State News : West Virginia

NWCDN State News – West Virginia

Charity Lawrence and Dill Battle, Spilman Thomas & Battle, PLLC

October 7, 2025

Supreme Court of Appeals of West Virginia

The Supreme Court of Appeals mourns the loss of Justice Timothy Armstead who died at the age of 60 on August 26, 2025. He served on the Court for seven years with two terms as Chief Justice in 2020 and 2024. A former Speaker of the House of Delegates of West Virginia, Justice Armstead was a dedicated public servant to the State of West Virginia. Senior Status Justice John A. Hutchison will serve temporarily following Justice Armstead’s death. The press release and poignant remarks from the Supreme Court can be found here:

https://www.courtswv.gov/sites/default/pubfilesmnt/2025-08/Supreme%20Court%20Mourns%20Loss%20of%20Justice%20Armstead.pdf

Justice Thomas H. Ewing was publicly sworn in on October 6, 2025. Justice Ewing was appointed on August 6 by Governor Patrick Morrisey to fill the seat vacated by Justice Beth Walker, who retired earlier this year. He was previously a circuit judge in the Fifteenth Judicial Circuit (Fayette County), where he had served since January 2019 following his appointment by Gov. Jim Justice. He was then elected as a circuit judge in 2020 and reelected in 2024. Judge Ewing was an attorney at Kay Casto & Chaney, PLLC from 2004 until his appointment to the bench.

In the middle of the Fall Term of Court in 2025, the Court has not issued any signed opinions to date but has issued 16 memorandum decisions related to workers’ compensation cases. One memorandum decision case of note is discussed below.

Intermediate Court of Appeals of West Virginia

In the Fall Term of Court in 2025, the Court has issued one signed opinion to date and has issued 14 memorandum decisions related to workers’ compensation cases.

Expenses for Workers’ Compensation Insurers Will Continue to Rise Due to WV Courts’ Deference to Claimants With Preexisting Conditions

One case of note spans the spring and fall terms of court in the ICA and in the Supreme Court of Appeals is Abby L. Boyes v. Hospice of Southern West Virginia, Inc..

The West Virginia Intermediate Court of Appeals continues to review and analyze compensability issues under the Moore v. ICG Tygart Valley decision issued by the West Virginia Supreme Court of Appeals.  In a recent Intermediate Court decision, Abby L. Boyes v. Hospice of Southern West Virginia, Inc., the claimant sought to add additional diagnoses to her workers’ compensation claim.  She was injured at work in October 2020 when a bariatric bed rolled over her right foot.  Claimant was initially seen at MedExpress where she was diagnosed with a contusion of the right foot.  An x-ray revealed degenerative changes and a slight angulation of a toe that was attributed to an old, healed injury.  The claim administrator held the claim compensable for contusion. 

A month after the injury, the claimant saw a podiatrist and was diagnosed with capsulitis of the right foot, Morton’s neuroma of the third interspace of the right foot, and other enthesopathies.  The claimant requested the diagnoses “capsulitis of the right foot” and “Morton’s neuroma” be added as compensable conditions in her workers’ compensation claim.  The claim administrator denied those requests based on a physician review opinion that Morton’s neuroma is rarely a traumatic condition.  However, the physician reviewer noted that the claimant had a crushing injury of the foot.

The claimant returned to work part time.  In June 2021, the claimant saw anther physician for foot complaints.  That physician opined the foot swelling could be mild residual inflammation or it could be due to the claimant’s weight and diabetes.

In August 2021, the claimant requested the following diagnoses be added as compensable conditions in her workers’ compensation claim: “crushing injury of the right foot, disorder of ligament, right foot; Morton’s neuroma of the third interspace of the right foot; capsulitis of metatarsophalangeal of the right foot; and localized edema.”  The claim administrator denied the requested diagnoses on the basis of a physician opinion finding that neither x-rays nor an MRI of the foot revealed evidence of tendon or ligamentous disruption to substantiate a finding of capsulitis.

The claimant protested the denial and the issue reached the Intermediate Court of Appeals, which remanded the issue to the West Virginia Workers’ Compensation Board of Review requesting a more detailed analysis of the diagnosis of crushing injury of the right foot, ligament disorder, and Morton’s neuroma. 

When the issue reached the Intermediate Court of Appeals for the second time, the claim argued that the diagnoses should be added to her claim and that she was entitled to the presumption established under the Moore case which held:

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 symptom was asymptomatic, and (2) following the injury, the symptoms of the disabling disease or condition appeared and continuously manifested themselves afterwards.  There must still 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.

247 W. Va. 292, 294, 879 S.E.2d, 779, 781 (2022).  The Intermediate Court analyzed this case under the Moore standard as well as the standard outlined in Gill v. City of Charleston, which held “[a] noncompensable 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 injury may be found compensable.”  236 W. Va. 737, 783 S.E.2d 857 (2016).

