State News : West Virginia

The West Virginia Workers' Compensation Board of Review has implemented a new procedure for a claimant to file a protest to a claim administrator's order that does not include a Jurisdictional Claim Number. Claim administrators who are not following claim reporting procedures will be tracked by the Offices of the Insurance Commissioner. 

The Board of Review has changed the process for submitting a protest to a claim administrator's order that does not include the JCN. Claimants and their attorneys will no longer be required to call the claim administrator or the OIC's Claims Services in an effort to track down a JCN. Since a protest cannot be submitted on the Board of Review's portal without a JCN, please follow this process if you are submitting a protest to a claim administrator's order that does not include the JCN:

· Fax or mail the protest to the Board of Review (PO Box 2628, Charleston, WV  25329; 304-558-1322)

· A Temporary JCN will be assigned and the protest will be acknowledged.

· The Board will issue an order requiring the claim administrator to provide the JCN to the Board and the parties, in writing, within 15 calendar days from the date of the Board's order.  A copy of the Board's order will be provided to the OIC in order to track claim administrators who are failing to follow reporting procedures.

The Board of Review can be contacted by calling Beth Suter at 304-414-1027.

04/04/2023

West Virginia News: Employer and Co-Employee Immunity, COVID-19 Compensability, and Intentional Tort Damages Cap

West Virginia Supreme Court of Appeals

http://www.courtswv.gov/supreme-court/docs/spring2023/21-0841-hutchison-p.pdf

In Precision Pipeline, the Supreme Court reinforced what it termed as “sweeping” immunity from common law tort liability provided to employers by the workers’ compensation statute. The workers’ compensation act shields an insured employer from liability outside the workers’ compensation system for workplace injuries. Similarly, an employee of an insured employer who negligently injures a fellow employee during the course of their employment is not liable to respond in damages to the injured fellow employee for the personal injuries caused.

Mr. Weese was injured in course and scope of his employment with Precision Pipeline and brought claims of negligent hiring, retention, and supervision against his employer with respect to co-employees, negligence claims against the employer and co-employees, a vicarious liability claim against his employer, and a claim for punitive damages. The Court reversed the circuit court’s order denying a motion to dismiss because workers’ compensation immunity bars the employee’s claims.

Weese severely injured his left leg at work and was treated at the accident scene by an on-site EMT Vanessa Stromberg who also was employed by Precision. Weese argued the EMT was not licensed and “provided no actual medical assistance or intervention on site;” and that “no ambulance or outside medical assistance” was summoned in violation of West Virginia law and public policy to treat medical emergencies. Weese alleged that he has been unable to work and has suffered permanent injuries as a direct result of Precision's negligence “in seeking acute medical care for [him]” and “the lack of competent immediate [sic] medical care.” Weese also alleged in his complaint that “supervisors and other Precision Pipeline employees received monetary bonuses based in part on workplace safety and limiting reportable workplace injuries[,]” and that petitioners “conspired to provide the bare minimum emergency medical response to [respondent] to ensure that safety bonuses were not affected.” Because Weese’s injury occurred in the course and scope of his employment, he received workers’ compensation benefits for his injury. He also claimed negligent hiring, retention, and supervision against Precision with respect to a co-employee superintendent and the co-employee EMT (Count 1); negligence against Precision Pipeline and the two co-employees (Count 2); vicarious liability against Precision (Count 3); and punitive damages (Count 4). The defendants moved to dismiss asserting workers’ compensation immunity under W. Va. Code § 23-2-6 (2003) and § 23-2-6a (1949). 

The Court described workers’ compensation immunity from common law tort liability as sweeping:

The Legislature intended for W.Va. Code § 23-2-6 (1991) to provide qualifying employers sweeping immunity from common-law tort liability for negligently inflicted injuries. As this Court succinctly stated in State ex rel. Frazier v. Hrko, 203 W.Va. 652, 659, 510 S.E.2d 486, 493 (1998), ‘[w]hen an employer subscribes to and pays premiums into the Fund, and complies with all other requirements of the Act, the employer is entitled to immunity for any injury occurring to an employee and ‘shall not be liable to respond in damages at common law or by statute.’ W. Va. Code § 23–2–6 [1991].

Precision Pipeline, LLC v. Weese, 2023 WL 2365328, at *3 (quoting Bias v. E. Assoc'd. Coal Corp., 220 W. Va. 190, 194, 640 S.E.2d 540, 544 (2006)).

The Court noted that the workers’ compensation immunity extends to negligent co-workers:

The sweeping immunity afforded to employers by West Virginia Code § 23-2-6 extends to acts of fellow employees by virtue of West Virginia Code § 23-2-6a, which provides: ‘The immunity from liability set out in the preceding section shall extend to every officer, manager, agent, representative or employee of such employer when he is acting in furtherance of the employer's business and does not inflict an injury with deliberate intention.’

Precision Pipeline, LLC v. Weese, 2023 WL 2365328, at *3.

The Court found it was undisputed Weese filed for workers’ compensation benefits for his injury, and Weese’s receipt of workers’ compensation benefits “. . . necessarily embraces a determination that his injuries were sustained during the course of and as a result of his employment.” Precision Pipeline, 2023 WL 2365328, at *4 (quoting with emphasis added Bennett v. Buckner, 150 W. Va. 648, 653, 149 S.E.2d 201, 204 (1966)). Citing no supporting legal authority, Weese claimed Precision's negligence in hiring, retaining, and supervising the employee as an EMT is not the type of employer negligence contemplated by West Virginia’s workers’ compensation law such that immunity should bar his claim. See id. The Court found this argument ignored the clear and unambiguous language of the statute expressing a clear legislative intent to provide immunity.

West Virginia Code § 23-2-6 expressly provides that qualified employers are “not liable to respond in damages at common law ... for the injury or death of any employee, however occurring[.]” Id., in pertinent part (emphasis added). As we have already noted, “however occurring” means “an employee who is injured in the course of and as a result of his employment, and one who, under the common-law principles of master and servant, could have maintained an action against his employer.” Falls, 223 W. Va. at 72, 672 S.E.2d at 208 (emphasis added). Clearly, respondent, who concedes that he was injured in the course of and as a result of his employment, could have maintained an action against Precision under the common law principles of master and servant. Accordingly, workers’ compensation immunity bars respondent's claim for negligent hiring, retention, and supervision.

Precision Pipeline, LLC v. Weese, 2023 WL 2365328, at *4 (quoting Falls v. Union Drilling, Inc., 223 W. Va. 68, 72, 672 S.E.2d 204, 208 (2008)).

The Court similarly found that Weese’s co-employees are immune from suit.

It is beyond cavil that Stromberg and other employees were acting in furtherance of Precision's business when they attended to respondent following his injury. The allegations in respondent's complaint state that Petitioner Vanessa Stromberg, a supposed EMT employed by Precision, was summoned to the site where respondent was injured, that she failed to provide medical assistance, and that she and other Precision employees drove past a nearby hospital in order to transport respondent first to Precision's office, transferring him to another vehicle, and finally driving him to MedExpress. Respondent's own account of the events at issue – including that the employees’ actions were motivated by monetary safety bonuses allegedly offered by their employer – clearly shows that they were acting in furtherance of their employer's business, albeit negligently so. As such, Stromberg and her fellow employees are immune from suit.

Precision Pipeline, LLC v. Weese, 2023 WL 2365328, at *5.

Intermediate Court of Appeals

In the Spring Term of Court in 2023, the Intermediate Court of Appeals of West Virginia (ICA) continues to issue decisions of importance in workers’ compensation cases. Two opinions of note address the question whether a COVID infection is an ordinary disease of life or an occupational disease.

COVID Compensability

PrimeCare Medical of WV, Inc., v. Brittany Foster, No. 22-ICA-138, 2023 WL 2364951 (W. Va. App. 03/06/2023)

http://www.courtswv.gov/intermediate-court/docs/Spring2023/22-ICA-138_greear.pdf

In the first signed opinion in the Spring Term of 2023, the ICA reversed the Board of Review and remanded the case to determine whether claimant met the six statutory factors for establishing a communicable disease of ordinary life was compensable. The ICA found that the Board of Review's order failed to provide sufficient findings of fact and conclusions of law to support its ruling. West Virginia Code § 23-4-1(f) (2021) provides that no ordinary disease of life to which the general public is exposed outside of employment is compensable under workers’ compensation unless the disease was incurred in the course of and resulted from employment. To make such a determination, a detailed analysis of the six factors listed in West Virginia Code § 23-4-1(f) must be completed. No such analysis was completed by the BOR, so the ICA vacate the BOR's final order and remanded the case with direction to make specific findings of fact and conclusions of law for each of the individual factors under West Virginia Code § 23-4-1(f). PrimeCare Medical of WV, Inc. v. Foster, 2023 WL 2364951, at *1 (W.Va. App., 2023).

Foster was employed by PrimeCare as the Health Services Administrator at Southern Regional Jail, and had administered COVID-19 tests to inmates in the medical unit at the jail. When testing, Foster wore full personal protective equipment including an N95 mask. Foster attended a management staff meeting with the heads of each department in the jail. Several days after the meeting, PrimeCare sent everyone who attended the meeting home to quarantine, due to members of the staff testing positive for COVID-19. During Foster’s quarantine period, she engaged in several non-work related activities, including a trip to a drive-through zoo with her mother, father, and two nieces and a visit to the emergency room on August 4, 2020. On August 4, 2020, Foster submitted to a COVID-19 test at Summers County Appalachian Regional Healthcare Hospital, which was negative. On August 11, 2020, Foster took a second COVID-19 test, which was positive. Foster was hospitalized from August 11, 2020, to August 24, 2020, due to pneumonia. As of August 20, 2020, Ms. Foster tested negative for COVID-19.

Foster's medical records note that she has a history of recurrent bronchitis, suffers from morbid obesity, and had an issue with sinus tachycardia over the last few years. Beginning August 31, 2020, and continuing through March 9, 2022, Foster underwent treatment from multiple doctors for COVID-19, major depressive disorder, morbid obesity, asthma, congestive heart failure, dyspepsia, and tachycardia. PrimeCare Medical of WV, Inc. v. Foster, 2023 WL 2364951, at *1 (W. Va. App., 2023).

