State News : West Virginia

NWCDN State News – West Virginia

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

May 31, 2026; Updated June 3, 2026

 West Virginia Legislature – 2026 Regular Session

House Bill 5515 updated the Workers’ Compensation Statutes and is effective June 12, 2026. The bill revised outdated and/or unnecessary provisions within Chapter 23 of the West Virginia Code, which pertains to workers’ compensation insurance and benefits. The legislation also repealed certain sections within Chapter 23 that are obsolete. As previously reported, the legislation represents a comprehensive modernization of West Virginia’s workers’ compensation statutes. It updates, reorganizes, and repeals numerous provisions in Articles 4 and 5 of Chapter 23 to improve administrative clarity, ensure consistency, and align the code with post-2005 reforms. The Insurance Commissioner indicated that this bill represents the final phase of a multi-year cleanup effort. In addition to modernizing statutory language, the bill would grant the Governor flexibility to reduce the number of Board of Review members as caseloads decline.

Supreme Court of Appeals of West Virginia

The May 12, 2026 election did not favor the incumbents. Justices Thomas Ewing and Justice Gerald M. Titus III, both appointed by Gov. Patrick Morrisey to fill open seats on the state Supreme Court, were defeated in the election on May 12, 2026.

In the Supreme Court election for the term expiring in 2028 to fill the seat formerly held by Justice Beth Walker, Bill Flanigan, a Wheeling lawyer, defeated Justice Ewing.

The second Supreme Court election was for an unexpired term to fill the seat formerly held by Justice Tim Armstead, who died last year. Candidates ran to fill out the term that expires in 2032. The winner of the race was H.L. “Kirk” Kirkpatrick, a senior status judge and circuit court judge from Raleigh County. Five candidates were vying to fill this seat, including incumbent Justice Gerald Titus,  former attorney at Spilman, Thomas & Battle, PLLC, who was appointed to fill the vacant seat until the election. The other candidates were  Todd Kirby, a former state delegate and current circuit judge in Raleigh County; Laura Faircloth, a current circuit judge in the Eastern Panhandle; and Martin “Red Hat” Sheehan, a Wheeling attorney.

First Term of Court 2026

As the First Term of Court in 2026 nears its end in June, the Court has not issued any signed opinions related to workers’ compensation cases. It has issued fourteen memorandum decisions.

In John Moore v. United Coal Company, LLC, No. 25-822 (W. Va. S. Ct. April 24, 2026) (memorandum decision), the Supreme Court affirmed the September 30, 2025 Memorandum Decision of the Intermediate Court of Appeals (“ICA”) that affirmed the March 7, 2025 Board of Review order affirming the claim administrator’s February 26, 2024 order rejecting the claim for Carpal Tunnel Syndrome. Claimant alleged his CTS resulted from his employment as an underground coal miner. The claimant argued that the Board of Review erred in finding the report of Austin Nabet, D.O., more persuasive than the report of Michael Kominsky, D.C., due to Dr. Nabet’s discussion of the claimant’s diabetes. The claimant argues that his diabetes was not severe enough for the Board of Review to disregard the claimant’s years of working with numerous, very heavy high-impact tools that required him to use a tight grip and subjected him to extensive vibrations while having to bend and rotate his wrists. The case turned on the employer’s expert opinion that claimant’s diabetes condition was the likely cause of CTS. The Supreme Court quoted the ICA opinion in Moore v. United Coal Co., LLC, No. 25-ICA-137, 2025 WL 2781461 (W. Va. Ct. App. Sept. 30, 2025) (memorandum decision) that stated: “’Dr. Nabet’s report addresses the significance of [the claimant]’s diabetes as documented in the medical records and is more complete [than Dr. Kominsky’s report] in addressing compensability.’ 2025 WL 2781461, at *3.” Moore, 2025 WL 2781461, at *3. The Supreme Court also relied on the ICA noting that West Virginia Code of State Rules § 85-20-41.4 includes diabetes as among those “[m]edical conditions [that] frequently produce or contribute to CTS.” 2025 WL 2781461, at *3, n. 2. See Moore, 2025 WL 2781461, at *3. The Court found the evidence and law supported the ICA’s decision particularly in its support of the Board of Review’s finding Dr. Nabet considered claimant’s diabetes condition as a contributing cause of CTS. In a dissenting opinion, Justice Wooton would have reversed the ICA to find the claim compensable based on Dr. Kominsky’s opinion claimant’s eight years of working with mining equipment could have caused the CTS.

In William K. Willis v. Fayette County Commission, No. 25-734 (W.Va. Supreme Court, April 21, 2026) (memorandum decision) the Court decided a heart attack suffered at work was not a compensable injury. The claimant appealed the ICA decision that affirmed the Board of Review order which affirmed the claim administrator’s order rejecting the claim. The claimant, a deputy sheriff, asserts that he suffered a heart attack during the apprehension of a criminal. During the apprehension, the claimant experienced heightened stress due to the need to protect the public. The claimant argued that the heart attack was in the course of his employment and resulted from the performance of his job duties. The employer countered by arguing that the Board of Review was not clearly wrong in finding that the claimant failed to present evidence showing that the heart attack he suffered was due to his work activities. Instead, the claimant speculates that the heart attack resulted from his employment. Speculation is not evidence of a causal connection between the heart attack and the claimant’s job. The Board of Review found that there was no medical evidence establishing that the heart attack the claimant suffered was due to his work activities. Without such medical evidence, the Board of Review concluded that the claimant relied upon speculation, which was insufficient to show a work-related injury. See Syl Pt. 4, Clark v. State Workmen’s Compensation Comm’r, 155 W. Va. 726, 187 S.E.2d 213 (1972) (“Where proof offered by a claimant to establish his claim is based wholly on speculation, such proof is unsatisfactory and is inadequate to sustain the claim.”). The ICA affirmed the Board of Review’s decision, observing that the Supreme Court has previously held that a heart attack suffered at work is not compensable without a causal connection between the claimant’s job duties and the heart attack. Willis, 2025 WL 2491264 at *3 (citing Barnett v. State Workmen’s Comp. Comm’r, 153 W. Va. 796, 812, 172 S.E.2d 698, 707 (1970)).

In Blackhawk Mining, LLC v. Harold G. Woods Jr., No. 25-661 (W.Va. Supreme Court, April 21, 2026) (memorandum decision), the Court addressed the question whether coal dust exposure can cause occupational asthma. Petitioner Blackhawk Mining, LLC appealed the August 6, 2025, decision of the ICA. See Blackhawk Mining, LLC v. Woods, No. 25-ICA-63, 2025 WL 2249390 (W. Va. Ct. App. Aug. 6, 2025) (memorandum decision). The issue on appeal is whether the ICA erred in affirming the January 16, 2025, decision of the West Virginia Workers’ Compensation Board of Review, which reversed the claim administrator’s July 14, 2022, order rejecting the claim. The Board of Review held the claim compensable for occupational asthma. The employer argued that the claimant failed to show that he has occupational asthma. The Occupational Pneumoconiosis Board (“OP Board”) and every qualified pulmonologist and occupational medicine physician in this case agreed that coal dust does not cause asthma. Therefore, the employer argues that the claimant’s inconsistent pulmonary function testing, preexisting allergic history, unqualified experts, and speculative allegations of exposure fail, as a matter of law, to show that he contracted an occupational disease due to his work environment. The employer also argued that the ICA and the Board of Review should be reversed, and the claim administrator’s order rejecting the claim should be reinstated. The claimant countered by arguing that his diagnosis of occupational asthma due to exposure to coal mine dust, which includes more substances than just coal dust, is amply supported by the opinions of his experts, including his former treating physician. The claimant provided evidence of his exposure to various contaminants present in the employer’s coal prep plant, and there was no indication of hazardous exposure outside of that work environment. Therefore, the claimant argued that the Board of Review, as affirmed by the ICA, properly reversed the claim administrator’s order to hold the claim compensable. In reply, the employer argued that the claim should be rejected because the OP Board testified that the claimant does not have work-related asthma. In affirming the Board of Review’s decision, the ICA deferred to the Board of Review’s credibility determinations and weighing of the evidence. Woods, 2025 WL 2249390, at *5 (citing Martin v. Randolph Cnty. Bd. of Educ., 195 W. Va. 297, 306, 465 S.E.2d 399, 408 (1995)). The ICA concluded that the Board of Review was not clearly wrong in finding that the claimant showed by a preponderance of the evidence that he contracted occupational asthma in the course of and resulting from his employment. Id. The Supreme Court reviews questions of law de novo, while it accords deference to the Board of Review’s findings of fact unless the findings are clearly wrong. Syl. Pt. 3, Duff v. Kanawha Cnty. Comm’n, 250 W. Va. 510, 905 S.E.2d 528 (2024). Upon consideration of the record and briefs, The Supreme Court found no reversible error and, therefore, summarily affirm. See W. Va. R. App. P. 21(c).