The Intermediate Court found that the Board of Review had properly denied the diagnoses of disorder of ligament, right foot; Morton’s neuroma of the third interspace of the right foot; capsulitis of metatarsophalangeal of the right foot; and localized edema.  However, the Court found the claimant established the diagnosis of a crushing injury of the foot was causally related to the workplace injury and that the Moore presumption was not rebutted even though the claimant had prior foot injuries.  The Intermediate Court noted that the Board of Review had incorrectly reasoned that because the other diagnoses were rejected, the crushing injury must also be rejected.  The Intermediate Court also faulted the Board of Review for failing to acknowledge that the claim administrator’s physician reviewer had commented that the claimant had a crushing injury.  As a result, the Intermediate Court reversed the Board of Review on the crushing injury diagnosis and held that the crushing injury diagnoses must be held compensable in the workers’ compensation claim. 

In September 2025, the West Virginia Supreme Court of Appeals affirmed the Intermediate Court’s decision in a Memorandum Decision, finding no reversible error. See Boyes v. Hospice of Southern West Virginia, Inc., No 25-200, (W. Va. September 12, 2025) (memorandum decision).

This case demonstrates West Virginia courts’ recent move to find for claimants if they can show their preexisting conditions were not symptomatic immediately before the work injury.  In the Boyes case, the claimant had a prior injury to the same foot as well as other comorbidities that could be causing her complaints.  In fact, she had seen her podiatrist six years before the workplace injury for peroneal tendinitis, two metatarsal stress fractures, and chronic ankle swelling.  Moreover, the IME doctor who examined her in this case found no objective evidence of disease from the work injury.  Rather than rely on Gill to find the diagnosis to be noncompensable because of preexisting conditions, the Intermediate Court relied on Moore to find for the claimant, requiring the claim administrator to hold an additional diagnosis as compensable.  Decisions like these will continue to cause more expense for workers’ compensation insurers who will be required to add diagnoses to claims when the diagnoses are likely related to symptoms from preexisting conditions.  It will also result in more litigation when diagnoses are denied based on preexisting conditions. 

Compensable Dust Exposure and Board of Review Standard of Evidence Review

In the case of Boyce v. Quinwood Coal Company, LLC, 2025 WL 2792731, (W. Va. Ct. App. 2025), the ICA issued a written opinion in the consolidated appeal of two occupational pneumoconiosis (OP) claims where the petitioners argued the West Virginia Workers’ Compensation Board of Review (BOR) failed to properly examine the evidence and erred in determining the petitioners were not exposed to hazardous occupational dust during employment. Judge Dan Greear wrote the opinion of the ICA that concluded that the BOR failed to analyze all the evidence in the records of dust exposure in both of the underlying cases. Accordingly, the ICA vacated the orders and remanded both matters to the Board.

In both cases the employee presented evidence regarding exposure to occupational dust during the course of employment. The evidence also consisted dust sampling records demonstrating the individual employee was not exposed to hazardous levels of airborne dust during his employment that exceeded the limits established by MSHA, based on the dust sampling result for the respective period of employment. The claim administrators found that the employees were not exposed to the hazards of dust during employment.

Under West Virginia Code § 23-4-1(b) (2024), a claimant seeking workers’ compensation benefits for OP must show exposure to the hazards of OP during their employment and contraction of OP. Additionally, a claimant must prove exposure in the State of West Virginia over a continuous period of not less than two years during the ten years immediately preceding the date of his or her last exposure to such hazards, or for any five of the 15 years immediately preceding the date of his or her last exposure. The Court notes that

‘In a claim for occupation pneumoconiosis under the Workmen’s Compensation Law, a ‘hazard,’ as contemplated by [West Virginia] Code [§] 23–4–1, as amended, exists in any work environment where it can be demonstrat[ed] that there are minute particles of dust in abnormal quantities.’ Syl. Pt. 3, Fenton Art Glass Co. v. West Virginia Office of Ins. Comm’r, 222 W. Va. 420, 664 S.E.2d 761 (2008). Thus, to establish a compensable OP claim, the burden is on the claimant to show exposure to abnormal quantities of dust exposure while in the workplace.

In defending a claim for OP, employers may rely upon W. Va. Code of State Rules § 85-20-52.2 (2006) which states in relevant part:

If the employer submits credible evidence demonstrating that it has been in compliance with OSHA and/or MSHA permissible exposure levels, as determined by sampling and testing performed in compliance with OSHA and/or MSHA regulations for the dust alleged by the injured worker, then the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may consider that the dust exposure alleged by the injured worker does not suffice to satisfy the exposure requirements of W. Va. Code §§ 23-4-1(b) and 23-4-15(b) only for the period(s) covered by the sampling or testing.