Claimant filed an application for workers’ compensation benefits (“WC-1”) alleging direct COVID-19 exposure while at work. The physician’s portion of the WC-1 form diagnosed Foster with COVID-19 but indicated “N/A” in response to whether the condition was a direct result of employment. Claimant completed a second WC-1 form again alleging direct COVID-19 exposure while at work. The physician completing the physician's portion of the second WC-1 form indicated “non-occupational condition” in response to whether the condition was a direct result of employment. On March 1, 2022, the claim administrator denied Foster's claim for COVID-19. This order was appealed.

Bruce Guberman, M.D., conducted an IME of Foster and determined that Foster's contraction of COVID-19 was an “occupational disease” based on the medical records and medical history reported by Foster. Dr. Guberman was subsequently deposed and acknowledged that no medical or scientific tests were available to determine the exact source of Foster's COVID-19 infection. Thomas Parker, M.D., issued a medical review report opining that Foster had COVID-19 in August of 2020, but that the condition was not an occupational disease. Further, Dr. Parker opined that Foster recovered from COVID-19 pneumonia very quickly based on the total lung capacity pulmonary function test from September 1, 2020. Dr. Parker attributed Foster's continuing pulmonary problems to asthma and tachycardia, which were well established in her medical records and pre-dated her COVID-19 diagnosis.

On August 29, 2022, the Board of Review reversed the claim administrator, held Foster's workers’ compensation claim compensable for COVID-19, and awarded her temporary total disability benefits from August 10, 2020, through March 9, 2022, to continue thereafter as substantiated by proper medical evidence.

The ICA examined the different routes some state legislatures have taken in addressing COVID-19 in the context of workers’ compensation, and the Court noted the limited number of appellate courts addressing the compensability of COVID-19 in workers’ compensation. The ICA also discussed the enactment by the West Virginia Legislature in March 2021 of the COVID-19 Job Protection Act in W. Va. Code § 55-19-6, that provides that workers’ compensation benefits are the sole remedy for any injury, disease, or death when the work-related injury, disease, or death is caused by COVID-19 received in the course of and resulting from covered employment.

COVID-19 is not compensable as an occupational disease unless it is incurred in the course of and resulting from employment. W. Va. Code § 23-4-1(f). No ordinary disease of life to which the general public is exposed outside of the employment is compensable except when it follows as an incident of occupational disease. “To determine if an ordinary disease of life follows as an incident of occupational disease, a six-factor analysis must be completed, and all factors must be met.” PrimeCare Medical of WV, Inc., 2023 WL 2364951, at *3.

W. Va. Code 23-4-1(f) provides the six-factor compensability test as follows:

A disease is considered to have been incurred in the course of or to have resulted from the employment only if it is apparent to the rational mind, upon consideration of all the circumstances: (1) that there is a direct causal connection between the conditions under which work is performed and the occupational disease; (2) that it can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment; (3) that it can be fairly traced to the employment as the proximate cause; (4) that it does not come from a hazard to which workmen would have been equally exposed outside of the employment; (5) that it is incidental to the character of the business and not independent of the relation of employer and employee; and (6) that it appears to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence, though it need not have been foreseen or expected before its contraction: Provided, That compensation is not payable for an occupational disease or death resulting from the disease unless the employee has been exposed to the hazards of the disease in the State of West Virginia over a continuous period that is determined to be sufficient, by rule of the board of managers, for the disease to have occurred in the course of and resulting from the employee's employment.

The Court held:

With this statutory framework in mind, we hold that although there is no prohibition on a claim for workers’ compensation benefits arising from or relating to COVID-19, it is generally not compensable, as it is a disease of ordinary life, unless the six factors contained in § 23-4-1(f) are met. While this undoubtedly creates a high burden on the claimant in establishing his or her case, it does not bar the compensability of COVID-19 claims when this burden is met.

PrimeCare Medical of WV, Inc., 2023 WL 2364951, at *4.

COVID Compensability

Vaughn Hutchison v. Raytheon Corp., No. 22-ICA-105, 2023 WL 2568817 (W. Va. App. 03/20/2023) (memorandum decision)

http://www.courtswv.gov/intermediate-court/memo-decisions/Spring2023/22-ICA-105md.pdf

In Hutchison v. Raytheon Corp., No. 22-ICA-105, 2023 WL 2568817 (W. Va. App. 03/20/2023) (memorandum decision), the ICA held that a determination of COVID-19 as an occupational disease requires the Board of Review to meaningfully assess the facts of each claim under the six-factors set forth in W. Va. Code 23-4-1(f), as discussed in PrimeCare Medical of WV, Inc., v. Brittany Foster, No. 22-ICA-138, 2023 WL 2364951 (W. Va. App. 03/06/2023). Hutchison failed to satisfy all of the six factors and the denial of his COVID-19 claim was affirmed.

Hutchison was employed by Raytheon as a builder of aircraft de-icing units. During the shut downs caused by the COVID-19 pandemic, Hutchison and his co-workers were deemed “essential workers” and the Raytheon facility operated normally with no reduction in the number of employees working any given shift. Hutchison testified co-workers were in close proximity to one another, and no social distancing or masking protocols were in place at the facility. Hutchison alleged he was exposed to and contracted COVID-19 in his workplace during an outbreak among employees when he and eight others tested positive. Hutchison v. Raytheon Corporation, 2023 WL 2568817, at *1.

Hutchison admitted that he attended church approximately three times monthly where congregation attendance consisted of approximately two hundred people. Hutchison was not aware of the health department considering his church to be a place of COVID-19 outbreak. The record is silent as to whether any COVID-19 safety protocols were employed by the church.

After contracting COVID-19, Hutchison was hospitalized and treated for atypical pneumonia from COVID-19 infection and dyspnea. He also reported to the hospital emergency department for shortness of breath, viral pneumonitis, and a respiratory tract infection from COVID-19. Hutchison completed a West Virginia Workers’ Compensation Employees’ and Physicians’ Report of Occupational Injury or Disease (“WC-1”) form alleging that he had contracted COVID-19 due to his workplace exposure. The physician's portion of the application was completed by Zach Halsey, D.O., who confirmed the diagnosis of COVID-19. Hutchison v. Raytheon, 2023 WL 2568817, at *2.

The claim administrator denied Hutchison's workers’ compensation claim based upon a lack of a causal connection between Hutchison's COVID-19 diagnosis and his work per W. Va. Code § 23-4-1(f), as COVID-19 is a disease of ordinary life to which the public is exposed outside of work. Hutchison protested and the Office of Judges affirmed the order of the claim administrator, concluding that COVID-19 is a disease of life to which the public at large is exposed and Hutchison's exposure at work did not arise to a level where such exposure could be deemed to have arisen in the course of and resulting from his employment. The Board of Review affirmed the decision of the Office of Judges.

On appeal, the ICA stated that an analysis of compensability of COVID-19 required Hutchison to satisfy all six factors set forth in W. Va. Code § 23-4-1(f) to prove compensability. In this case, the Board of Review found that COVID-19 is a disease of life to which the public at large is exposed and concluded that Hutchison's exposure at work did not arise to a level which could be deemed to have arisen in the course of and resulting from his employment. The Board of Review determined that even if it were to concede factors one, two, and three, that Hutchison could not satisfy the remaining factors. Specifically, after discussing the evidence introduced regarding Hutchinson's exposure at work and potential exposure at other locations including church, the Board of Review found “as the claimant described his exposure at Raytheon Corp., it would be difficult to find that COVID-19 comes from a hazard to which a workman would have been not exposed outside of employment.” The Board of Review also concluded that the exposure was not incidental to the character of the business, and that it did not have its origin in a risk connected with the employment. Hutchison v. Raytheon, 2023 WL 2568817, at *3.

The ICA agreed and concluded that the Board of Review was not clearly wrong in finding that Hutchison failed to meet his burden to prove that his contraction of COVID-19 was the result of his employment. “Per our decision in PrimeCare, if the BOR finds that the claimant has failed to satisfy any of the six factors under West Virginia Code § 23-4-1(f), further analysis is unwarranted.” Hutchison v. Raytheon, 2023 WL 2568817, at *3 (emphasis in original).

Jurisdiction

In Jessica Cassel v. Aspen Builders, Inc., No. 22-ICA-211, 2023 WL 2366502 (W. Va. App., 03/06/2023) (memorandum decision), the ICA addressed the question whether a fatal dependents’ benefits claim was properly filed in West Virginia when the employee’s death occurred on a job site in Kentucky. The claim administrator issued an order denying dependent benefits for lack of jurisdiction because Mr. Cassel was killed while working in Kentucky on a non-temporary basis. To be entitled to benefits under the West Virginia Workers’ Compensation system an employee's work in another state must be on a temporary or transitory basis. See West Virginia Code § 23-2-1a (2021). Cassel v. Aspen Builders, Inc., 2023 WL 2366502, at *1. The ICA found that the Board of Review was not clearly wrong in finding that Mr. Cassel’s work in Kentucky was not temporary or transitory due to testimony from the employer that Mr. Cassel would be working in Kentucky for over thirty days and the project he was working on when he sustained the fatal injury did continue beyond thirty days. The ICA found no error in the Board of Review’s ruling that Ms. Cassel is not entitled to Workers’ Compensation benefits in West Virginia.

West Virginia Legislative Session 2023

Intentional Tort Legislation Damages Cap

House Bill 3270 amends West Virginia Code § 23-4-2 and the deliberate intent exception to the exclusive remedy of workers’ compensation insurance for employee recovery for workplace injuries. The amendments limit noneconomic damages to $500,000 and heightens the burden of proof in deliberate intent cases based on occupational pneumoconiosis. The bill is effective 90 days from passage on June 8, 2023. The section applies to causes of action accruing on or after July 1, 2023.

House Bill 3270 created a new section W. Va. Code § 23-4-2a. In any deliberate intent lawsuit, the maximum amount recoverable as compensatory damages for noneconomic loss may not exceed the higher of two times the economic damages before the workers’ compensation offset or $500,000 for each person, regardless of the number of plaintiffs or defendants or, in the case of wrongful death, the number of distributees.