In Blackhawk Mining, LLC v. Harold G. Elswick II, No. 25-735, (W.Va. Supreme Court, March 24, 2026)(memorandum decision), the Court addressed an apportionment of preexisting impairment under W. Va. Code § 23-4-9b and Duff v. Kanawha Cnty. Commission, 250 W.Va. 510, 905 S.E.2d 528 (2024). The issue on appeal was whether the ICA erred in affirming the December 16, 2024, decision of the West Virginia Workers’ Compensation Board of Review, which reversed the claim administrator’s June 13, 2023, order granting 9% permanent partial disability. The Board of Review granted an additional 4% for a total award of 13% permanent partial disability. The employer asserted that the Board of Review rejected the 9% impairment rating provided by Prasadarao B. Mukkamala, M.D., for arbitrarily splitting impairment between compensable and preexisting conditions 50-50. Bruce A. Guberman, M.D., engaged in the same kind arbitrary apportionment disapproved by the Court in Duff v. Kanawha County Commission, 250 W. Va. 510, 520, 905 S.E.2d 528, 538 (2024). Yet, the Board of Review accepted Dr. Guberman’s 13% impairment rating without adequate explanation of its reasoning. In addition to arbitrarily splitting impairment between compensable and preexisting conditions, Dr. Guberman also rounded up when calculating impairment without providing a sufficient rationale for doing so. Therefore, the employer argued that the Supreme Court should reverse the Board of Review’s decision granting an additional 4% for a total award of 13% permanent partial disability. The claimant counters by arguing that the evidence in the record supports the Board of Review’s decision and its reliance on Dr. Guberman’s report. The claimant argued that reversing the Board of Review would require the Supreme Court to substitute its judgment for the Board’s when the Board was not clearly wrong. Therefore, the claimant argued that the Court should affirm the Board of Review’s decision. The Board of Review found that Dr. Mukkamala’s apportionment of the claimant’s cervical impairment was conclusory and without probative value. The Board of Review stated that Dr. Guberman’s “more reasoned and rational” apportionment met the standards the Supreme Court set forth in Duff. The ICA found that the Board of Review was not clearly wrong in relying on Dr. Guberman’s report. Elswick, 2025 WL 2491282, at *4. The ICA also noted that the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993), which both Drs. Mukkamala and Guberman utilized in rating the claimant’s impairment, “contemplate rounding up percentages of apportionment[.]” Elswick, 2025 WL 2491282, at *3 n.3. The Supreme Court reviews questions of law de novo, while it accords deference to the Board of Review’s findings of fact unless the findings are clearly wrong. Duff, 250 W. Va. at 512, 905 S.E.2d at 530, Syl. Pt. 3. Upon consideration of the record and briefs, the Supreme Court found no reversible error and therefore summarily affirm. See W. Va. R. App. P. 21(c).

In Georgian American Alloys, Inc. v. Mark Davis, No. 25-579 (W.Va. Supreme Court, January 13, 2026) (memorandum decision), the Court affirmed the June 27, 2025, memorandum decision of the ICA. See Georgian American Alloys, Inc. v. Davis, No. 25-ICA-49, 2025 WL 1779770 (W. Va. Ct. App. Jun. 27, 2025) (memorandum decision). The issue on appeal is whether the ICA erred in affirming the January 2, 2025, order of the Workers’ Compensation Board of Review reversing the May 23, 2023, claim administrator’s order granting Mr. Davis a 10% permanent partial disability award (“PPD”). Instead, the Board of Review granted an additional 5% PPD award for a total award of 15% PPD, which the ICA affirmed. The Court rejected the employer’s argument that the ICA erred in failing to apportion the claimant’s preexisting impairment when it affirmed the Board of Review’s decision to grant an additional 5% PPD award. The employer asserted that the facts of this case and the evidence of record clearly establish that the claimant has no permanent impairment due to the compensable condition in the claim, which is broken ribs, and that the evidence relied on by the Board was a 15% impairment rating for a noncompensable neurological condition. The employer argued the evidence presented by a Board-certified pulmonologist demonstrated the claimant’s breathing abnormality was the result of his prior smoking habit and not related to the injury. As such, the employer argued that the medical evidence clearly established that the claimant had a definite ascertainable preexisting impairment which should have been deducted from the total impairment rating. Furthermore, the employer contends that the exclusion of the pulmonologist’s report simply because he used a pulmonary criteria to rate the claimant’s pulmonary impairment instead of neurological impairment is improper. The Board of Review found that the pulmonologist’s report included opinions of the claimant’s impairment that were not supported by the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4^th ed. 1993). As a result, his report was found to be unreliable with regard to the claimant’s permanent impairment, and his opinion concerning the alleged preexisting condition was found to be without additional medical support. Thus, the ICA and the Board of Review correctly determined that apportionment was not proper because the pulmonologist’s recommendation of 5% whole-person impairment for pulmonary function was not a valid and reliable rating. The Court reviews questions of law de novo, and accords deference to the Board of Review’s findings of fact unless the findings are clearly wrong. Syl. Pt. 3, Duff v. Kanawha Cnty. Comm’n, 250 W. Va. 510, 905 S.E.2d 528 (2024). Upon consideration of the record and briefs, the Court found no reversible error and therefore summarily affirmed. See W. Va. R. App. P. 21(c).

Terry Kyle v. Patriot Coal Corp., No. 25-605 (W.Va. Supreme Court, January 13, 2026) (memorandum decision) is a January 2026 WV Supreme Court decision regarding a permanent partial disability (“PPD”) rating for occupational pneumoconiosis (“OP”). In February 2022, the claimant completed an employees’ and physicians’ report of OP, and indicated that he was last exposed to occupational dust in November 2015 when he ceased working due to health issues. The claimant stated that he became short of breath when walking, bending over, and carrying groceries. The Occupational Pneumoconiosis Board (“the OP Board”) evaluated the claimant in March 2023 and noted that he was exposed to occupational dust for twenty-three years. A chest x-ray was found by the OP Board to show insufficient evidence of pleural or parenchymal changes to support a diagnosis of OP. The claimant underwent pulmonary function testing in July 2023, which showed 10% pulmonary impairment. He subsequently underwent pulmonary function testing in April 2024 which showed 0% pulmonary impairment. The OP Board found the two studies to be minimally different from each other, and it noted that such studies frequently show fluctuating values on different days. The OP Board relied on the April 2024 study to find 0% impairment, explaining that the pulmonary function study with the best volumes most accurately shows the extent of a claimant’s breathing capacity. 