The Court found that Section 85-20-52.2 does not mandate a decision in favor of the employee, even if all requirements of W. Va. Code § 23-4-1(b) are met. Similarly, the wording of section 85-20-52.2 permits credible dust sampling results to be considered as sufficient evidence to defeat liability, but the regulation “does not serve as an automatic immunity provision for the employer. Rather, as expressly stated in West Virginia Code § 23-4-1(f), a ‘consideration of all the circumstances’ is necessary to determine if a claimant has met his or her burden for establishing a compensable workers’ compensation claim.” Finally, as the West Virginia Legislature expressly stated in W. Va. Code § 23-4-1g(a), in part, “[u]nder no circumstances will an issue be resolved by allowing certain evidence to be dispositive simply because it is reliable and is most favorable to a party’s interests or position.” Moreover, the Court noted, in this same provision, the legislature again noted the necessity of “weighing all of the evidence.”

The ICA would not reweigh the Board of Review’s finding the reports and deposition testimony of the employers’ experts were credible and admissible for purposes of section 85-20-52.2.4. The Court noted that the employers’ certified industrial hygienist testified as an expert regarding the procedure and methodology for air quality sampling and testing at the employers’ respective facilities, and the permissible dust levels. The ICA deferred to the Board’s findings regarding the admission of evidence, including the testimony and reports of the industrial hygienist demonstrating compliance with MSHA permissible exposure levels, and find no error in that regard.

While the Board was not clearly wrong in admitting and considering evidence regarding the employers’ compliance with MSHA permissible exposure levels, the ICA found error in the Board of Review’s failure to consider all of the evidence in the records. The Court particularly faulted the Board of Review for its one sentence finding that summarily ruled in favor of the employers based on the evidence of exposure levels, offering no analysis of the evidence presented by either petitioner. While certainly compelling, the evidence related to the testing of the exposure levels at the employers’ facilities “was but one piece of the evidence presented to the Board for consideration and was not alone dispositive of petitioners’ claims[ ]” and the Board of Review “made no credibility determinations and offered no analysis of Mr. Boyce’s testimony regarding his exposure to occupational dust on a daily basis, or Mr. Sargent’s testimony that the sampling levels were not indicative of the typical work conditions.” The ICA remanded the case to the Board of Review for an analysis of all the evidence submitted in each of these claims to substantiate its findings.

Moore v. United Coal Company, LLC,  No. 25-ICA-137, 2025 WL 2781461 (W. Va. Ct. App. September 30, 2025) (memorandum decision)

In Moore, the Intermediate Court of Appeals affirmed the March 7, 2025, Board of Review order that affirmed the claim administrator’s February 26, 2024, claim rejection order. Claimant filed a CTS claim application based on his work in the underground coal mine.

The Board concluded that Mr. Moore did not establish by a preponderance of the evidence that he developed bilateral CTS in the course of and resulting from his employment with United. The Board found that Dr. Nabet’s report, which attributed Mr. Moore’s CTS to diabetes, was persuasive. The Board weighed the factors set forth in West Virginia Code § 23-4-1(f) and found that considering the ten years between Mr. Moore’s last date of employment with United and his diagnosis of CTS, his worsening diabetes, and Dr. Nabet’s report which attributed Mr. Moore’s CTS to his diabetes, the record does not establish that there is a direct causal connection between Mr. Moore’s employment with United and his CTS. Mr. Moore argues that the Board failed to properly consider his testimony and statements to Dr. Kominsky that he developed symptoms during his last two or three years of employment and that Dr. Nabet erroneously found that the symptoms developed along with the diabetes. However, we note that the Board pointed out that Mr. Moore’s symptoms progressed over ten years following the date he was last exposed to the hazard of CTS.

Although Mr. Moore argues that the Board erred in disregarding Dr. Kominsky’s report, the Board specifically found that Dr. Kominsky did not consider Mr. Moore’s diabetes. On the other hand, the Board found that Dr. Nabet’s report addresses the significance of Mr. Moore’s diabetes as documented in the medical records and is more complete in addressing compensability. The ICA deferred to the Board’s credibility determinations and weighing of the evidence.

The ICA found that the Board of Review was not clearly wrong to find that Dr. Nabet’s medical opinion was more credible than Dr. Kominsky’s because he considered Claimant's diabetes condition in the compensability analysis of the CTS diagnosis.

For any questions, please contact:

Charity K. Lawrence

CLawrence@spilmanlaw.com

304-720-4056

Dill Battle

Spilman Thomas & Battle, PLLC

hdbattle@spilmanlaw.com

304-340-3823