House Bill 3270 also sets a higher standard of proof necessary to bring a deliberate intent case when the underlying workplace claim is for occupational pneumoconiosis, set forth in W. Va. Code § 23-4-2(d)(2)(B)(v)(IV). House Bill 3270 added a threshold requirement that “the employee asserting a cause of action based upon this clause must prove that the employer fraudulently concealed or manipulated dust samples or air quality samples.”

Preferential Recall of Injured Employee

Another bill of interest to businesses in West Virginia is Senate Bill 661 that amends West Virginia Code §23-5A-3, relating to the preferential recall rights of an employee who is off work due to a compensable injury. The changes in the new statute include the employee’s demand for reinstatement to his/her former position must be in writing and delivered to the employer’s address by U.S. Mail with return receipt requested. The preferential recall time period remains one year provided the employee provides the employer a current mailing address during the one-year period. Finally, the new bill provides for a preferential recall time period of no greater than 120 days after the employee is released to return to work by a licensed physician when the injured employee is employed by contractors as defined by W. Va. Code §30-42-3 of the West Virginia Contractor Licensing Act. The employee of such an employer has an obligation to continually seek the possibility of employment during the preferential recall period, and the employee’s right to preferential recall terminates once the employer offers the employee his or her former position or a comparable position. The bill was signed by Governor Justice on March 29, 2023, and is effective 90 days from passage on June 9, 2023.

For any questions, please contact:

Dill Battle

Spilman Thomas & Battle, PLLC

hdbattle@spilmanlaw.com

304-340-3823

TO: NWCDN STATE NEWS

FROM: Dill Battle, Spilman Thomas & Battle, PLLC

DATE: 02/01/2023

RE: West Virginia Workers' Compensation News – 1^st Quarter 2023

Intermediate Court of Appeals

Since opening its doors on July 1, 2022, the Intermediate Court of Appeals (ICA) has been busy in its Fall Term of 2022 and in the Spring Term of 2023. In the Fall 2022 term, 24 of 27 opinions issued by the ICA were workers’ compensation cases. Of the 24 cases, only one case was a signed opinion which will be discussed below. Through January 10, 2023, in the Spring Term, 21 of 28 opinions issued are workers’ compensation cases, and all are Memorandum Decisions. The term runs through June 15, 2023.

The ICA has heard oral arguments in several workers’ compensation cases, one of which was the first signed opinion of the ICA that was issued in its last term.  

Apportionment of preexisting impairment in permanent partial disability awards

In Duff v. Kanawha County Commission, No. 22-ICA-10 (November 9, 2022), the ICA issued a signed opinion addressing the legal question of apportionment of preexisting impairment in permanent partial disability awards. The ICA affirmed the July 26, 2022, Workers’ Compensation Board of Review order affirming the claim administrator’s June 17, 2021, order granting a 13% PPD award. In a detailed opinion written by Judge Scarr, the ICA found the Board's decision allowing a roughly equal apportionment of impairment between the compensable injury and the claimant's preexisting condition did not constitute legal error nor was it clearly wrong in view of the reliable evidence of record. The ICA was not convinced Dr. Mukkamala’s apportionment of 12% whole person impairment was arbitrary and said that Dr. Guberman’s failure to apportion preexisting impairment made his report unreliable. Dr. Guberman’s report estimated 25% whole person impairment, and said Claimant was entitled to an additional 12% PPD award.

The ICA held that:

1.      “Definitely ascertainable” and “definitely ascertained” for purposes of W. Va. Code § 23-4-9b (2003), refer to the existence of a preexisting condition, and not to the precise degree of impairment to be apportioned.

2.      Quantifiable information, such as pre-injury range of motion measurements, prior permanent partial disability awards, or pre-injury conditions or procedures that would yield a percentage of impairment from a Table, is not always required to apportion impairment, as long as there is a reasonable basis for apportionment based on other competent evidence.

3.      Whether preexisting degenerative changes of the spine would qualify for an impairment rating using either the Range of Motion Model or West Virginia Code of State Rules Tables 85-20-C, D or E is not the standard for whether those changes can be ascertained and then apportioned.

The ICA noted that the record in the Duff case “illustrates the need for physicians to identify and carefully explain the basis for their apportionment decisions, leading us to offer some guidance for future evaluations.”

The full opinion can be read at the following link:

http://www.courtswv.gov/intermediate-court/docs/fall2022/22-ICA-10-Scarr.pdf

Supreme Court of Appeals

In the Spring Term of the 2023 court year for the West Virginia Supreme Court of Appeals, the Court issued 11 memorandum decisions in workers’ compensation cases through January 23, 2023. The term ends June 15, 2023   

http://www.courtswv.gov/supreme-court/opinions.html

Preexisting Conditions and Compensability

There are some interesting decisions so far in the January 2023 term of the West Virginia Supreme Court of Appeals. In the recent cases of Moore v. ICG Tygart Valley and Gill v. City of Charleston the Court examined the standards for determining compensability of preexisting conditions. In syllabus point 3 in Gill v. City of Charleston, 236 W. Va. 737, 783 S.E.2d 857 (2016) the Court created a general rule that:

[a] noncompensable preexisting injury may not be added as a compensable component of a claim for workers’ compensation medical benefits merely because it may have been aggravated by a compensable injury. To the extent that the aggravation of a noncompensable preexisting injury results in a [discrete] new injury, that new injury may be found compensable.

In syllabus point 5 of Moore v. ICG Tygart Valley, LLC, ___ W. Va. ___, 879 S.E.2d 779 (W. Va. 2022), the Court expanded Gill in certain cases and created a rebuttable presumption:

A claimant’s disability will be presumed to have resulted from the compensable injury if: (1) before the injury, the claimant’s preexisting disease or condition was asymptomatic, and (2) following the injury, the symptoms of the disabling disease or condition appeared and continuously manifested themselves afterwards. There still must be sufficient medical evidence to show a causal relationship between the compensable injury and the disability, or the nature of the accident, combined with the other facts of the case, raises a natural inference of causation. This presumption is not conclusive; it may be rebutted by the employer.

In Carter v. Davis Health System, No. 21-0129 (January 19, 2023), the Court analyzed the question of compensability under the Gill v. City of Charleston and Moore v. ICG Tygart Valley standards, but it determined the employer had overcome the presumption of compensability because the evidence established the requested diagnoses were not only diagnosed before the original date of injury, but were actively symptomatic and required treatment. The Court found the claimant may have sustained an aggravation of her longstanding low back condition but did not establish she suffered a discreet new injury.

In a dissenting opinion, Justice Wooten complains the Court’s holding shows an age-related bias against older workers who are far more likely to have degenerative musculoskeletal conditions after a lifetime of physical labor. While interesting, Justice Wooten’s analysis in not necessarily germane to the factual issues before the Board of Review and the Court. He also cites to the Rule of Liberality with the Repass case, but the Rule of Liberality was statutorily overruled in 2005 by W. Va. Code § 23-4-1g: “Two decades after its decision in Repass, this Court appears to have sounded a wholesale retreat from the Rule of Liberality articulated in that case. Repass, 212 W. Va. at 92-93, 569 S.E.2d at 168-69.”

Preexisting Conditions and Compensability under Moore v. ICG Tygart Valley

In three cases, the Supreme Court remanded the cases to the Board of Review with directions to analyze the case under the new standard set forth in Moore v. ICG Tygart Valley to determine if a  preexisting condition was asymptomatic prior to the compensable injury.

Butcher v. Parker Drilling, No. 21-0504 (January 23, 2023).

Edwards v. Kanawha County Board of Education, No. 21-0480 (January 23, 2023).

Ferrell v. Northwest Hardwoods, No. 21-0208 (January 19, 2023).

Several recent cases of the Intermediate Court of Appeals have similarly remanded the cases to the Board of Review with instructions to establish new time frames for the introduction of evidence and argument to determine the compensability of preexisting conditions under the Moore v. ICG Tygart Valley and Gill v. City of Charleston standards.

Addition of psychiatric conditions applying the Hale factors

Another case of note was Genesis Healthcare Corp. v. D.N., No. 21-0500 (January 23, 2023), in which the Court addressed the question of compensability of the addition of psychiatric conditions in a claim. The Court sustained the rulings of the Board of Review and the Office of Judges that reversed the claim administrator’s order denying a request to add major depressive disorder and generalized anxiety disorder. The Court applied the factors set forth in Hale v. West Virginia Office of the Insurance Commissioner, 228 W. Va. 781, 724 S.E.2d 752 (2012). In Hale, the Court held that West Virginia Code of State Rules § 85-20-12.4 sets forth a three-step process that must be followed when a claimant is seeking to add a psychiatric disorder as a compensable injury in his/her workers’ compensation claim: (1) the claimant’s treating physician refers the claimant to a psychiatrist for an initial consultation; (2) following the initial psychiatric consultation, the psychiatrist is to make a detailed report consistent with the procedure described in W. Va. C.S.R. § 85-20-12.4; and (3) the claims administrator, aided by the psychiatrist's report, is to determine whether the psychiatric condition should be added as a compensable injury in the claim. The Court found that the evidence in the record supported the Board of Review’s decision. The treating psychiatrist provided the required information to the claim administrator, including the conditions diagnosed, the relationship to the compensable injury, the proposed treatment, and whether the claimant had returned to work. In fact, the psychiatrist provided years of treatment notes as well as a Diagnosis Update form and testified regarding the issue of compensability.

http://www.courtswv.gov/supreme-court/memo-decisions/spring2023/21-0500%20md.pdf

Petition to reopen a permanent disability claim may proceed

In the Fall Term 2022, the Court had one signed opinion for its workers’ compensation cases in a consolidated case in Charles Delbert v. Marshall County Coal Resources, Inc., No. 20-0537 and 21-0944 (November 3, 2022). The case deals with W. Va. Code 23-4-16(e), which states that a claimant may only have one active request for a permanent disability award pending at any one time. In Syllabus point 2, the Court stated: “A petition to reopen a permanent disability claim may not be denied on the basis that another active, permanent disability claim is pending. Should the statutory criteria for reopening be met, the reopened claim must be consolidated with the existing permanent disability claim as mandated by West Virginia Code § 23-4-16(e) (2005).” The second case heard by the Court was the employer’s appeal of Mr. Delbert’s permanent total disability award, which was granted following litigation. The Court found that the evidence was properly weighed an considered by the lower tribunals and affirmed the decision awarding Mr. Delbert’s PTD award.

http://www.courtswv.gov/supreme-court/docs/fall2022/20-0537%20and%2021-0944-wooton-p.pdf

For any questions, please contact:

Dill Battle

Spilman Thomas & Battle, PLLC

hdbattle@spilmanlaw.com

304-340-3800

TO: NWCDN STATE NEWS

FROM: Dill Battle, Spilman Thomas & Battle, PLLC

DATE: 09/26/2022

RE: West Virginia Workers' Compensation News – 4^th Quarter 2022

Intermediate Court of Appeals

The Intermediate Court of Appeals (ICA) started operations July 1, 2022, and has not issued any opinions. According to a report from the Workers’ Compensation Board of Review (BOR), since July 1, forty-two cases have been appealed to the ICA from the BOR.