Based upon the OP Board’s final hearing testimony, the Board of Review affirmed the claim administrator’s order granting 0% permanent partial disability for OP, concluding that the OP Board’s findings were not clearly wrong. The ICA affirmed the decision. On appeal to the Supreme Court, the claimant argued the ICA had noted that the lower tribunal’s decision “lacks reasoning.” The claimant also argued he should have been granted 10% PPD for OP based on the July 2023 study due to the evidence being in equipoise. This argument was based on W. Va. Code § 23-4-1g(a) which provides that “[i]f, after weighing all of the evidence regarding an issue in which a claimant has an interest, there is a finding that an equal amount of evidentiary weight exists favoring conflicting matters for resolution, the resolution that is most consistent with the claimant’s position will be adopted.” However, the Supreme Court found that W. Va. Code § 23-4-1g(a) does not apply because the evidence was not in equipoise. The OP Board found that the April 2024 pulmonary function study, showing 0% impairment, had the best volumes. West Virginia Code § 23-4-6a provides that this Court “shall affirm the decision of the [OP] Board made following [the] hearing unless the decision is clearly wrong in view of the reliable, probative and substantial evidence on the whole record.” The claimant did not meet his burden of establishing that the OP Board was clearly wrong in its decision, thus the 0% PPD award was affirmed.

Intermediate Court of Appeals of West Virginia

The May 12, 2026 election on the Intermediate Court of Appeals saw a race that featured incumbent Judge Dan Greear, an original sitting member of the ICA, and Kanawha County Family Court Judge Jim Douglas. The incumbent lost the election.

As the First Term of Court concludes in June 2026, the ICA has not issued any signed opinions. As of the date of this memo, the Court has issued forty-four memorandum decisions related to workers’ compensation cases.

Mercer County Board of Education v. Rosemary S. Mitchell, No. 25-ICA-427 (W.Va. Intermediate Court of Appeals, May 1, 2026) (memorandum decision). Ms. Mitchell argued that she was at work in the superintendent of schools’ office, discussing a situation, when she stood up and rolled her right ankle and injured her foot. Ms. Mitchell alleged that she got her right foot hung on the side of the chair and when she stood, the ankle rolled. MCBOE argued that Ms. Mitchell failed to establish a compensable claim. MCBOE admitted that the evidence on record establishes that Ms. Mitchell sustained an ankle injury while standing up from a chair. However, MCBOE argued that Ms. Mitchell’s employment offered no increased risk of injury beyond what any other person would have sustained outside of their employment. MCBOE characterized Ms. Mitchell’s injury as “idiopathic.” Finally, MCBOE argued that the finding of compensability in this claim is in contradiction to the increased risk test set forth in Hood v. Lincare Holdings, Inc., 249 W. Va. 108, 894 S.E.2d 890 (2023). The ICA disagreed. The ICA noted, as did the Board, that the clear cause of the injury is Ms. Mitchell’s foot getting caught in a chair as she was standing up, meaning that the cause and mechanism of the injury are known. The ICA concluded that the Board was not clearly wrong in finding that Ms. Mitchell sustained a left ankle injury in the course of and as a result of her employment. Further, the ICA concluded that the Board was not clearly wrong in finding that the claim fell within the first risk category of Hood, and evaluating the claim under that category. As the Supreme Court of Appeals has set forth, “[t]he ‘clearly wrong’ and the ‘arbitrary and capricious’ standards of review are deferential ones which presume an agency’s actions are valid as long as the decision is supported by substantial evidence or by a rational basis.” Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473 S.E.2d 483 (1996). With this deferential standard of review in mind, the ICA cannot conclude that the Board was clearly wrong in reversing the claim administrator’s order, which rejected the claim.

WVNH EMP LLC & PMA Insurance Companies v. Maureen Swisher, No. 25-ICA-374 (W.Va. Intermediate Court of Appeals, April 7, 2026 decision) (memorandum decision). The Employer appealed the September 8, 2025, order of the Workers’ Compensation Board of Review granting Respondent Maureen Swisher’s petition for attorney’s fees based on the finding that the claim administrator’s October 2, 2024, order declaring an overpayment of temporary total disability (“TTD”) payments was unreasonable pursuant to West Virginia Code § 23-2C-21(c) (2022). On appeal, WVNH asserts one assignment of error and argues the Board’s decision to grant attorney’s fees based on the claim administrator’s declaration of overpayment is erroneous because an overpayment is not the same as “a denial of an award of temporary total disability” as used in West Virginia Code § 23-2C-21(c). The ICA agreed. The ICA found WV Code § 23-2C-21(c) did not include overpayment in the statute language where denial of an award of TTD, denial of compensability, and denial of medical benefits are specifically included. Judge White dissented. He stated that an overpayment determination that is later reversed because the claimant was entitled to the benefits should be treated, for purposes of § 23-2C-21(c), as tantamount to an unreasonable denial.

Freda J. Lee v. Little General Stores, Inc., No. 25-ICA-309, (W.Va. Intermediate Court of Appeals, May 1, 2026) (memorandum decision). The issue on appeal is whether the Board erred in affirming the claim administrator’s order, which rejected the claim.

Ms. Lee completed an Employees’ and Physicians’ Report of Occupational Injury or Disease (“WC-1”) form on May 20, 2024, alleging that she injured her back at work on May 15, 2024, while lifting beverages and taking them to the cooler. Andrew D. Bryant, D.O., completed the physician’s section of the WC-1 form on May 20, 2024, and identified the lumbar spine as the body part injured and diagnosed a lumbar disc herniation that resulted from an occupational injury. Further, Dr. Bryant noted that the injury did not aggravate a prior injury or disease. Dr. Bryant took Ms. Lee off work from May 20, 2024, to June 1, 2024. On June 5, 2024, Ms. Lee received treatment from Richard Knapp, M.D., related to a work-related injury of her thoracic and lumbar spine. Ms. Lee reported that her thoracic pain was nearly resolved and her lumbar pain had improved, but she still had lingering pain that radiated into her right lower extremity. Dr. Knapp diagnosed thoracic and lumbar strains and requested spinal x-rays and physical therapy. Dr. Knapp also released Ms. Lee to return to work at light duty with limitations on lifting, pushing, and pulling. On June 15, 2024, Dr. Knapp completed a Physical Capability Assessment form for Ms. Lee. Dr. Knapp placed Ms. Lee on restrictions from any extensive lifting, pushing, or pulling of more than ten pounds.

Before the injury at issue in this claim, between January of 2017 and April 23, 2024, Ms. Lee received treatment for symptoms related to her back. Murray E. Joiner, Jr., M.D., and his physician’s assistants saw Ms. Lee nearly every month to provide pain medication refill prescriptions to treat her chronic low back pain. The providers at Dr. Joiner’s office consistently diagnosed Ms. Lee with chronic low back pain, other intervertebral disc displacement of lumbar and lumbosacral regions, left leg sciatica, fibromyalgia, and other lumbar related conditions. In February of 2019, a new MRI of her lumbar spine was reviewed by Dr. Joiner’s physician’s assistant who noted that it showed a herniated nucleus pulposus, but no nerve root compression. In August and November of 2019, Ms. Lee received lumbar injections from L2-L3 to L5-S1 and an ultrasound-guided injection. On November 12, 2020, Ms. Lee reported that the previous month she was hospitalized after she fell from scaffolding, and she reported severe back pain. In multiple visits between 2022 and 2023, Ms. Lee reported pain in her mid to low back. On March 26, 2024, Ms. Lee reported worsening pain all over her body, including severe low back pain. On April 23, 2024, Ms. Lee reported an increase in her low back pain due to working at her job.

