State News : West Virginia

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 House Bill 4296 cleaned up and revised outdated provisions within Chapter 23 of the West Virginia Code, which pertains to workers’ compensation.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