairly quick resolution of the issues."
Tomorrow: Injured workers face legal hurdles.
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