 Supreme Court of Appeals

 The second term of the 2022 court year for the West Virginia Supreme Court of Appeals began September 7. The term ends in November. On September 19, 2022, the Court issued 18 memorandum decisions in workers’ compensation cases. http://www.courtswv.gov/supreme-court/opinions.html

On September 13, the Court held oral argument on a consolidated case in Charles Delbert v. Marshall County Coal Resources, Inc., No. 20-0537 and 21-0944. The case deals with W. Va. Code 23-4-16(e), which states that a claimant may only have one active request for a permanent disability award pending at any one time. Mr. Delbert filed an application for a PTD award. While the PTD issue was pending, he sought reopening of his Occupational Pneumoconiosis claim for additional PPD benefits and medical treatment. The claim administrator denied Mr. Delbert’s reopening request pursuant to W. Va. Code 23-4-16. Mr. Delbert argues that the claim administrator erred in denying medical treatment, when legislative policies mandate prompt medical treatment for OP. Because litigation is lengthy when seeking a PTD award, claimant asserts that the ruling is an absurd result. Mr. Delbert assets that W. Va. Code § 23-4-8d expressly allows for “a request for medical services, durable medical goods or other medical supplies in an occupational pneumoconiosis claim may be made at any time.” The second case is the employer’s appeal of Mr. Delbert’s PTD award, which was granted following litigation.

Reported Supreme Court Decisions

Timeliness of PTD Application

In Murray American Energy, Inc., v. Harshey, No. 20-0716, 2022 WL 4299577, (September 19, 2022) (memorandum decision), the issue before the Court was the timeliness of filing an application for permanent total disability benefits. Mr. Harshey was injured on January 20, 2012, when he was struck by a ram car. On March 7, 2014, he was granted a 14% permanent partial disability award for his psychiatric injuries. On November 10, 2015, the claims administrator granted a 39% permanent partial disability award for his physical injuries. The Office of Judges reversed the claims administrator’s November 10, 2015, decision and granted a 49% permanent partial disability award on November 15, 2017. On June 29, 2018, the Board of Review affirmed the Office of Judges’ Order. The decision was affirmed by the West Virginia Supreme Court on May 30, 2019. Murray American Energy, Inc., v. Harshey, No. 18-0676, 2019 WL 2406702 (W. Va. May 30, 2019) (memorandum decision). Less than a month after the Supreme Court’s decision, Mr. Harshey filed his Application for Permanent Total Disability Benefits on June 18, 2019, stating that he had been awarded a 49% and a 14% permanent partial disability award for his January 20, 2012, injury. The claims administrator denied the application for a permanent total disability award because it was untimely filed on July 5, 2019.

In its March 2, 2020, Order, the Office of Judges reversed the claims administrator’s denial of the claim and remanded the case with instructions to find Mr. Harshey’s application to be timely filed. The Office of Judges noted that West Virginia Code § 23-4-16(a)(1) provides that “in any claim that has been closed without the entry of an order regarding the degree of impairment, or in any claim closed on a no lost time basis, reopening requests must be filed within 5 years of the date of the closure. Only two reopening requests may be filed within that 5 year period.” Further, West Virginia Code § 23-4-16(a)(2) states “in any claim in which an award of permanent impairment has been made, reopening requests must be filed within 5 years of the date of the initial award. Only two reopening requests may be filed within that 5 year period.” Mr. Harshey was granted an initial permanent partial disability award on March 7, 2014. He filed his application for a permanent total disability award on June 18, 2019, clearly outside of the five year time period. Mr. Harshey argued his application should be considered timely based on equity and based on West Virginia Code § 23-4-16(e).

The Office of Judges found dispositive Mr. Harshey’s argument regarding West Virginia Code § 23-4-16(d). West Virginia Code § 23-4-16(e) states that “[a] claimant may have only one active request for a permanent disability award pending in a claim at any one time. Any new request that is made while another is pending shall be consolidated into the former request.” In the case at issue, Mr. Harshey was granted a 39% permanent partial disability award on November 10, 2015, at which point he was eligible to apply for a permanent total disability award. See W. Va. Code § 23-4-6(n)(1) (providing that in order to apply for a permanent total disability award, a claimant “must have been awarded the sum of fifty percent in prior permanent partial disability awards”). However, the decision was appealed to the Office of Judges, which reversed and granted a 49% permanent partial disability award. The employer then appealed the decision to the Board of Review and then to the Supreme Court. The Office of Judges rejected the employer’s argument that Mr. Harshey’s application for permanent partial total disability was untimely filed because he did not submit his application after the November 10, 2015, permanent partial disability award was granted. The Office of Judges reasoned that the November 10, 2015, 39% permanent partial disability award was a not final award because the decision was appealed and “there is no requirement which would cause the claimant to have to choose between whether he should forego his contention that he is entitled to a greater permanent partial disability award or whether an application for a permanent total disability award would be timely if the matter remains in litigation.” As the Office of Judges explained, “[s]ince the issue of the permanent partial disability award was not final, if the claimant had filed an application for a PTD award . . . then the application for PTD would not have been acted upon but would have been consolidated into the 39% PPD award issue.” Therefore, the Office of the Judges found that Mr. Harshey’s permanent partial disability award became final on May 30, 2019, when the West Virginia Supreme Court issued its ruling. Mr. Harshey filed his application for permanent total disability on June 18, 2019, and that application was received on July 5, 2019. Therefore, his application was timely and should be considered. The Board of Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed its Order on August 21, 2020.

The Supreme Court agreed with the reasoning and conclusions of the Office of Judges as affirmed by the Board of Review. West Virginia Code § 23-4-16(e) prevents a claimant from filing more than one claim for permanent disability at a time, whether that claim is for permanent total disability or permanent partial disability. Mr. Harshey in this case appealed his permanent partial disability award and was granted a greater award by the Office of Judges. The employer then appealed the decision to the Board of Review and the Supreme Court. In this time, the five year window for filing a claim for permanent total disability closed. However, as the Office of Judges found, the permanent partial disability award did not become final until the Supreme Court issued its ruling on May 30, 2019. See Murray American Energy, Inc., v. Harshey, No. 18-0676, 2019 WL 2406702 (W. Va. May 30, 2019) (memorandum decision). His application was timely filed because Mr. Harshey filed his application for permanent total disability less than a month later.

Compensability of CTS

In Bartram v. Coronado Group, LLC, No. 21-0479, 2022 WL 4299598 (W. Va. September 19, 2022) (memorandum decision), the issue before the Court was the compensability of carpal tunnel syndrome. Mr. Bartram was an equipment operator and alleged he developed carpal tunnel syndrome as a result of his job duties. A September 8, 2018, EMG, interpreted by Victor Jaramillo, M.D., showed entrapment neuropathy, mild on the left and moderate on the right, consistent with carpal tunnel syndrome. Cervical radiculopathy could not be ruled out. On February 21, 2019, Dr. Jaramillo found sensory deficit for pinprick and temperature in both hands and forearms upon examination. Tinel’s sign was positive in both wrists. He diagnosed polyneuropathy and carpal tunnel syndrome. C. Dale Cook, PA-C, with Family Healthcare Associates, Inc., saw Mr. Bartram on March 11, 2019, for bilateral hand pain and carpal tunnel syndrome. An EMG was positive for carpal tunnel syndrome. It was noted that Mr. Bartram was previously diagnosed with chronic lumbar pain and high cholesterol. The Employees’ and Physicians’ Report of Injury was completed on March 11, 2019, and indicates Mr. Bartram developed bilateral carpal tunnel syndrome as a result of his employment.

Mr. Bartram was a strip-mining equipment operator, and operated a loader, dozer, rock truck, and water truck. He also used hand tools. Samuel Muscari, D.O., opined Mr. Bartram developed carpal tunnel syndrome as a result of repetitive hand movements while operating heavy equipment. The employer presented evidence Mr. Bartram was a water truck operator, truck operator, loader operator, rock truck operator, and truck scale cleaner. He also picked up trash occasionally. Mr. Bartram drove a large rock truck with power steering and automatic shifting.

The employer also presented a Physician Review report by Rebecca Thaxton, M.D., in which she found that Mr. Bartram does not suffer from occupationally induced carpal tunnel syndrome. She noted that Mr. Bartram’s job duties involved driving various trucks and operating equipment. Mr. Bartram reported ten to twelve hours of continuous firm grip, bending, and rotating both wrists. She found that Mr. Bartram drove a large rock truck with power steering and shifting, and that there was no need to firmly grip the steering wheel because such trucks are manufactured to be easy to drive. The employer asserted that the wheel was as easy to turn as that in a normal vehicle. Further, Mr. Bartram’s job required a firm grip a few times a day. Mr. Bartram was required to occasionally tighten or loosen nozzles with wrenches but not frequently. Dr. Thaxton opined that Mr. Bartram’s job description was not consistent with an increased risk of development of carpal tunnel syndrome. The claims administrator rejected the claim on April 3, 2019.

Mr. Bartram testified in a September 17, 2019, deposition that he drove a water truck but had to run dozers and loaders sometimes. The loaders were operated with joysticks, and he had to operate one for six months when his water truck broke. Mr. Bartram stated that he also used hand tools to service equipment. Mr. Bartram testified that he currently has numbness and tingling in his hands that started three to five years prior. Mr. Bartram stated that he has high blood pressure and smoked cigarettes in the past. Mr. Bartram testified that his symptoms had not improved in the time that he had been off of work. A September 19, 2019, treatment note by Connie Cook, PA­C, indicates Mr. Bartram was seen for hand pain and was diagnosed with carpal tunnel syndrome.

