Getting hurt on the job is stressful enough without also having to figure out a legal system. Workers' compensation is a benefit you and your employer paid into, and using it is your right. Here is what actually matters in West Virginia, in the order you need it.
The deadlines, first — because everything else depends on them
Notice to your employer: immediately, or as soon as practicable after the injury. West Virginia law (W. Va. Code § 23-4-1a) requires the injured employee to give the employer written notice of the injury — stating the time, place, nature, and cause of the injury — "immediately on the occurrence of the injury or as soon thereafter as practicable." The statute does not set a fixed number of days, so do not wait: report it the same day if you possibly can, and keep a copy.
Claim application: within six months of the injury. Under W. Va. Code § 23-4-15, the application for benefits must be filed within six months from and after the injury, and "unless filed within the six months period, the right to compensation is forever barred." The statute calls this deadline jurisdictional. One accommodation is written into the same statute: "In case the employee is mentally or physically incapable of filing the application, it may be filed by his or her attorney or by a member of his or her family." So if you are hospitalized, sedated, badly injured, or otherwise unable to handle paperwork, the clock does not simply run out on you — a family member or an attorney can file it for you within the six months.
Protest of a claim decision you disagree with: within 60 days after you receive the decision (W. Va. Code § 23-5-1a). Also jurisdictional. Details below.
What to do first
Get medical treatment. If it is an emergency, go to the nearest medical facility or call 911. Tell the provider it is a work injury.
Report the injury to your employer right away, in writing. Include the time, place, nature, and cause of the injury, and whether you are unable to work. Keep a dated copy.
Find out who the claim administrator is. Ask your employer which workers' compensation insurance carrier covers the business, or whether it is self-insured. If you cannot get an answer, the Offices of the Insurance Commissioner runs an online Coverage Verification System to look up an employer's carrier.
Ask whether your employer uses a managed health care plan for workers' compensation. That answer determines whether you may choose your own doctor (see below).
Calendar the six-month claim-filing deadline. It is separate from — and later than — telling your employer. Giving timely notice does not file your claim.
Who oversees workers' compensation in West Virginia
West Virginia privatized its workers' compensation system; it is not a monopolistic state-fund state. Employers buy coverage from private insurance carriers or qualify as self-insured, and the system is regulated by the West Virginia Offices of the Insurance Commissioner (OIC). Disputed claim decisions are heard by the West Virginia Workers' Compensation Board of Review.
W. Va. Code § 23-2-1 requires "all persons, firms, associations, and corporations regularly employing another person or persons" to carry workers' compensation coverage, including the State, governmental agencies, county boards of education, and political subdivisions. Several categories are not required to carry it (many may elect coverage voluntarily), including:
Employers of domestic services
Agricultural employers with five or fewer full-time employees
"Casual" employers — generally three or fewer employees doing temporary or intermittent work not exceeding ten calendar days in a calendar quarter
Churches
Employers engaged in organized professional sports activities, including trainers and jockeys
Volunteer rescue squads, volunteer police auxiliary units, and volunteer emergency medical services organizations (their paid employees must still be covered)
Taxicab drivers who are independent contractors under the state's worker classification law
Workers eligible for benefits under the federal Longshore and Harbor Workers' Compensation Act
Certain owners, officers, partners, and LLC members may also be excluded from a policy. If you are not sure whether you are covered, ask your employer which carrier covers the business, or contact the OIC.
The six-month filing deadline — and the different clock for occupational disease
For an ordinary work injury, the application for benefits must be filed within six months of the injury or the right to compensation is permanently barred (§ 23-4-15). File it with the claim administrator — the private carrier, the self-insured employer, or the Insurance Commissioner, as applicable. As noted above, § 23-4-15 also provides that if the employee is "mentally or physically incapable of filing the application, it may be filed by his or her attorney or by a member of his or her family" — so serious incapacity does not have to mean a lost claim, but someone still has to get the application in within the six months.
