Attorneys sued for malpractice for alleged mishandling of case involving workers’ compensation benefits for children of deceased logger.
Dusty Durr Burkey is suing her former attorneys, Thorn H. Thorn and Thomas Kroger, claiming they
missed a crucial deadline and failed to provide her information when representing her in claiming workers compensation benefits for her children following the work-related death of their father.
On June 4, 2012, Jason Scot Wiles was employed by Backwoods Logging as a tree cutter and logger and he died as a result of a work-related accident sustained in Marion County and he was found lying between two large trees approximately 25 feet from a logging road, according to a complaint filed March 14 in Preston Circuit Court.
Burkey claims further investigation revealed that Wiles had cut down a tree that, while falling, struck another tree and that tree struck a third tree and the two trees became lodged together.
When Wiles began walking back toward the felled tree to obtain his chainsaw, the stuck tree became dislodged, resulting in a piece of its trunk striking him in the head, according to the suit. He was pronounced dead at the scene and his death was categorized as work-related.
Burkey claims on Oct. 2, 2012, she met with Thorn H. Thorn and Thomas Kroger to discuss issues related for her minor children due to their father’s death, and, during the meeting, she specifically inquired whether her children were eligible for Workers’ Compensation benefits.
The defendants informed Burkey that they were not aware whether the minor children were eligible for Workers’ Compensation benefits and that they would check the law and determine if they were, according to the suit.
Burkey claims between Oct. 2, 2012, and March 2014, she attempted on multiple occasions to contact Thorn and Kroger regarding the status of any claims the children may have had to Workers’ Compensation benefits or otherwise and finally spoke with Kroger, who informed her that he did not have the information she requested and that Thorn could better answer her questions, however, Thorn never contacted her regarding the potential claim.
Had the defendants investigated the applicable Workers’ Compensation law, they would have discovered that under West Virginia Code, application for death benefits must be received within six months of the fatality, according to the suit.
Burkey claims she terminated the attorney-client relationship with Kroger and Thorn due to their lack of communication and failure to identify and prosecute Workers’ Compensation beneficiary claims on behalf of her two minor children.
On June 3, 2014, Burkey filed a petition for Dependent’s Benefits pursuant to the West Virginia Workers’ Compensation law and on June 13, 2014, the petition was rejected as untimely, and the six-month jurisdictional timeline was cited as the reason for the rejection.
Burkey claims she filed an appeal with the Office of Judges and on June 4, 2015, it issued its decision rejecting the application for benefits. She then appealed that decision to the Workers’ Compensation Board of Review.
The defendants negligently failed to provide Burkey with the information regarding Workers’ Compensation, nor the applicable six-month deadline to file a petition for benefits for the minor children, according to the suit.
Burkey is seeking compensatory and punitive damages. She is being represented by Christopher D. Negley and Michael Dunham of Shuman McCuskey & Slicer PLLC.
Originally posted by Kyla Asbury in the West Virginia Record.
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