Prasadarao Mukkamala, M.D., performed an Independent Medical Evaluation on September 23, 2020, in which he noted that Mr. Bartram stopped working due to back pain. He underwent left carpal tunnel release eight months prior. The symptoms ceased for two months and then returned. Mr. Bartram stated that his symptoms did not get better after he stopped working. Dr. Mukkamala opined that Mr. Bartram’s carpal tunnel syndrome was not the result of his occupational duties. He stated that the fact that Mr. Bartram’s symptoms did not improve when he quit working indicates his carpal tunnel syndrome was not the result of his occupational duties. Dr. Mukkamala opined that Mr. Bartram’s job duties do not involve the high force, repetitive movements and awkward positioning known to cause carpal tunnel syndrome. He noted nonoccupational risk factors in the form of obesity and generalized polyneuropathy.

The Office of Judges affirmed the claims administrator’s rejection of the claim in its November 30, 2020, Order. It found that the most comprehensive evaluation of record was the one performed by Dr. Mukkamala. Dr. Mukkamala stated that Mr. Bartram’s work activities were not the kind of forceful repetitive movements known to cause carpal tunnel syndrome. Further, Mr. Bartram’s symptoms did not improve when he ceased working. Dr. Mukkamala also noted that Mr. Bartram had confounding conditions in the form of obesity and polyneuropathy, which increase his risk for carpal tunnel syndrome. The Board of Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed its Order on May 20, 2021.

The Court agreed with the reasoning and conclusions of the Office of Judges as affirmed by the Board of Review. For an injury to be compensable it must be a personal injury that was received in the course of employment, and it must have resulted from that employment. Barnett v. State Workmen’s Comp. Comm’r, 153 W. Va. 796, 172 S.E.2d 698 (1970). West Virginia Code of State Rules § 85-20-41.5 provides that workers who perform high force, repetitive manual movements are at high risk for the development of carpal tunnel syndrome. West Virginia Code of State Rules § 85-20-41.4 states that confounding conditions, such as obesity, can precipitate carpal tunnel syndrome symptoms. The evidence indicates that Mr. Bartram’s work duties do not involve the kind of high force, repetitive movements known to cause carpal tunnel syndrome. Further, Mr. Bartram suffers from conditions known to contribute to the development of carpal tunnel syndrome.

Justice William R. Wooton dissented and would set the case for Rule 19 oral argument.

On April 28, 2022 the West Virginia Supreme Court of Appeals released its opinion in James A. Moore, Jr. v. ICG Tygart Valley, LLC creating a new rebuttable presumption for claimants in workers’ compensation claims involving the compensability of preexisting disease or injury.

The Court issued a new Syllabus Point in this reported decision: “A claimant’s disability will be presumed to have resulted from the compensable injury if: (1) before the injury, the claimant’s preexisting disease or condition was asymptomatic, and (2) following the injury, the symptoms of the disabling disease or condition appeared and continuously manifested themselves afterwards. There still must be sufficient medical evidence to show a causal relationship between the compensable injury and the disability, or the nature of the accident, combined with the other facts of the case, raises a natural inference of causation. This presumption is not conclusive; it may be rebutted by the employer.”

In Moore, the claimant was a shuttle car operator in the employer’s coal mine.  In November 2016, he was operating the shuttle car when the brakes locked up and he was thrown upward, hitting his head on the canopy of the car.  The claim was held compensable for right shoulder sprain, upper back strain, and neck pain.  He was initially treated conservatively for his neck pain and started physical therapy.

The next month, December 2016, the claimant had an MRI of the neck which showed degenerative disc disease (spondylosis) and disc abnormalities in his cervical spine, but he had no history of neck injuries or cervical radiculopathy.

In January 2017, the claimant’s treating physician diagnosed him with cervical sprain and cervical radicular pain.  The physician opined the injury exacerbated the preexisting cervical degenerative disc disease causing new symptoms, but she believed the condition was not compensable because there was no change in pathology.

In February and March 2017, the claimant continued to complain of constant neck pain with radiation to the right arm and right arm numbness.

In April 2017, the claimant saw a pain management physician who diagnosed C6 cervical radiculopathy.  The claimant received treatment for that condition through 2017 and into 2018.

In October 2017, the claimant’s treating physician said he was at maximum medical improvement (“MMI”) for neck pain so the claim was closed for temporary total disability (“TTD”) benefits and a 0% permanent partial disability (“PPD”) award was entered.

In March 2018, the claimant’s pain management physician wrote a letter stating the cervical radiculopathy was directly related to the compensable injury.  He said it was probable that the cervical radiculopathy would have occurred even in the absence of degenerative disc disease.

In May 2018, the claimant was evaluated by an orthopedic surgeon who assessed C6 cervical radiculopathy, and he performed an anterior cervical discectomy and fusion at C5-6.  The surgeon completed a diagnosis update form asking that C5-6 spondylosis with C6 radiculopathy (diagnosis code M47.22) be added as a compensable condition of the claim.[1]

The request was denied.

Dr. Guberman performed an independent medical examination (“IME”) in November 2018 and diagnosed chronic post-traumatic strain of the c spine with C6 cervical radiculopathy (diagnosis code M54.12).  He stated that the claimant’s cervical radicular symptoms and surgery were directly related to the compensable injury.

The West Virginia Workers’ Compensation Office of Judges of Judges (“OOJ”) affirmed the claim administrator’s denial of the request to add C5-6 spondylosis with C6 radiculopathy as a compensable condition.  The West Virginia Workers’ Compensation Board of Review affirmed.

The West Virginia Supreme Court of Appeals noted that the claimant had asked the OOJ to add cervical radiculopathy as a compensable diagnosis.  The Court noted that the OOJ had the statutory authority to rule on the request and modify the order of the claims administrator pursuant to W. Va. Code § 23-5-9(d)[2], but the OOJ abdicated its responsibility and defaulted to the diagnostic code listed on the form ignoring the reference to the physician’s notes that supported the claimant’s request.

The Court found that the claimant’s work injury aggravated his degenerative disc disease, which was previously asymptomatic, causing cervical radiculopathy.  The Court held that a claimant’s disability will be presumed to have resulted from the compensable injury if: (1) before the injury, the claimant’s preexisting disease or condition was asymptomatic, and (2) following the injury, the symptoms of the disabling disease or condition appeared and continuously manifested themselves afterwards. There still must be sufficient medical evidence to show a causal relationship between the compensable injury and the disability, or the nature of the accident, combined with the other facts of the case, raises a natural inference of causation. This presumption is not conclusive; it may be rebutted by the employer.

In the Moore case, the Court found the evidence showed that the claimant’s degenerative disc disease was asymptomatic, and that the compensable injury caused him to develop cervical radiculopathy, a new distinct injury.  The Court also noted that three (3) physicians opined the cervical radiculopathy was causally connected to the compensable injury.  Also, the claimant’s own treating physician stated that the injury triggered the condition leading to cervical radicular pain.

As a result, the Court reversed and remanded the case to add C6 cervical radiculopathy (diagnosis code M54.12), reopen TTD, and determine whether Claimant was entitled to a PPD award.

Although the Moore case creates new law, it does not significantly change the way a claim should be handled.

West Virginia claimants will have to meet certain threshold showings before the new rebuttable presumption is invoked.  Now, a claimant is going to have to show that before the injury, the claimant’s preexisting disease or condition was asymptomatic and that, following the compensable injury, the symptoms or disability first manifested and continuously manifested.  The Court distinguished the situation of when the claimant had been chronically symptomatic from the situation of new onset of radiculopathy that had not manifested previously. The Court also distinguished between the condition/diagnosis vs. the disability.  The condition/diagnosis of spondylosis was not compensable, it was just the disability/radiculopathy that was compensable.

This case raises several questions and issues that must be considered in the future.  First, the definition of “continuously” will likely be litigated as the Court did not define it.  What is “continuously?”  Is it 24 hours a day, 7 days a week?  Is it every week?  Does it mean the new symptoms must be noted at every physician appointment, or will a medical record notation once every few months suffice? 

Second, how soon must the new symptoms appear after the injury in order to be compensable?  Does the onset have to be simultaneous with the injury?  What if the new disability does not arise until a week later?  A month later?  The Moore case did not specify whether the onset of the claimant’s radiculopathy was simultaneous with the initial injury.  If it was simultaneous, there is a risk for future cases that a delayed onset could expand the Court’s holding.  Part of the path forward for defense strategies is to ensure the invocation of the new rebuttable presumption does not neglect the required medical showing of a causal relationship between the compensable injury and the disability.

In the post-Moore world of workers’ compensation, it will be as important as ever to look for any prior symptoms for degenerative conditions when considering the compensability of radiculopathy after a strain.  Claimants may be able to establish that their preexisting degenerative conditions were asymptomatic by testifying they never had previously complained about those symptoms.  This is why it is imperative to collect claimants’ medical records (both current and past) after receiving a WC-1.  Not only do medical records often show claimants had pre-existing degenerative changes, but they also often show treatment for similar symptoms that claimants’ claim only manifested after the compensable injury

If a claimant requests a new condition be added as a compensable condition and the claimant is able to meet (1) and (2) of the rebuttable presumption but there is concern about medical causation, withhold a decision on compensability and send the claimant for a medical evaluation or obtain a medical record review.  It is important to remember the Moore decision does NOT prevent the employer from obtaining an expert opinion that the incident described could not have caused the claimant’s further disability.  Obtain a physician opinion to show there is no medical evidence of a causal relationship between the compensable injury and the disability.

If a claimant requests to add “spondylosis with radiculopathy” and you know that spondylosis is a degenerative condition but it was asymptomatic and the radiculopathy only began after the work injury, and medical causation is present, then it will be helpful to tailor the compensability decision to state that spondylosis is a degenerative condition that preexisted the compensable injury and the only accepted compensable condition is radiculopathy.  When future claims on point with the Moore decision enter litigation, practitioners must argue that the degenerative condition cannot be added to the claim, just the new condition.

