Visitor Question

What if workers’ comp refuses surgery but I’m still injured?

Submitted By: Brandon (Logan, West Virginia)

I work in the underground coal mines & injured my knee. I’ve gone through therapy & knee injections but nothing is helping. My doctor says I need surgery to fix problems. Workers’ comp says they read my MRI as a pre-existing injury or something that has occurred over time. But I’ve never had any other injuries or even pain until accident at work.

They’re sending me to an IME doctor. They said if he says it’s due to something that occurred on-the-job, I can have surgery to fix it. But if not, it’ll be up to me to have it fixed myself & my workers comp payments will end. I can’t afford to go without money coming in & pay for surgery myself. Plus, my job will fire me if workers comp cuts me off & I don’t return to work.

If they force me back to work without being 100% & I hurt myself again, what can I do? Any information you can give would be very helpful. Thanks.

Disclaimer: Our response is not formal legal advice and does not create an attorney-client relationship. It is generic legal information based on the very limited information provided. Do not rely upon the information in our response, or anywhere else on this site, when deciding the proper course of a legal matter. Always get a personalized case review from a local attorney.


Dear Brandon,

In West Virginia, when a worker has a prior injury and s/he receives a new injury while on the job, the prior injury and the effect of the prior injury and its exacerbation will not be taken into account when the insurance company is deciding the amount of benefits for the new injury. Compensation for the worker will be awarded only in the amount which would have been allowable if the worker had not sustained the prior injury.

In other words, your prior injury will not be considered when the insurance company is deciding what amount of benefits to award you for your new injury. The benefits will be just for your new injury as if your prior injury never existed.

Unfortunately, you are subject to this statute. While you are entitled to medical and wage loss benefits for your new injury, if those benefits are insufficient to help you recover fully because of your prior injury, you will be in a difficult position. You will either have to pay for the additional medical treatment it would require to treat your exacerbated injury, or find employment in a position which can accommodate physical limitations.

You can read the entire statute here: West Virginia Statutes Section 23-4-9b

Learn more here: Denied Workers' Comp? What to Do

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from a licensed attorney.

Find a local attorney to give you a free case review here, or call 888-972-0892.

We wish you the best with your claim,


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