In May of 2023, Ms. Lee sought a pain management physician to treat fibromyalgia, arthritis in her knee, and pain in her mid and lower back after she moved to Madison, West Virginia. To that end, she underwent a new patient examination by Andrew Bryant, D.O., at BMH Medical Clinic. Dr. Bryant noted that Ms. Lee’s prescribed medications included narcotics, anti-inflammatories, and steroids. At a visit in October of 2023, Dr. Bryant discussed Ms. Lee’s ability to work in light of her pain from degenerative spinal conditions. Dr. Bryant explained to Ms. Lee that her pain may worsen with more activity, although activity was beneficial for her arthritic knee condition. By order dated August 7, 2024, the claim administrator rejected Ms. Lee’s claim as it found that she did not sustain an injury in the course of and resulting from her employment. The claim administrator listed May 16, 2024, as the date of the injury. Ms. Lee protested this order to the Board. At a deposition on December 9, 2024, Ms. Lee testified that she worked as a cashier for her employer and injured her back on May 15, 2024, while stocking cases of beverages in coolers. Ms. Lee stated that, as she opened a large door while carrying cases of bottled beverages, she pulled her back and felt pain down the right side of her lower back and into her hip. Ms. Lee said that she reported the injury to her supervisor the following day, although she was off work, and several days later, she saw Dr. Bryant. According to Ms. Lee, Dr. Bryant diagnosed a lumbar sprain and referred her to Dr. Knapp since it was a work related injury. She testified that she discontinued physical therapy after the claim was rejected, but she later resumed it, and it was still ongoing. Regarding prior back problems, Ms. Lee testified that in 2018 or 2019, she fell and suffered an upper spine compression fracture and broken ribs. However, Ms. Lee said that she had completely healed from the injury, and she denied that the injury involved her low back and denied having any prior treatment for her lower back. Ms. Lee testified that on the date of her injury, she had no work restrictions. On cross-examination, Ms. Lee testified that she has been treated by a pain management specialist for arthritis and fibromyalgia but denied that she was treated for spine pain. On July 2, 2025, the Board affirmed the claim administrator’s order rejecting the claim. The Board found that Ms. Lee failed to establish that she sustained a new injury to her lumbar spine as a result of an injury on May 15 or May 16, 2024, that occurred in the course of and resulting from her employment. Ms. Lee appealed the Board’s order.

On appeal, Ms. Lee argued that she established that she suffered a lumbar injury that occurred in the course of and resulting from her employment on or about May 16, 2024, as demonstrated by medical records. Ms. Lee asserts that the Board’s finding that she did not sustain a compensable injury is not supported by the evidence or the law and should be reversed. Ms. Lee maintains that the Board gave excessive weight to the fact that she suffered a serious back injury several years before the injury in this claim, and it failed to acknowledge that, although she received periodic treatment for her injury, she was able to work a strenuous job. Thus, Ms. Lee contended that any prior, ongoing low back issues were minor and inconsequential. Finally, Ms. Lee argued the Board did not properly weigh the evidence, as it should have found that there was at least an equal amount of evidence supporting her position that her low back injury is compensable. The ICA disagreed.

For a workers’ compensation claim to be held compensable, three elements must coexist: (1) a personal injury, (2) received in the course of employment, and (3) resulting from that employment. Syl. Pt. 1, Barnett v. State Workmen’s Comp. Comm’r, 153 W. Va. 796, 172 S.E.2d 698 (1970). Also, “[i]n determining whether an injury resulted from a claimant’s employment, a causal connection between the injury and employment must be shown to have existed.” Syl. Pt. 3, Emmel v. State Comp. Dir., 150 W. Va. 277, 145 S.E.2d 29 (1965). The Supreme Court of Appeals of West Virginia has “traditionally held that a workers’ compensation claimant has the burden of proving his or her claim by proper and satisfactory proof.” Casdorph v. West Virginia Office Ins. Comm’r, 225 W. Va. 94, 99, 690 S.E.2d 102, 107 (2009). The Board noted that Ms. Lee completed a WC-1 form on May 20, 2024, in which she alleged that she suffered a back injury on May 15, 2024, while lifting and carrying cases of beverages to a cooler at her workplace. The Board further noted that the record established that Ms. Lee received regular pain management treatment for chronic low back pain, other intervertebral disc displacement in the lumbar region, fibromyalgia, lumbar radiculopathy, and sciatica between January of 2017 and April of 2024.

The Board analyzed the case pursuant to the Supreme Court of Appeals of West Virginia’s (“SCAWV”) holdings in Gill v. City of Charleston, 236 W. Va. 737, 783 S.E.2d 857 (2016) and Moore v. ICG Tygart Valley, LLC, 247 W. Va. 292, 879 S.E.2d 779 (2022).

The SCAWV held in Gill:

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.

Gill at 738, 783 S.E.2d at 858, syl. pt. 3.

The SCAWV clarified its position in Moore, holding:

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.

Moore at 294, 879 S.E.2d at 781, syl. pt. 5.

Here, the Board found that Ms. Lee failed to establish that she is entitled to the presumption pursuant to Moore, that her lumbar spine herniated disc resulted from an injury in May of 2024. The Board noted that a lumbar MRI performed in 2019 revealed a herniated nucleus pulposus with no nerve root compression. Based on numerous treatment notes in the record, the Board concluded that Ms. Lee received extensive treatment for lumbar spine symptoms that are virtually the same as those she reported in June of 2024, after the alleged work injury. Further, the Board pointed out that on April 23, 2024, only three weeks before the alleged injury, Ms. Lee received treatment for her low back pain. The Board noted that pursuant to SCAWV’s decision in Gill, a pre-existing injury may not be added as a compensable component in a workers’ compensation claim.

Upon review, the ICA concluded that the Board was not clearly wrong in finding that Ms. Lee failed to establish that she suffered a lumbar injury in May of 2024 in the course of and resulting from her employment. The ICA found that there is ample evidence that Ms. Lee suffered ongoing, symptomatic back pain requiring medications and injections from as far back as 2017 and up to only a few weeks before the alleged injury in this claim. As the Board concluded, Ms. Lee’s symptoms predated the alleged injury and are virtually the same as her symptoms following the alleged injury. As set forth by the SCAWV, “[t]he ‘clearly wrong’ and the ‘arbitrary and capricious’ standards of review are deferential ones which presume an agency’s actions are valid as long as the decision is supported by substantial evidence or by a rational basis.” Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473 S.E.2d 483 (1996). With this deferential standard of review in mind, the ICA cannot conclude that the Board was clearly wrong in affirming the claim administrator’s order, which rejected the claim.

In State Agencies of West Virginia v. Daniel Johnson, No. 25-ICA-448, (W.Va. Intermediate Court of Appeals, June 2, 2026) (memorandum decision), the Intermediate Court of Appeals affirmed the Board of Review’s finding that a remote employee suffered a compensable injury slipping on his driveway after he stepped out of his state truck to close a gate and slipped on ice. The issue on appeal is whether the Board of Review erred in reversing the claim administrator’s order which rejected the claim.