Illnesses caused by workplace exposure over time run on a longer clock under the same statute, and the way that clock is measured matters:
Occupational disease (other than occupational pneumoconiosis): the application must be filed "within three years from and after the day on which the employee was last exposed to the particular occupational hazard involved or within three years from and after the employee's occupational disease was made known to him or her by a physician or which he or she should reasonably have known, whichever last occurs" (§ 23-4-15(c)). Read that carefully: the three years runs from whichever of those events happens last, not from whichever happens first. If your last exposure was years ago but a doctor only recently identified the disease — or you only recently had reason to know of it — the later date is what counts, and an old exposure date does not by itself bar the claim. Because the statute also counts what you "should reasonably have known," do not sit on symptoms once you have reason to connect them to your work.
Occupational pneumoconiosis (including black lung): generally three years from the last day of the last continuous period of 60 days or more of exposure to the hazard, or three years from when a diagnosed impairment due to occupational pneumoconiosis was made known to the employee by a physician (§ 23-4-15(b)). In fatal cases, dependents have a separate, shorter window — generally two years from the employee's death.
If your situation is a gradual illness rather than a single event, do not assume the ordinary six-month injury deadline applies to you — it generally does not. Confirm with the claim administrator or the OIC which clock applies to your circumstances, and file as soon as you can either way.
Who picks your doctor
It depends on whether your employer or its carrier maintains a managed health care plan approved by the Insurance Commissioner (W. Va. Code § 23-4-3):
No managed health care plan: "the claimant may select his or her initial health care provider for treatment of a compensable injury or disease."
Managed health care plan in place: the employer, carrier, or self-insured employer "may require an injured employee to use health care providers authorized by the managed health care plan."
If you want to change providers and a managed plan applies, you must select the new provider through that plan. To go outside the plan, you need written approval from the Insurance Commissioner, the private carrier, or the self-insured employer. Ask your employer, when you report the injury, whether a managed plan applies — and get any change of doctor approved rather than switching on your own.
Wage-replacement benefits
Temporary total disability (TTD) benefits are paid at 66⅔% (two-thirds) of your average weekly wage earnings at the date of injury, subject to a statutory maximum and minimum that are tied to the average weekly wage in West Virginia and therefore change every year. This page will not quote a dollar figure that would go stale — get the current maximum and minimum from the OIC. TTD for a single injury is limited by statute to 104 weeks (§ 23-4-6).
Waiting period (§ 23-4-5): if your disability lasts three days or fewer from the day you leave work, no wage-replacement benefit is awarded. If the disability lasts longer than seven days, an award is allowed for those first three days as well. So a disability of four to seven days generally leaves the first three days unpaid, while a longer disability picks them up. Medical treatment for the allowed conditions is covered regardless of the wage-benefit waiting period.
Permanent disability
If you are left with lasting impairment, permanent partial disability (PPD) is based on a medical impairment rating, with the statute providing four weeks of compensation for each percent of disability (§ 23-4-6). Certain losses — a hand, an arm, an eye, a toe, hearing — carry a fixed statutory percentage under the scheduled-award provisions. Permanent total disability generally requires a threshold showing (at least 50% whole-body medical impairment, or prior awards totaling that much) before the full evaluation proceeds, and its duration is governed by statutory rules tied to retirement age.
Because the number turns on your impairment rating, medical evidence, and wage history, ask the claim administrator to explain how your rating and award were calculated — and remember that a decision you disagree with can be protested (below).
If your claim is denied
You have 60 days after you receive the decision to object — and the statute makes that deadline jurisdictional. Under W. Va. Code § 23-5-1a, the action of the Insurance Commissioner, private carrier, or self-insured employer "is final unless an objection to the decision is properly filed within 60 days after the receipt of such decision." The objection (protest) is filed with the West Virginia Workers' Compensation Board of Review.
When you file a protest, include a copy of the claim administrator's order, sign and date the protest, and send copies to the other parties. Attorneys file through the Board's e-filing portal; an unrepresented claimant may file by mail or fax. Filing details and addresses: wvinsurance.gov Board of Review.
If you disagree with the Board of Review's final decision, the next step is an appeal to the West Virginia Intermediate Court of Appeals. Under W. Va. Code § 23-5-12a, a written notice of appeal must be filed with that court (with a copy to the Board of Review) within 30 days after receipt of notice of the Board's action, or in any event, regardless of notice, within 60 days after the date of the action. These windows are short — act as soon as a decision arrives rather than waiting.
