State News : West Virginia

A Second Bite of the Lemon in West Virginia - Appellate Review and Aggravation of Preexisting Injury

In Arch Coal, Inc. v. Lemon, No. 17-0152, 2018 WL 2470654 (W. Va. May 30, 2018), the Court took the unusual procedural step to reverse a prior ruling and granted the appellant's motion for reconsideration of the Court's memorandum decision. The West Virginia Supreme Court of Appeals ruled the Court's prior opinion, reversing a decision by Worker's Compensation Board of Review, incorrectly applied the
appellate standard of review. Therefore, the court affirmed the Board of Review's decision that the claimant's injury was compensable.
This case is important to carriers for two reasons. First, the court clarifies the "discreet new injury" argument by applying the theory to new facts and rearticulating the rule. Second, the finding provides an example of how courts can grant benefits in a close case through the application of the correct standard of review.

The underlying injury was sustained by a general laborer at a mine, who had previously complained of back pain and had an MRI revealing mild concentric bulging. The claimant alleged, while driving a shuttle car, he hit a hole in the ground and bounced out of his seat. On landing, he claimed his back hurt so badly he could not breathe. Shortly thereafter, he left work early. After seeking treatment from a chiropractic physician, he was diagnosed with a disc protrusion and nerve root compression. A subsequent MRI revealed a herniated disc and bulge. The claimant filed the Employees' and Physicians' Report of Occupational Injury or Disease, claiming he injured himself in the course and scope of his employment, and the chiropractic physician likewise, designated the injury as occupational. However, the claim administrator denied the claim, because it was not work-related and was a result of a chronic condition. Subsequently, the claimant pursued additional medical reports and received a discectomy by a neurological surgeon. A physician, other than the surgeon, completed a Record Review and Opinion indicating that the claimant's injury was not traumatic in origin, but, "was the consequence of progressive, pre-existing degenerative disc disease." Id. at 4, 2018 WL 2470654 at *2. Finally, a diagnostic specialist conducted an Age of Injury Analysis and MRI Comparison and "concluded that [claimant's] condition was due to a progression of degenerative disc disease with chronic disc herniation…" Id.

Based on the additional medical reports, the Administrative Law Judge of the Office of Judges reversed the Claim Administrator. The ALJ found that, although some of the evaluating physicians concluded the condition was degenerative, the MRI after the alleged injury established the claimant exhibited a "right lateral disc herniation and disc bulge at L4-5…" The judge concluded the herniation "could certainly explain the claimant's assertion of severe low back pain…", and therefore, found the claim was compensable. Id. at 6, 2018 WL 2470654 at *3. The Worker's Compensation Board of Review adopted the findings and conclusions of the ALJ and affirmed the decision.

After appeal, the Supreme Court of Appeals "issued a Memorandum Decision in which [they] determined that the evidence showed that [claimant] did not sustain a work-related injury…" reversing the Board of Review decision. Id. The claimant asked the Supreme Court to reconsider its Memorandum Decision for failure of the court to "afford proper deference to the findings of the Administrative Law Judge and Board of Review." Id.

To begin their analysis, the court recognized that the standard of review for a worker's compensation case is provided by W. Va. Code § 23-5-15(b) which states a Supreme Court of Appeals decision that reverses or modifies a decision by the Commission or Office of Judges can only be reversed or modified if the decision "is in clear violation of constitutional or statutory provisions, is clearly the result of erroneous conclusions of law, or is so clearly wrong based upon the evidentiary record that even when all inferences are resolved in favor of the board's findings, reasoning and conclusions, there is insufficient support to sustain the decisions." Likewise, the statute states "the court may not conduct a de novo re-weighing of the evidentiary record." W. Va. Code § 23-5-15(b). In addition, the court is required to "state with specificity the basis for the decision" and how it falls under one of the three categories. Id. Finally, any issue regarding benefits shall be resolved by a preponderance of the evidence.

With this standard in mind, the previous Supreme Court of Appeals decision incorrectly stated the issue. Instead of asking whether the claimant's injury was properly found to be non-compensable, the court should have asked whether the decision of the Board of Review, favorable to the claimant and based on the evidentiary findings of the ALJ, should be affirmed, reversed, or modified pursuant to the standard of review found in W. Va. Code § 23-5-15. The court recognized that, in addition to the incorrect framing of the issue, the Memorandum Decision likewise failed to include an analysis stating "with specificity the basis for the decision" and how it falls under one of the three categories.

In addition, the court held the ALJ's finding of compensability was, in fact, based on the preponderance of evidence. The prior Supreme Court of Appeals decision failed to address the chiropractic physician's statement that the MRI indicated a new injury at the L4-5 nerve root compression. The court recognized it almost entirely based its holding on the degenerative disc disease discussion in the Record Review and Age of Injury Analysis, but that the medical evidence was "virtually unanimous in establishing [the claimant] did not have a herniated disc prior to [the date of injury]". Id. at 10, 2018 WL 2470654 at *5. Other matters considered by the ALJ provided additional evidence indicative of compensability, including: a doctor's visit the day after the injury, the claimant reporting to work with a limp, statements by the claimant that his back was killing him and that after running a shuttle car his back hurt so bad he couldn't breathe, and that the claimant left work early. Therefore, the Supreme Court of Appeals held the Board of Review's order affirming the ALJ decision was supported by a preponderance of the evidence and should be upheld. 

Finally, the court recognized the accepted rule stated in Gill v. City of Charleston (2016) 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 discreet new injury, that new injury may be found compensable." Id. at 11, 2018 WL 2470654 at *5. From this, the court held the preponderance of the evidence shows the claimant left his shift early, upon sustaining a compensable, discreet, new injury. Therefore, the Court withdrew its Memorandum Decision and affirmed the Board of Review order finding the claimant's injury compensable.

When faced with preexisting injuries or degenerative conditions, Arch Coal v. Lemon provides a few instructive practice pointers. A “discreet new injury" must be proved by preponderance of evidence. When analyzing a similar case, a claims administrator can use the Rule 20 treatment guidelines and treat a noncompensable preexisting injury which has aggravated a compensable injury. W. Va. C.S.R. § 85-20-21 (treatment of unrelated conditions).