Mr. Johnson, an Inspector Supervisor for the West Virginia Department of Environmental Protection, completed an Employees’ and Physicians’ Report of Occupational Injury or Disease on January 24, 2025. Mr. Johnson indicated that he injured his right leg on January 23, 2025, when he exited a state truck to close a gate and slipped and fell on icy ground. The injury occurred on Mr. Johnson’s property as he prepared to travel to another location in the course of his duties with State Agencies. Mr. Johnson indicated that the injury occurred shortly after he started work in the morning.

Nick Zervos, M.D., signed the physicians’ portion of the form on January 29, 2025. Dr. Zervos indicated that he first treated Mr. Johnson on January 28, 2025. He advised Mr. Johnson to remain off work from January 28, 2025, to February 3, 2025. Specifically, Dr. Zervos indicated that Mr. Johnson’s injured body part was the right ankle, which was a direct result of an occupational injury. Dr. Zervos stated that the injury did not aggravate a prior injury or disease and provided work restrictions for Mr. Johnson.

Cher Szerokman, a benefits coordinator at State Agencies, completed an undated First Report of Injury, and indicated that Mr. Johnson suffered an injury on January 23, 2025, after he exited a state truck to close a gate, slipped, and fell on ice. Ms. Szerokman described the injury as a fracture of the right lower leg. Mr. Johnson’s accident occurred when he left home to travel to a jobsite. As he drove down his driveway and exited his vehicle to shut a gate, he fell on the ice. Ms. Szerokman stated that Mr. Johnson’s wife witnessed the fall and drove him to the ER.

By order dated January 29, 2025, the claim administrator rejected Mr. Johnsons’ claim on the basis that the disability he complained of was not due to an injury or disease received in the course of employment. Rather, the claim administrator determined that Mr. Johnson’s slip and fall on the ice while closing the gate at his home was not within the course/scope of employment. Thus, the claim administrator concluded that Mr. Johnson’s injury did not result from his employment. Mr. Johnson protested this order.

In correspondence to the Board dated February 13, 2025, Mr. Johnson stated that the denial of his claim was based on the fact that he fell while closing a gate as he was leaving his property, and the claim administrator found that this act was not within the course/scope of his work. However, Mr. Johnson alleged that as a field-based employee, his work begins when he leaves home and drives to a mine site or other location in the course of his duties. Mr. Johnson indicated that his “on the clock” time begins as soon as he starts his state vehicle and drives away.

By order dated October 16, 2025, the Board reversed the claim administrator’s order, which rejected the claim. The Board found that in weighing the evidence presented in the claim, including Mr. Johnson’s statement, the employer’s report, and the WC-1 form, it is more likely than not that Mr. Johnson was in the course of his employment at the time of the injury when he exited his work vehicle, slipped on the ice, and fell. State Agencies appealed the Board’s order.

On appeal, State Agencies argued that the facts of the case do not establish that Mr. Johnson sustained an injury in the course of and resulting from his employment. Further, Stage Agencies averred that Mr. Johnson faced no increased risk from his employment. The Court of Appeals disagreed.

In order for a workers’ compensation claim to be compensable, three elements must coexist: (1) a personal injury, (2) received in the course of employment, and (3) resulting from that employment. Syl. Pt. 1, Barnett v. State Workmen’s Comp. Comm’r, 153 W. Va. 796, 172 S.E.2d 698 (1970). “Workmen’s compensation law generally recognizes that an employee is entitled to compensation for an injury received while traveling on behalf of [the] employer’s business.” Syl. Pt. 1, Calloway v. State Workmen’s Comp. Comm’r, 165 W. Va. 432, 268 S.E.2d 132 (1980). Further, the Supreme Court of Appeals of West Virginia (“SCAWV”) held that “if employees are required, as a condition of their employment, to routinely journey from place to place, then injuries incurred by those employees while traveling are compensable.” Williby v. W. Va. Off. of Ins. Comm’r, 224 W. Va. 358, 363, 686 S.E.2d 9, 14 (2009).

In this case, the Board found that Mr. Johnson established that he injured his right lower leg in the course of and as a result of his employment on January 23, 2025. Further, the Board concluded that Mr. Johnson’s description of his injury on the WC-1 form was confirmed by the employer’s report, which stated that he drove down his driveway, exited his state vehicle to shut the driveway gate, and fell on the ice. The Board compared the facts of the instant case to those in Murphy v. Eastern Arrow Corporation, Inc., No. 12- 0605, 2014 WL 211982 (W. Va. Jan. 16, 2014) (memorandum decision), in which the claimant routinely traveled between the employer’s jobsites to perform his employment duties, and the SCAWV found that traveling was within the claimant’s zone of employment. Because Mr. Johnson worked from home and traveled to other jobsites in a work vehicle as part of his job duties, the Board concluded that the right leg injury occurred in the course of and resulting from his employment.

State Agencies asserted that the Board improperly applied Hood v. Lincare Holdings, Inc., 249 W. Va. 108, 894 S.E.2d 890 (2023), and that Mr. Johnson’s employment did not place him at an increased risk of injury. The Court of Appeals disagreed. The Board distinguished the facts of the instant case from Hood, in which the claimant did not trip or fall, and his knee simply buckled. The Board found that Mr. Johnson’s claim is more similar to the facts of American Medical Facilities v. Parsons, No. 19-1174, 2021 WL 1595434 (W. Va. Apr. 23, 2021) (memorandum decision), in which the claimant slipped and fell while walking to an employer break room. In Parsons, the Court held that the claimant’s injury was within the scope of her employment when she slipped and fell while walking to the employer’s breakroom for a lunch break. Here, the Board found that Mr. Johnson routinely traveled from his home, where he worked remotely, to various jobsites as part of his job duties, and he drove a state work vehicle. Further, the Board noted that Mr. Johnson suffered an injury when he stepped out of the vehicle and slipped on the ice. Thus, the Board made a factual determination that the risks Mr. Johnson faced were directly associated with his employment, whereas the claimant in Hood was engaged in a neutral risk activity. The Court of Appeals deferred to the Board’s weighing of the evidence.

Upon review, Court of Appeals held that it cannot conclude that the Board was clearly wrong in finding that Mr. Johnson established that he injured his right lower leg in the course of and resulting from his employment on January 23, 2025. As the SCAWV has set forth, “[t]he ‘clearly wrong’ and the ‘arbitrary and capricious’ standards of review are deferential ones, which presume an agency’s actions are valid as long as the decision is supported by substantial evidence or by a rational basis.” Sy. Pt. 3, In re Queen, 196 W. Va. 442, 473 S.E.2d 483 (1996). With this deferential standard of review in mind, Court of Appeals held that it cannot conclude that the Board was clearly wrong in reversing the claim administrator’s order which rejected the claim. Accordingly, the Court of Appeals affirmed the Board’s October 16, 2025, order.

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

NWCDN State News – West Virginia

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

February 16, 2026

 Upcoming Conferences

The West Virginia Workers’ Compensation Association is hosting its annual conference on April 30, 2026, in Charleston, West Virginia. A featured program will discuss E-Mods and understanding claim and program costs to discuss how a comprehensive workers’ compensation program can impact your E-mod and premium costs from claim avoidance, safety measures and claim management. Another featured speaker is Dr. Chris Martin to debate whether the Rule 20 treatment guidelines are still a valid, including his position on the importance of treatment guidelines to the workers’ compensation system in West Virginia to maintain and keep medical costs low and to help manage a workers’ compensation claim. West Virginia Insurance Commissioner Allan L. McVey will discuss the Insurance Market in West Virginia, and West Virginia State Treasurer Larry Pack will discuss the financial impact of a stable workers’ compensation market to our State’s financial health. More information can be found under the Meetings drop down menu of the WVWCA website: www.wvwca.net

West Virginia Legislature – 2026 Regular Session

 As of February 11, 2026, there are several bills of note related to workers’ compensation submitted in the 2026 Regular Session of the West Virginia Legislature. The West Virginia Workers’ Compensation Association and other business advocacy groups are following several bills related to occupational pneumoconiosis law in West Virginia.