By:

Charity Lawrence

304-720-4056

clawrence@spilmanlaw.com

Dill Battle

304-340-3823

dbattle@spilmanlaw.com

Spilman Thomas & Battle, PLLC

300 Kanawha Blvd, E.

Charleston, WV 25301

Spilman Thomas & Battle, PLLC is the West Virginia member of the National Workers' Compensation Defense Network. The NWCDN is a nationwide network of defense firms specializing in protecting employers and carriers in workers' compensation claims and regulatory matters. For more information, visit www.nwcdn.com.

Legislative News

The 2022 West Virginia Legislature session surprisingly had a quiet finish despite the Republican supermajority and a bold attempt to fundamentally change intentional torts for workplace injuries. The House and the Senate proposed separate bills to completely change the definition of deliberate intent, commonly known as Mandolidis actions based on the seminal West Virginia case and resultant legislation. Ultimately the bills did not pass out of committee, so the 2015 amendments to West Virginia Code § 23-4-2 remain in place.

The Legislature passed an important and long-overdue bill sponsored by the Insurance Commissioner. House Bill 4296 cleaned up and revised outdated provisions within Chapter 23 of the West Virginia Code, which pertains to workers’ compensation. The bill modernized and updated workers’ compensation statutes, removed or revised provisions made obsolete by legislation and regulatory revisions in 2005 and 2006.

Recent Cases

The West Virginia Supreme Court of Appeals continues to analyze compensability in workers' compensation claims where the question is whether an injured employee's disabling condition was caused by a preexisting chronic condition or by a new injury. The Court is exploring the application of its holding in Syllabus Point 3 of Gill v. City of Charleston, 236 W. Va. 737, ___, 783 S.E.2d 857, 858 (2016)("A noncompensable preexisting injury may not be added as a compensable component of a claim for workers' compensation medical benefits merely because it may have been aggravated by a compensable injury. To the extent that the aggravation of a noncompensable preexisting injury results in a discreet new injury, that new injury may be found compensable.")

In Ramaco Resources, Inc. v. Rollins, No. 19-1163, 2021 WL 5216712, at *4 (November 9, 2021)(memorandum decision), the Court found the preponderance of evidence demonstrated Mr. Rollins aggravated a noncompensable wrist fracture while at work, and reversed the Board of Review and the Administrative Law Judge because they did not properly apply the Gill case. Rollins injured his right wrist at work on April 20, 2018. His employer questioned compensability because Rollins fractured the right wrist at home on January 5, 2018, and had recently returned to work when the new injury occurred. After the January 5 injury at home, Rollins had surgery on January 9, 2018, and completed physical therapy. He reported some stiffness and weakness in the wrist on April 2, 2018. His doctor stated he could return to work on April 9, 2018, without restrictions. Mr. Rollins returned to work full duty. On April 20, 2018, Mr. Rollins injured the same right wrist at work while loosening a bolt with a ratchet on a piece of heavy equipment. At the emergency room he reported that his right wrist popped while he was loosening a bolt with a pipe wrench. An x-ray showed a slightly impacted fracture at the volar aspect of the distal radial metaphysis. The diagnosis was right wrist fracture.

Claimant was treated by Dr. McCleary on April 23, 2018, who noted that Rollins had swelling and tenderness in the distal radius. Dr. McCleary also noted that an x-ray showed a nondisplaced distal radius fracture. He diagnosed a right wrist ulnar joint sprain. Dr. Mukkamala performed an independent medical evaluation of Mr. Rollins and determined he did not sustain a new injury on April 20, 2018. The x-ray performed on April 30, 2018, showed that the fracture was still visible and healing. Dr. Mukkamala believed Mr. Rollins prior right wrist fracture had not completely healed when the work incident occurred. He also noted that the x-rays revealed osteopenia, which was noncompensable.

A board-certified radiologist compared the x-rays taken on Mr. Rollins' right wrist on January 5, March 5, and April 20, 2018 and concluded that a January 5, 2018, right wrist x-ray (performed three months prior to the alleged work injury) showed an acute fracture of the distal radius and x-rays performed on April 20, 2018, showed a slightly impacted fracture of the distal radius. Dr. Luchs concluded that the x-rays showed a chronic healing distal radial fracture. Based on Dr. Luchs' findings, Dr. Stoll agreed with Dr. Mukkamala's assessment of Mr. Rollins did not sustain a new injury on April 20, 2018. Dr. Stoll believes that Mr. Rollins' initial fracture had not fully healed before he returned to work. Dr. Stoll also stated that the x-rays revealed osteopenia, which was non-compensable. Finally, he noted that while the treating physician was requesting authorization for an MRI, an MRI would not add any information to help the decision making process.

Ramaco first argues that the Board of Review's Order upholding the ALJs' compensability ruling is clearly wrong and contrary to the preponderance of the evidence. Ramaco states that substantial medical evidence shows that Mr. Rollins's noncompensable, wrist fracture of January 5, 2018, had not healed by the time he allegedly injured himself at work on April 20, 2018. Ramaco states that Dr. Luchs, Dr. Mukkamala, and Dr. Stoll all stated that Mr. Rollins merely aggravated a previous noncompensable injury. Mr. Rollins responds that simply because he suffered a prior fracture to the same body part does not now immunize Ramaco from responsibility in this claim. And Mr. Rollins contends that it is clear he was injured at work on April 20, 2018, considering he promptly reported the injury and sought medical attention. Mr. Rollins states that it was proper for the ALJ and the Board of Review to give considerable weight to the medical opinion of Dr. McCleary who provided treatment for his compensable injury and the prior wrist fracture.

The majority opinion of the Supreme Court found the x-ray evidence "critical" because the case involved a wrist fracture. The Court noted Dr. Luchs's review of the x-rays taken of Mr. Rollins's right wrist on January 5, March 5, and April 20, 2018, and determination that the January 2018 fracture had not healed as of April 20, 2018. Dr. Luchs stated, unequivocally, that the abnormalities revealed by the x-rays taken of Mr. Rollins's wrist following the injury of April 20, 2018, including the fracture of the distal radius, date back to January 2018. The Court found the administrative law judge "erroneously discounted this objective x-ray evidence in lieu of Dr. McCleary's self-serving, subjective belief." Importantly, the Court found, Dr. Luchs' findings are entirely consistent with the evaluation findings rendered by Drs. Mukkamala and Stoll. Inferring that Dr. McCleary subjectively believed that Mr. Rollins's fracture was completely healed, and that Mr. Rollins suffered a new injury, Dr. McCleary's belief is insufficient to support the compensability ruling when the other experts produced evidence showing that Mr. Rollins merely aggravated the preexisting injury.

The Court held that even when all inferences are resolved in favor of the ALJ's and Board of Review's findings, there is insufficient evidence to sustain the decision. The Court agreed with the Employer's argument the ALJ and Board of Review erred by failing to cite or discuss this Court's holding in Gill. "Because a preponderance of the evidence in this case demonstrates that Mr. Rollins aggravated his noncompensable wrist fracture while at work on April 20, 2018, Gill is a barrier to compensability. So, the [ALJ] and Board of Review committed legal error by failing to apply Gill to the facts presented." Ramaco Resources, Inc. v. Rollins, 2021 WL 5216712, at *5 (W.Va., 2021).

In a separate concurring opinion, Justice Jenkins and Justice Armstead noted the dissenting opinion mischaracterized the Court's comprehensive review of the record and its finding Rollins merely aggravated a preexisting injury to his right wrist.

Justice Wooton and Justice Hutchison wrote separate and strongly worded dissenting opinions. Justice Hutchison said the majority's opinion "violates the fundamental process due to every party in a lawsuit" when it substituted its findings of fact for those of the lower tribunal merely because it disagrees with those findings. Justice Hutchison note the Court should give substantial deference to the findings of fact of the administrative law judge that claimant presented sufficient evidence he suffered a personal injury in the course of and resulting from his employment.  He noted the ALJ rejected the expert testimony offered by the employer in favor of the expert testimony offered by the claimant, and concluded that the claimant sustained a new, compensable injury to his wrist. "The ALJ's conclusion was plausible on the record below, and that should have been the end of this Court's inquiry. The record clearly supports the ALJ's factual finding, as well as supports the Board of Review's affirmance of the judge's decision. The majority decision was clearly wrong in its decision to impose its after-the-fact judgment of the evidence. The fact that a claimant may have suffered a prior fracture to the same body part as the one injured in the workplace should not immunize an employer from responsibility for the claim. I respectfully dissent from this memorandum decision's subversion of the fact-finding process." Ramaco Resources, Inc. v. Rollins, 2021 WL 5216712, at *9 (W.Va., 2021)(Hutchison, J. dissenting).

In his dissenting opinion, Justice Wooton clarified his belief the evidence before the ALJ supported a finding Rollins suffered a discrete new injury to the healed right wrist fracture:

"Mr. Rollins' treating orthopedic surgeon testified that he was certain Mr. Rollins sustained a discrete, new injury on that date as evidenced by 1) the immediate pain and swelling; 2) the passage of time from the prior injury, which allowed for complete healing; 3) the greater amount of displacement of the fracture from the first fracture, as shown on x-ray; and 4) an MRI which showed the distal radius fracture in a “different formation” than the first fracture." Ramaco Resources, Inc. v. Rollins, 2021 WL 5216712, at *9 (W.Va., 2021) (Wooton, J. dissenting). He dissented because the majority made itself "a surrogate fact-finder" in contravention of West Virginia law.

The Supreme Court held oral argument on February 16, 2022, in the case of James Moore v. ICG Tygart Valley, LLC, No. 20-0028 in which the issue for resolution is the compensability of C5-6 spondylosis with C6 radiculopathy as secondary conditions. Claimant's counsel argued the initial work injury caused a discrete new injury that resulted in chronic cervical and radicular pain. Claimant's counsel also argued the work injury aggravated or accelerated the preexisting disc disease. The Employer argued the C5-6 spondylosis with C6 radiculopathy was a condition that preexisted the work injury and was not a discrete new injury. Both parties discussed the impact of the Gill case to the evidentiary record in their briefs and at oral argument. A decision has not been issued. You can watch the oral argument at http://www.courtswv.gov/supreme-court/calendar/2022/Dockets/feb-16-22ad.html

By Charity Lawrence and Dill Battle

              The 2021 West Virginia Legislative Session produced a major change for West Virginia workers’ compensation litigation in the West Virginia Appellate Reorganization Act of 2021.  Specifically, Senate Bill 275 was enacted and creates an Intermediate Court of Appeals for West Virginia.  It also eliminates the Workers’ Compensation Office of Judges (“OOJ”) and establishes the West Virginia Workers’ Compensation Board of Review (“BOR”) as the initial reviewing body for objections to decisions made by insurers regarding workers’ compensation claims.