Where to get help in West Virginia
Your claim administrator first. For claim-status questions, start with the carrier or self-insured employer handling your claim — the contact information is on your claim correspondence.
West Virginia Offices of the Insurance Commissioner — Workers' Compensation:wvinsurance.gov/workers-compensation. Claims Services: (304) 558-5838. Workers' compensation complaints: (888) 879-9842 or (304) 558-3386. The site also hosts the Coverage Verification System for finding an employer's carrier.
Legal help. The West Virginia State Bar — the administrative agency of the state's Supreme Court of Appeals that licenses lawyers — maintains a public Get Legal Help page listing its Lawyer Referral Service (for consulting a private workers' compensation attorney) and Legal Aid of West Virginia (free civil legal help for income-eligible West Virginians).
This article provides general legal information about West Virginia workers' compensation law, not legal advice. For guidance on your specific situation, contact the West Virginia Offices of the Insurance Commissioner or a licensed West Virginia attorney.
Frequently asked questions
How soon do I have to tell my employer about a work injury in West Virginia?
West Virginia Code 23-4-1a requires written notice to the employer immediately upon the injury, or as soon thereafter as practicable, stating the time, place, nature, and cause of the injury. The statute sets no fixed number of days, so report it the same day if you can and keep a dated copy.
How long do I have to file a workers' compensation claim in West Virginia?
For an ordinary injury, the application for benefits must be filed within six months of the injury; W. Va. Code 23-4-15 says that if it is not, the right to compensation is forever barred, and calls the limit jurisdictional. The same statute provides that if the employee is mentally or physically incapable of filing, the application may be filed by his or her attorney or by a member of his or her family. Occupational disease and occupational pneumoconiosis claims run on longer, differently measured clocks (generally three years — see below). Filing the claim is a separate step from notifying your employer.
What if I was hospitalized or unable to file within the six months?
W. Va. Code 23-4-15 addresses this directly: 'In case the employee is mentally or physically incapable of filing the application, it may be filed by his or her attorney or by a member of his or her family.' If you are hospitalized, sedated, or otherwise incapacitated, a family member or an attorney can file the application on your behalf — but it still needs to be filed within the six-month window, so ask someone to do it as soon as possible rather than waiting until you recover.
I was diagnosed with a work-related disease years after my last exposure. Is my claim too late?
Not necessarily. For an occupational disease other than pneumoconiosis, W. Va. Code 23-4-15(c) gives you three years from the day you were last exposed to the hazard, or three years from when the disease was made known to you by a physician or you should reasonably have known of it — 'whichever last occurs.' The clock runs from the LATER of those dates, so a last exposure far in the past does not by itself bar a recently diagnosed disease. Occupational pneumoconiosis (black lung) has its own three-year rules under 23-4-15(b). Do not give up on the claim without checking with the claim administrator or the Offices of the Insurance Commissioner.
Can I choose my own doctor for a West Virginia workers' comp injury?
Only if your employer or its carrier does not maintain an approved managed health care plan — in that case you may select your initial health care provider. If a managed plan is in place, you can be required to use its authorized providers, changes of provider go through the plan, and treatment outside the plan requires written approval from the Insurance Commissioner, the carrier, or the self-insured employer (W. Va. Code 23-4-3).
What percentage of my wages does West Virginia workers' comp pay?
Temporary total disability is paid at 66⅔% of your average weekly wage earnings at the date of injury, subject to a statutory maximum and minimum tied to the state average weekly wage that adjust annually — the Offices of the Insurance Commissioner publishes the current figures. There is a waiting period: no wage benefit if the disability lasts three days or fewer, and if it lasts longer than seven days, the first three days are paid as well.
What if my West Virginia workers' comp claim is denied?
File an objection (protest) with the West Virginia Workers' Compensation Board of Review within 60 days after you receive the decision — W. Va. Code 23-5-1a makes that deadline a jurisdictional condition of your right to litigate. If you disagree with the Board of Review's final decision, you may appeal to the West Virginia Intermediate Court of Appeals within 30 days after notice of the Board's action, or within 60 days of the action regardless of notice.
This article is general legal information, not legal advice, and may not reflect the most current law or the law in your jurisdiction. Laws vary by state and change over time. For advice about your specific situation, consult a licensed attorney.
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