Senate Bill 895 is concerning because it removes the statute of limitations for certain occupational pneumoconiosis (OP) claims and allows unlimited reopening of old claims. It was introduced on February 10, 2026, by Senator Takubo, Senator Smith (Senate President) and others, and was referred to the Judiciary Committee. This bill is similar to bills that have been introduced unsuccessfully for several years. The bill relates to progressive massive fibrosis (PMF) -- the most severe form of coal workers’ pneumoconiosis. The bill removes all time limits for filing or reopening PMF claims. A new section (§23‑4‑8e) allows miners with evidence of PMF to file initial claims or reopen old claims at any time, with no statute of limitations. The bill establishes PMF as a distinct, more severe condition by explicitly recognizing PMF as more serious than simple pneumoconiosis and defines it using radiographic criteria (large opacities >1 cm). The bill creates a mandatory impairment rating where a PMF diagnosis is automatically considered a 15% permanent partial disability under §23‑4‑6(i). This is a fixed statutory award. Finally, the bill allows unlimited reopening of PMF claims. Because PMF is a progressive disease, the bill ties PMF to the “progressive disease” category, which already allows repeated reopening petitions. Senate Bill 895 expands this by eliminating time limits entirely.

Delegates Hall, Jeffries, and Mott introduced House Bill 5515 on February 13, 2026, which mirrors Senate Bill 904 introduced February 10 by Senator Azinger. Both bills are intended to “modernize” Chapter 23 of the West Virginia Code. House Bill 5515 has been referred to the House Finance Committee. Senate Bill 904, introduced by Senator Azinger, has been single-referred to the Senate Banking and Insurance Committee. Both bills propose significant revisions to Articles 4 and 5 of Chapter 23. The Office of the West Virginia Insurance Commissioner drafted the legislation and requested that the respective committee chairs introduce the bills. According to the introductory language, the legislation represents a comprehensive modernization of West Virginia’s workers’ compensation statutes. It updates, reorganizes, and repeals numerous provisions in Articles 4 and 5 to improve administrative clarity, ensure consistency, and align the code with post-2005 reforms. The Commissioner indicated that this bill represents the final phase of a multi-year cleanup effort. In addition to modernizing statutory language, the bill would grant the Governor flexibility to reduce the number of Board of Review members as caseloads decline. The Commissioner has stated that the proposed changes are non-substantive in nature. The West Virginia Workers’ Compensation Association will review and analyze both bills to ensure that no unintended consequences result from the proposed revisions.

House Bill 4901 is an attempt to add a mandatory indemnity benefit for an employee with pulmonary massive fibrosis without pulmonary impairment into the deliberate intent section 2 of article 4 (WV Code 23-4-2), but it also will open the door for more deliberate intent lawsuits given that the language is inserted in this section of the Code. If the purpose is to add an indemnity benefit structure for this type of injured employee, it should have been inserted elsewhere in the code, possibly section 6a (WV Code 23-4-6a). Inserting the new language into WV Code 23-4-2(d)(2)(B)(v)(IV) and WV Code 23-4-2(d)(2)(B)(v)(V) will certainly open the door for more deliberate intent lawsuit outside the workers’ compensation system despite the prerequisite qualifications in the new law:

(1)   the employee must have written certification from a board certified pulmonologist that the employee is suffering from complicated pneumoconiosis or pulmonary massive fibrosis without current pulmonary impairment;

(2)   the employee must file the cause of action within one year of the date the employee meets the requirements; and

(3)   the employee must prove the employer fraudulently concealed or manipulated dusts samples or air quality samples.  

The proposed bill at this point provides a mandatory award with no connection to how the benefits are defined for a claimant with pulmonary massive fibrosis with no current pulmonary impairment:

(1)   Category A shall receive 10 percent;

(2)   Category B shall receive 20 percent; and

(3)   Category C shall receive 30 percent.

 House Bill 4589 expands time limitations for evaluation before the Occupational Pneumoconiosis Board, and expands indefinitely the current three-year statute of limitations. The bill essentially provides an unlimited time for an employee to file an occupational pneumoconiosis claim and obtain an evaluation at the OP Board, circumventing the current three-year statute of limitations. House Bill 4589 was discussed at a hearing on January 22, 2026, in the Committee on Health and Human Resources. Commissioner McVey testified before the committee hearing and discussed the financial impact of the bill on the operating budget of the OIC, the operating budget of the OP Board, and the solvency of the Old Fund. Calculating insurance reserve information for uncertain claims will be impossible and will increase the cost of obtaining workers’ compensation insurance for all businesses. The bill is problematic to the insurance industry and employers in West Virginia because it will increase the expenses of the Operating Fund of the OIC, will likely adversely affect the efficiency of the OP Board, and will likely increase the cost of obtaining affordable workers’ compensation insurance for businesses in West Virginia. The long-term impact of the bill will be a challenge to the low cost of workers’ compensation insurance for all employers in the state.

Senate Bill 110 creates a West Virginia Black Lung Program that grants pain and suffering for occupational pneumoconiosis. There is already a robust West Virginia Black Lung Program long in existence. Occupational pneumoconiosis is evaluated and compensated under existing state law with generous benefits and medical treatment for qualifying West Virginia employees afflicted with occupational pneumoconiosis. Benefits are already tax-free and not reportable as income to the State or IRS. An additional black lung benefit that has provided over $30 million in direct benefits to West Virginians just in FY2025 is the Federal Black Lung program. All claims for federal black lung benefits are presumed to be filed timely and there is no statute of limitations for filing survivor claims. Monthly benefits are based on the number of dependents as well as generous medical coverage, also all tax-free and not reported as income. The proposed Senate Bill 110 will fund a third, unnecessary State Black Lung scheme through taxes on coal, wind, solar, and other renewables. West Virginia taxpayers are already struggling, asking them to bear the burden of higher energy rates is unnecessary and harmful. The proposed Senate Bill 110 also instructs that a portion of the federal coal excise tax that funds the already-beleaguered Black Lung Disability Trust Fund be redirected to create this redundant program, which would be opposed federally and would further exacerbate this already fiscally problematic Fund’s financial issues. There is no residency requirement for the receipt of pain and suffering benefits under the proposed Senate Bill 110, so West Virginia taxpayers would be subsidizing benefits to countless nonresidents. It is also potentially retroactive, as there is no beginning date specified.

Occupational pneumoconiosis can be a devastating diagnosis to individuals and families. There are two robust, longstanding programs available to afflicted employees and their survivors that provide benefits. Senate Bill 110 is redundant, fiscally irresponsible, and creates a burden on West Virginia taxpayers to provide benefits to out of state residents.

 House Bill 4589 is currently in the House Committee on Health and Human Resources. Senate Bill 110 has been referred to the Committee of the Judiciary and then to the Committee on Finance but has not been scheduled on the agenda for either committee.

