State News : West Virginia

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West Virginia




FROM: Dill Battle, Spilman Thomas & Battle, PLLC

DATE: 02/01/2023

RE: West Virginia Workers' Compensation News – 1st 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:


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


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.


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.



For any questions, please contact:

Dill Battle

Spilman Thomas & Battle, PLLC