              After June 30, 2022, the OOJ will be eliminated and, effective July 1, 2022, all powers and duties of the OOJ will be transferred to the BOR.  (W. Va. Code § 23-1-1h). After this date, all objections to decisions of the Insurance Commissioner, private carrier, or self-insured employer, must be filed with the BOR instead of the OOJ.  The BOR will have exclusive jurisdiction to review objections to a decision of the Insurance Commissioner, private carrier, or self-insured employer.  (W. Va. Code § 23-5-8b).  Instead of the 3 member-panel currently comprising the BOR, the BOR will consist of 5 members appointed by the Governor.  (W. Va. Code § 23-5-11a).

              The OOJ will officially terminate on or before October 1, 2022.  (W. Va. Code § 23-5-8a).  On or before September 30, 2022, the OOJ must issue a final decision or otherwise dispose of each matter pending before the OOJ.  (W. Va. Code § 23-5-8b(b)).  If a final decision on any pending matter before the OOJ has not been entered at the time of the OOJ’s termination, that matter will be transferred to the BOR.  (W. Va. Code § 23-5-8a).  For transferred matters, the BOR will adopt any existing records of proceedings from the OOJ, conduct further proceedings, and collect evidence necessary to issue a final decision.  (W. Va. Code § 23-5-8b(b)).  The BOR must review and decide all remaining appeals filed with the BOR regarding OOJ decisions issued prior to June 30, 2022.  (W. Va. Code § 23-5-8b(e)).

              The chair of the BOR shall assign, on a rotating basis, a member of the BOR to preside over the review process and issue a decision in each objection (formerly referred to as a “protest”) properly filed with the BOR.  (W. Va. Code § 23-5-9a).  That board member may delegate his or her duties to a hearing examiner employed by the BOR, but any order or decision of the BOR (except time frame orders, continuance orders, etc.) must be issued and signed by the BOR member assigned to the objection.  (W. Va. Code § 23-5-9a).  Hearing examiners must be persons admitted to the practice of law in West Virginia with at least 4 years of experience as an attorney.  (W. Va. Code § 23-5-8a).  The chair of the BOR will supervise hearing examiners.  (W. Va. Code § 23-5-8a).  If a hearing examiner is assigned to review an objection, the hearing examiner will submit the designated record at the end of the review process to the member of the BOR who was assigned the objection, along with the hearing examiner’s recommendation of a decision affirming, reversing, or modifying the action protested.  (W. Va. Code §23-5-9a).  The board member will render a decision with findings of fact and conclusions of law.  (W. Va. Code § 23-5-9a). 

              An appeal from a BOR decision may be filed with the West Virginia Intermediate Court of Appels within 30 days of receipt of notice of the BOR decision or within 60 days of the date of the decision, regardless of notice.  (W. Va. Code § 23-5-10a).  Any employer, employee, claimant, dependent, or the Insurance Commissioner, private insurer, or self-insured employer aggrieved by a BOR decision has a right to appeal to the Intermediate Court by filing a written notice of appeal stating the grounds for review and whether oral argument is requested.  (W. Va. Code § 23-5-12a).  A filing fee of $200 may be charged to the petitioner.  (W. Va. Code § 51-11-7).  Upon appeal to the Intermediate Court, the Workers’ Compensation BOR will then send a transcript of BOR proceedings to the Intermediate Court, including a brief recital of the proceedings in the matter and each order or decision entered.  (W. Va. Code § 23-5-12a).

              The WV Intermediate Court of Appeals will have exclusive jurisdiction of:

·       decisions or orders issued by the OOJ after June 30, 2022 and prior to the OOJ’s termination, and

·       final orders or decisions issued by the BOR after June 30, 2022.

(W. Va. Code § 23-1-1h).  The Intermediate Court may affirm, reverse, modify, or supplement the decision of the BOR.  (W. Va. Code § 23-5-12a).  It may also remand the case for further proceedings.  (W. Va. Code § 23-5-12a).  A decision of the BOR will be reversed, vacated or modified if the substantial rights of the petitioner have been prejudiced because the BOR’s findings are:

·       in violation of statutory provisions;

·       in excess of the statutory authority or jurisdiction of the BOR;

·       made upon unlawful procedures;

·       affected by other error of law;

·       clearly wrong in view of the reliable, probative, and substantial evidence on the whole record; or

·       arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

(W. Va. Code § 23-5-12a).  An appeal of the Intermediate Court’s final decision may be sought by petition to the Supreme Court of Appeals of West Virginia.  (W. Va. Code § 29A-6-1).  The Supreme Court has discretion to grant or deny the petition for appeal of an Intermediate Court decision.  (W. Va. Code § 51-11-10).

              The Intermediate Court will be comprised of a three-judge panel.  (W. Va. Code § 51-11-3). Initially, the judges will be appointed by the Governor, with the advice and consent of the Senate.  Then, after the initial appointment by the Governor, the judges will be elected.  (W. Va. Code § 3-1-16, § 3-5-6e, and § 51-11-6).  The judges of the Intermediate Court must be members in good standing of the West Virginia State Bar and admitted to practice law in West Virginia for at least 10 years prior to their appointment or election, and also be residents of West Virginia for 5 years prior to appointment or election.  (W. Va. Code § 51-11-3). 

              This new legislation impacts workers’ compensation in several ways.  Eliminating the OOJ potentially eliminates experienced administrative law judges with significant knowledge (15-25 years) in workers’ compensation jurisprudence, and the practice in West Virginia.  New practice and procedure rules before the new BOR provides uncertainty of what parts of the OOJ's rules of practice and procedure will be adopted. The BOR’s ability to hire hearing examiners with only 4 years of legal experience and without workers’ compensation litigation experience may be detrimental to decisions affecting claimants, employers and insurers. However, the hearing examiners’ recommendations are not final decisions and must be reviewed by the BOR members, and the BOR members must issue the final decisions.  The hearing examiners will also be supervised by the BOR chair.  Hopefully, this will prevent the issuance of uneducated decisions.  Additionally, the new implementation of a $200 filing fee for appeals to the Intermediate Court will likely discourage claimants from appealing decisions of the Board of Review, which will decrease the overall number of workers’ compensation appeals.  SB 275 passed April 1, 2021, and is effective 90 days from passage (June 30, 2021).  The bill was sent to Governor Jim Justice on April 5, 2021, and is expected to be signed.

By:

Charity Lawrence

304-720-4056

clawrence@spilmanlaw.com

Dill Battle

304-340-3823

dbattle@spilmanlaw.com

Spilman Thomas & Battle, PLLC

300 Kanawha Blvd, E.

Charleston, WV 25301

Spilman Thomas & Battle, PLLC is the West Virginia member of the National Workers' Compensation Defense Network. The NWCDN is a nationwide network of defense firms specializing in protecting employers and carriers in workers' compensation claims and regulatory matters. For more information, visit www.nwcdn.com.

Some West Virginia businesses have implemented COVID-19 vaccine mandates for employees. While the West Virginia COVID-19 Jobs Protection Act (W. Va. Code § 55-19-1 through § 55-19-9) protects people, businesses, and entities from some COVID-19 related claims, the Act does not address whether employees who suffer an injury from a COVID-19 vaccine mandated by their employers may bring a workers' compensation claim. This issue has not yet come before West Virginia courts and there is no state case law on the subject.

To receive benefits under West Virginia workers’ compensation law, an employee must show the employee sustained (1) a personal injury (2) in the course of employment and (3) resulting from that employment. W. Va. Code §23-4-1(a). Arguably, if a COVID-19 vaccine is a required condition of employment and an employee receives the vaccine pursuant to that mandate, an employee injured by the vaccine may be able to show that they were injured in the course of and as a result of that employment. Relevant factors may include whether the vaccine was received by the employee on-site and during work hours or on the employee’s personal time and at a different location other than the employee’s work location.  

Vaccine injuries are rare, and even if the employer mandates the vaccine, causation may be difficult to prove. The employee must prove that the injury was a direct result of the vaccine rather than some other source. Because of the rarity of COVID-19 vaccine injuries beyond the typical vaccine after-effects (sore arm, fever, mild symptoms), true injury resulting from an employer-mandated COVID-19 vaccine will likely be infrequent and difficult to attribute to the vaccine. Workers’ compensation insurance carriers and third-party administrators should require proof of a definitive diagnosis or injury directly related to the COVID-19 vaccine before holding the injury compensable.

While some employees may attempt to avoid the exclusive remedies provided by workers' compensation by asserting a deliberate intent claim, the West Virginia COVID-19 Jobs Protection Act may insulate employers from such claims. The Act specifically insulates employers from deliberate intent claims for COVID-19 infections and may also apply to injuries from vaccine mandates. This issue has not been litigated in West Virginia.

Employers should also be mindful of the West Virginia Legislature's recent passage of House Bill 335 that will allow employees to obtain medical or religious exemptions from their employers’ vaccine mandates. The bill was signed by Governor Jim Justice on October 22, 2021, and will go into effect 90 days thereafter.

By:

Charity Lawrence

304-720-4056

clawrence@spilmanlaw.com

Dill Battle

304-340-3823

dbattle@spilmanlaw.com

Spilman Thomas & Battle, PLLC

300 Kanawha Blvd, E.

Charleston, WV 25301

Spilman Thomas & Battle, PLLC is the West Virginia member of the National Workers' Compensation Defense Network. The NWCDN is a nationwide network of defense firms specializing in protecting employers and carriers in workers' compensation claims and regulatory matters. For more information, visit www.nwcdn.com.