Supreme Court of Appeals of West Virginia

The Supreme Court of Appeals of West Virginia welcomes a new justice in the first term of 2026. Justice Gerald M. Titus III was appointed on Nov. 21, 2025, by Gov. Patrick Morrisey to fill the seat vacated by Justice Tim Armstead, who passed away in August. Justice Titus was officially sworn in to office during a private ceremony on Dec. 12 in order to begin work ahead of the Court’s spring term. Prior to joining the Court, Justice Titus was a member of Spilman, Thomas & Battle, where he maintained a general litigation practice, including complex business disputes, commercial transportation claims, eminent domain proceedings, environmental matters, criminal investigations and prosecutions, and dispute resolution.

At the beginning of the Spring Term of Court in 2026, the Court has not issued any signed opinions. As of the date of this memo, the Court has issued six memorandum decisions related to workers’ compensation cases.

Georgian American Alloys, Inc. v. Mark Davis, No. 25-579 (W.Va. Supreme Court, January 13, 2026) (memorandum decision). The Court affirmed the June 27, 2025, memorandum decision of the Intermediate Court of Appeals (“ICA”). See Georgian American Alloys, Inc. v. Davis, No. 25-ICA-49, 2025 WL 1779770 (W. Va. Ct. App. Jun. 27, 2025) (memorandum decision). The ICA affirmed the January 2, 2025, order of the Workers’ Compensation Board of Review reversing the May 23, 2023, claim administrator’s order granting Mr. Davis a 10% permanent partial disability award (“PPD”). The Board of Review granted an additional 5% PPD award for a total award of 15% PPD, which the ICA affirmed. The Court rejected the employer’s argument that the ICA erred in failing to apportion the claimant’s preexisting impairment when it affirmed the Board of Review’s decision to grant an additional 5% PPD award. The employer asserted that the facts of this case and the evidence of record clearly establish that the claimant has no permanent impairment due to the compensable condition in the claim, which is broken ribs, and that the evidence relied on by the Board was a 15% impairment rating for a noncompensable neurological condition. The employer argued the evidence presented by a Board-certified pulmonologist demonstrated the claimant’s breathing abnormality was the result of his prior smoking habit and not related to the injury. As such, the employer argued that the medical evidence clearly established that the claimant had a definite ascertainable preexisting impairment which should have been deducted from the total impairment rating. Furthermore, the employer contends that the exclusion of the pulmonologist’s report simply because he used a pulmonary criteria to rate the claimant’s pulmonary impairment instead of neurological impairment is improper. The Board of Review found that the pulmonologist’s report included opinions of the claimant’s impairment that were not supported by the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4^th ed. 1993). As a result, his report was found to be unreliable with regard to the claimant’s permanent impairment, and his opinion concerning the alleged preexisting condition was found to be without additional medical support. Thus, the ICA and the Board of Review correctly determined that apportionment was not proper because the pulmonologist’s recommendation of 5% whole-person impairment for pulmonary function was not a valid and reliable rating. The Court reviews questions of law de novo, and accords deference to the Board of Review’s findings of fact unless the findings are clearly wrong. Syl. Pt. 3, Duff v. Kanawha Cnty. Comm’n, 250 W. Va. 510, 905 S.E.2d 528 (2024). Upon consideration of the record and briefs, the Court found no reversible error and therefore summarily affirmed. See W. Va. R. App. P. 21(c).

Terry Kyle v. Patriot Coal Corp., No. 25-605 (W.Va. Supreme Court, January 13, 2026) (memorandum decision) is a January 2026 WV Supreme Court decision regarding a permanent partial disability (“PPD”) rating for occupational pneumoconiosis (“OP”). The claimant had been exposed to occupational dust for 23 years. A chest x-ray was found by the Occupational Pneumoconiosis Board (“the OP Board”) to show insufficient evidence of pleural or parenchymal changes to support a diagnosis of OP. The claimant underwent pulmonary function testing in July 2023, which showed 10% pulmonary impairment. He subsequently underwent pulmonary function testing in April 2024 which showed 0% pulmonary impairment. The OP Board found the two studies to be minimally different from each other, and it noted that such studies frequently show fluctuating values on different days. The OP Board relied on the April 2024 study to find 0% impairment, explaining that the pulmonary function study with the best volumes most accurately shows the extent of a claimant’s breathing capacity. The Intermediate Court of Appeals affirmed the decision. On appeal at the WV Supreme Court level, the claimant argued the Intermediate Court of Appeals had noted that the lower tribunal’s decision “lacks reasoning.” The claimant also argued he should have been granted 10% PPD for OP based on the July 2023 study due to the evidence being in equipoise. This argument was based on W. Va. 23-4-1g(a) which provides that “[i]f, after weighing all of the evidence regarding an issue in which a claimant has an interest, there is a finding that an equal amount of evidentiary weight exists favoring conflicting matters for resolution, the resolution that is most consistent with the claimant’s position will be adopted.” However, the WV Supreme Court found the evidence was not in equipoise and W. Va. Code 23-4-1g(a) does not apply. The April 2024 pulmonary function study showing 0% had the best volumes. Thus, the claimant did not prove the OP Board was clearly wrong in its decision, and the 0% PPD award was affirmed.

Intermediate Court of Appeals of West Virginia

In the Spring Term of Court in 2026, the ICA has not issued any signed opinions. As of the date of this memo, the Court has issued thirteen memorandum decisions related to workers’ compensation cases.

Joseph Kessler v. West Virginia Paving, Inc., No. 25-ICA-275, (W.Va. Intermediate Court of Appeals, February 3, 2026) (memorandum decision) is a February 2026 Intermediate Court of Appeals decision regarding failure to establish exposure to the hazards of OP. The claimant alleged he was exposed to occupational dust hazards during his employment in coal mines from 1975 to 1982, 1986 to 1987, 2001 to 2002, and 2013 to 2022. While working for West Virginia Paving, Inc., his job activities involved picking up loads of rock, sand, and other materials from a mine quarry and delivering the product to customers. The Board of Review found the claimant failed to establish by a preponderance of the evidence that he was exposed to abnormal quantities of dust during the course of and resulting from his employment. W. Va. Code § 23-4-1(b) states that in order to be eligible for workers’ compensation benefits related to OP, a claimant must have “been exposed to the hazards of occupational pneumoconiosis in the State of West Virginia over a continuous period of not less than two years during the 10 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.” “[A] ‘hazard’ as contemplated by the statute, consists of any condition where it can be demonstrated that there are minute particles of dust in abnormal quantities in the work area.” Meadows v. Workmen’s Comp. Comm’r, 198 S.E.2d 137, 139 (1973). Mere employment at a dusty location, such as a mine site, is not enough to show a claimant has been exposed to a hazard. The Intermediate Court of Appeals held that the claimant experienced only occasional and brief periods of dust exposure during his work. He testified he remained in an enclosed truck cab during loading and unloading, which only took five to ten minutes, and which took place in an open-air environment. He also testified most of his driving occurred on public roads. Thus, the Court found it was not clearly wrong for the Board of Review to find the claimant was not exposed to hazardous dust levels while working for his employer because he failed to establish occupational exposure to abnormal quantities of dust. 