West Virginia's COVID-19 Jobs Protection Act

By Charity Lawrence, Spilman Thomas & Battle, PLLC

The West Virginia Legislature passed the “COVID-19 Jobs Protection Act” (W. Va. Code § 55-19-1 through § 55-19-9) which prohibits certain claims against people, businesses, and entities arising from COVID-19 exposure. The Act recognizes lawsuits are being filed across the country against health care providers, health care facilities, and businesses for COVID-19 exposure. These lawsuits threaten the reopening efforts of West Virginia businesses. (W. Va. Code § 55-19-2.)

In order to facilitate and encourage the reopening and rebuilding of West Virginia’s economy, the COVID-19 Jobs Protection Act eliminates the liability of West Virginia citizens, health care providers and facilities, higher education institutions, businesses, and manufacturers, for loss, damage, personal injury, or death arising from COVID-19.  (W. Va. Code § 55-19-2.) No claims may be brought against any person, business, entity, health care facility or provider, first responder, or volunteer for loss, damage, physical injury or death arising from COVID-19, COVID-19 healthcare, or impacted healthcare (care that is offered, postponed, delayed or adversely affected as a response to COVID-19 or as a result of COVID-19).  (W. Va. Code § 55-19-4.)

Any person or business that makes or provides products in response to COVID-19 that are used by any person, healthcare provider, etc. will not be liable for personal injury, death, or property damage caused by or resulting from the products.  (W. Va. Code § 55-19-5(a)).  Likewise, any person who makes, provides, or donates household disinfecting or cleaning supplies or personal protective equipment in response to COVID-19 that does not ordinarily make such products in the ordinary course of the person’s business will not be liable for any personal injury, death or property damage resulting from the products.  (W. Va. Code § 55-19-5(b).) However, the person may be liable if the person had actual knowledge of a product defect when the product was used as intended, and acted with conscious, reckless, and outrageous indifference to a substantial and unnecessary risk that the product would cause serious injury, or if the person acted with actual malice.  (W. Va. Code § 55-19-5(c).)  The statute of limitations for those claims is one (1) year after the injury or death.  (W. Va. Code § 55-19-5(d).)

Although employees may file workers’ compensation claims for COVID-19, the COVID-19 Jobs Protection Act specifically states that deliberate intent claims for COVID-19 cannot be filed against employers. (W. Va. Code § 55-19-6.)

The COVID-19 Jobs Protection Act was signed by West Virginia Governor Jim Justice. The law is retroactive and applies to all causes of action accruing on or after January 1, 2020.  (W. Va. Code § 55-19-9.)

By:

Charity Lawrence

304-720-4056

clawrence@spilmanlaw.com

Spilman Thomas & Battle, PLLC

300 Kanawha Blvd, E.

Charleston, WV 25301

Spilman Thomas & Battle, PLLC is the West Virginia member of the National Workers' Compensation Defense Network. The NWCDN is a nationwide network of defense firms specializing in protecting employers and carriers in workers' compensation claims and regulatory matters. For more information, visit www.nwcdn.com.

West Virginia's New Intermediate Appellate Court Fundamentally Changes

Workers' Compensation Litigation Practice

By Charity Lawrence and Dill Battle

              The 2021 West Virginia Legislative Session produced a major change for West Virginia workers’ compensation litigation in the West Virginia Appellate Reorganization Act of 2021.  Specifically, Senate Bill 275 was enacted and creates an Intermediate Court of Appeals for West Virginia.  It also eliminates the Workers’ Compensation Office of Judges (“OOJ”) and establishes the West Virginia Workers’ Compensation Board of Review (“BOR”) as the initial reviewing body for objections to decisions made by insurers regarding workers’ compensation claims.

              After June 30, 2022, the OOJ will be eliminated and, effective July 1, 2022, all powers and duties of the OOJ will be transferred to the BOR.  (W. Va. Code § 23-1-1h). After this date, all objections to decisions of the Insurance Commissioner, private carrier, or self-insured employer, must be filed with the BOR instead of the OOJ.  The BOR will have exclusive jurisdiction to review objections to a decision of the Insurance Commissioner, private carrier, or self-insured employer.  (W. Va. Code § 23-5-8b).  Instead of the 3 member-panel currently comprising the BOR, the BOR will consist of 5 members appointed by the Governor.  (W. Va. Code § 23-5-11a).

              The OOJ will officially terminate on or before October 1, 2022.  (W. Va. Code § 23-5-8a).  On or before September 30, 2022, the OOJ must issue a final decision or otherwise dispose of each matter pending before the OOJ.  (W. Va. Code § 23-5-8b(b)).  If a final decision on any pending matter before the OOJ has not been entered at the time of the OOJ’s termination, that matter will be transferred to the BOR.  (W. Va. Code § 23-5-8a).  For transferred matters, the BOR will adopt any existing records of proceedings from the OOJ, conduct further proceedings, and collect evidence necessary to issue a final decision.  (W. Va. Code § 23-5-8b(b)).  The BOR must review and decide all remaining appeals filed with the BOR regarding OOJ decisions issued prior to June 30, 2022.  (W. Va. Code § 23-5-8b(e)).

              The chair of the BOR shall assign, on a rotating basis, a member of the BOR to preside over the review process and issue a decision in each objection (formerly referred to as a “protest”) properly filed with the BOR.  (W. Va. Code § 23-5-9a).  That board member may delegate his or her duties to a hearing examiner employed by the BOR, but any order or decision of the BOR (except time frame orders, continuance orders, etc.) must be issued and signed by the BOR member assigned to the objection.  (W. Va. Code § 23-5-9a).  Hearing examiners must be persons admitted to the practice of law in West Virginia with at least 4 years of experience as an attorney.  (W. Va. Code § 23-5-8a).  The chair of the BOR will supervise hearing examiners.  (W. Va. Code § 23-5-8a).  If a hearing examiner is assigned to review an objection, the hearing examiner will submit the designated record at the end of the review process to the member of the BOR who was assigned the objection, along with the hearing examiner’s recommendation of a decision affirming, reversing, or modifying the action protested.  (W. Va. Code §23-5-9a).  The board member will render a decision with findings of fact and conclusions of law.  (W. Va. Code § 23-5-9a). 

              An appeal from a BOR decision may be filed with the West Virginia Intermediate Court of Appels within 30 days of receipt of notice of the BOR decision or within 60 days of the date of the decision, regardless of notice.  (W. Va. Code § 23-5-10a).  Any employer, employee, claimant, dependent, or the Insurance Commissioner, private insurer, or self-insured employer aggrieved by a BOR decision has a right to appeal to the Intermediate Court by filing a written notice of appeal stating the grounds for review and whether oral argument is requested.  (W. Va. Code § 23-5-12a).  A filing fee of $200 may be charged to the petitioner.  (W. Va. Code § 51-11-7).  Upon appeal to the Intermediate Court, the Workers’ Compensation BOR will then send a transcript of BOR proceedings to the Intermediate Court, including a brief recital of the proceedings in the matter and each order or decision entered.  (W. Va. Code § 23-5-12a).

              The WV Intermediate Court of Appeals will have exclusive jurisdiction of:

·       decisions or orders issued by the OOJ after June 30, 2022 and prior to the OOJ’s termination, and

·       final orders or decisions issued by the BOR after June 30, 2022.

(W. Va. Code § 23-1-1h).  The Intermediate Court may affirm, reverse, modify, or supplement the decision of the BOR.  (W. Va. Code § 23-5-12a).  It may also remand the case for further proceedings.  (W. Va. Code § 23-5-12a).  A decision of the BOR will be reversed, vacated or modified if the substantial rights of the petitioner have been prejudiced because the BOR’s findings are:

·       in violation of statutory provisions;

·       in excess of the statutory authority or jurisdiction of the BOR;

·       made upon unlawful procedures;

·       affected by other error of law;

·       clearly wrong in view of the reliable, probative, and substantial evidence on the whole record; or

·       arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

(W. Va. Code § 23-5-12a).  An appeal of the Intermediate Court’s final decision may be sought by petition to the Supreme Court of Appeals of West Virginia.  (W. Va. Code § 29A-6-1).  The Supreme Court has discretion to grant or deny the petition for appeal of an Intermediate Court decision.  (W. Va. Code § 51-11-10).

              The Intermediate Court will be comprised of a three-judge panel.  (W. Va. Code § 51-11-3). Initially, the judges will be appointed by the Governor, with the advice and consent of the Senate.  Then, after the initial appointment by the Governor, the judges will be elected.  (W. Va. Code § 3-1-16, § 3-5-6e, and § 51-11-6).  The judges of the Intermediate Court must be members in good standing of the West Virginia State Bar and admitted to practice law in West Virginia for at least 10 years prior to their appointment or election, and also be residents of West Virginia for 5 years prior to appointment or election.  (W. Va. Code § 51-11-3). 

              This new legislation impacts workers’ compensation in several ways.  Eliminating the OOJ potentially eliminates experienced administrative law judges with significant knowledge (15-25 years) in workers’ compensation jurisprudence, and the practice in West Virginia.  New practice and procedure rules before the new BOR provides uncertainty of what parts of the OOJ's rules of practice and procedure will be adopted. The BOR’s ability to hire hearing examiners with only 4 years of legal experience and without workers’ compensation litigation experience may be detrimental to decisions affecting claimants, employers and insurers. However, the hearing examiners’ recommendations are not final decisions and must be reviewed by the BOR members, and the BOR members must issue the final decisions.  The hearing examiners will also be supervised by the BOR chair.  Hopefully, this will prevent the issuance of uneducated decisions.  Additionally, the new implementation of a $200 filing fee for appeals to the Intermediate Court will likely discourage claimants from appealing decisions of the Board of Review, which will decrease the overall number of workers’ compensation appeals.  SB 275 passed April 1, 2021, and is effective 90 days from passage (June 30, 2021).  The bill was sent to Governor Jim Justice on April 5, 2021, and is expected to be signed.

By:

Charity Lawrence

304-720-4056

clawrence@spilmanlaw.com

Dill Battle

304-340-3823

dbattle@spilmanlaw.com

Spilman Thomas & Battle, PLLC

300 Kanawha Blvd, E.

Charleston, WV 25301

Spilman Thomas & Battle, PLLC is the West Virginia member of the National Workers' Compensation Defense Network. The NWCDN is a nationwide network of defense firms specializing in protecting employers and carriers in workers' compensation claims and regulatory matters. For more information, visit www.nwcdn.com.