Alliance Coal, LLC v. Ashley Carte, No. 25-ICA-284, (W.Va. Intermediate Court of Appeals, February 3, 2026) (memorandum decision). Alliance appealed the June 10, 2025, order of the Workers’ Compensation Board of Review (“Board”), which reversed two claim administrator’s orders and granted Carte a 12% permanent partial disability (“PPD”) award. On May 17, 2022, Carte was employed by Alliance as an underground fire boss in a coal mine when he injured the bicep/forearm of his left arm while he was repositioning roof straps. The appeal involves the proper interpretation of the AMA Guides Fourth Edition and the Board’s weighing of the evidence of different methods of calculating whole person impairment when using grip strength loss measurements. The ICA was persuaded by the Board’s determination that both Mr. Carte’s statements to Dr. Guberman regarding his loss of grip strength and Dr. Guberman’s evidence showing significant loss of grip strength between the left and right hands were more persuasive measurements of whole person impairment, and Alliance failed to rebut these findings. As the Board noted, the Guides allow the use of grip strength as the basis for an impairment rating in rare cases, and Dr. Guberman concluded that this was such a case. Thus, the ICA found no error in the Board’s determination that Dr. Guberman’s application of loss of grip strength pursuant to the Guides was appropriate in this case. The ICA applied a deferential standard of review and affirmed the Board of Review:

As the Supreme Court of Appeals of West Virginia has set forth, “[t]he ‘clearly wrong’ and the ‘arbitrary and capricious’ standards of review are deferential ones which presume an agency’s actions are valid as long as the decision is supported by substantial evidence or by a rational basis.” Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473 S.E.2d 483 (1996). With this deferential standard of review in mind, we cannot conclude that the Board was clearly wrong in finding Mr. Carte sustained a 12% WPI from loss of grip strength due to the compensable injury.

Alliance Coal, LLC v. Ashley Carte, at p. 4.

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

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

NWCDN State News – West Virginia

Dill Battle, Spilman Thomas & Battle, PLLC

With assistance from clerks Alan Parsons, Carter Capehart, and Jonathan Gharib.

July 10, 2025

At the June 12, 2025 Annual Conference of the West Virginia Workers’ Compensation Association, Insurance Commissioner Allan McVey provided an update on the state of the West Virginia Workers’ Compensation Insurance Market. Commissioner McVey reported 356 insurance companies are eligible to write coverage, with 281 insurance companies having an active policy. As of 5/31/25, there are 40,238 policies in West Virginia. There are 47 active self-insured employers in West Virginia. In calendar year 2024 , there was $251,931,031 direct premium dollars. The loss cost effective date changed from November 1 to January 1 with a 9.1% Loss Costs Reduction on January 1, 2025 ($15,000,000 savings). This year marks 20 consecutive years of loss costs decreases with overall premium declining 85.2%, a savings of $481,000,000 to employers. The residual market has 4.6% of policies.

Commissioner McVey reported that fiscal year 2025 benefit rates have been updated and the Average Weekly Wage (AWW) in the private sector increased 4% to $1,109.90, for an annual average salary of $57,715. A worker needs to earn $1,664.85 per week or $86,810 annually to receive the maximum allowable benefit. The minimum benefit is $193.33 weekly based on federal minimum wage of $7.25 per hour.

As of May 31, 2025, the Old Fund had 5580 active claims. (The Old Fund is the legacy fund for the West Virginia Workers’ Compensation Fund that was privatized in 2005.) The case reserves for the Old Fund is $728,100,339. There was a reduction of 9,346 claims in 10 years, and a reduction of approximately $1.35 billion in case reserves in those 10 years, with 80% of the case reserves are indemnity.

The Coal Workers’ Pneumoconiosis Fund (CWP) as of May 31, 2025, has 918 active claims with $166,790,467 in case reserves. This is an increase of 72 active claims in 10 years and an increase of approximately $20 million in case reserves over 10 years. The highest Claims and Reserves for the CWP was 2020/2021.

The Uninsured Employer Fund (UEF) as of May 31, 2025, had eight active claims and has $1,754,432 in case reserves. This is a reduction of 12 active claims over 10 years. An increase of approximately $964,000 in case reserves in 10 years. The UEF has an average of 13 active claims in 10 years. The Volatile Reserves are based on the claim type.

The Self-insured Employer Guaranty and Security Funds (combined) as of May 31, 2025, has 266 active claims, with $28,821,611 in case reserves. This is the reduction of 608 active claims in eight years. There is also reduction of $40.2 million in case reserves in eight years. The most recent “Active“ Self-Insured Employer to put claims into the SIE Fund was 2018. The most recent large “Active” Self-Insured Employer to put claims into the Fund was 2015.

The Office of the Insurance Commissioner is the administrator of the State Agency Workers’ Compensation claims, and Encova is the current carrier. This is the 15th policy year for the State Agency Workers’ Compensation in 2025. This includes more than 100 agencies, boards, and commissions with approximately 25,000 public employees, over 900 locations across West Virginia. The State Agency Workers’ Compensation claims are trending by claim count with a high of 1,525 in fiscal year 2018 to the current number of 1,261 in fiscal year 2025 year to date.

2025 Legislation: House Bill 2797 – Relating to Post Traumatic Stress Disorder Claims
(Effective July 11, 2025)

HB 2692 adds certified mental health nurse practitioners and certified psychiatric physician assistants to the list of health care professionals who may diagnose post-traumatic stress disorder (PTSD) as a compensable injury or disease of first responders under workers’ compensation law. The bill amends current law to state that such professionals must hold a master’s degree or higher, as well as holding a terminal license within their profession and be qualified to treat PTSD. The PTSD coverage for first responders is an optional benefit, and the claim may be covered if an employer has elected to purchase the coverage. The bill further clarifies that, while the initial diagnosis must be made by a licensed psychiatrist, certified mental health nurse practitioner or certified psychiatric physician assistant, may offer mental health treatment consistent for a PTSD diagnosis. The sunset date of July 1, 2026, was also removed making this optional benefit permanent.

West Virginia Supreme Court of Appeals

In the Spring Term of Court in 2025, the Court has issued three signed opinions and 50 memorandum decisions.

Compensable Psychiatric Diagnoses

In the Spring Term of the Court in 2025, the West Virginia Supreme Court of Appeals (WVSCA) issued an impactful memorandum decision concerning the requirements to adequately prove and develop a claim for compensable psychiatric diagnoses as required in W. Va. C.S.R. § 85-20-12.1 et. seq., commonly referred to as “Rule 20.”.

E.B. v. All. Coal, LLC, No. 23-409, 2025 WL 1203177 (W. Va. Apr. 25, 2025) (memorandum decision)[1]

In Alliance Coal, the Court was tasked with reviewing the Board of Review’s (BOR) denial, and the West Virginia Intermediate Court of Appeals’ affirmation (ICA), of a claimant’s request to add psychiatric diagnoses for PTSD, MDD, and GAD to his compensable injuries. The Concurring Opinions of three justices remanded the case to the BOR for a proper psychiatric evaluation in order to effectuate the purpose of West Virginia’s workers’ compensation laws.

The claimant, a coal miner, was seriously injured while working on August 30, 2020, when a hydraulic pressurized hose struck him in the face. He suffered significant physical injuries. In September 2020, Dr. Benjamin Moorehead of the Concussion Clinic at WVU Medicine recommended psychological treatment and a referral to a psychiatrist. Following the psychiatric assessment, the claim was held compensable for the psychological diagnosis of “adjustment disorder with mixed anxiety and depressed mood.” Two months following the closing of the claim, the claimant requested it be reopened for aggravation of the psychological injuries. Dr. Franklin Curry, Psy.D., filed the application, which was denied because Curry was not the claimant’s treating physician. A later application by Dr. John David Lynch, M.D., the claimant’s treating physician, was denied because Lynch was not a psychiatrist, though the claimant did submit additional reports from additional psychological providers opining on his additional diagnoses.

An additional request was then submitted after the claimant was referred for treatment to Dr. Matthew S. Zell, M.D., at WVU Psychiatry, who requested authorization for prescriptions to treat the claimant for post-traumatic stress disorder (PTSD), major depressive disorder (MDD), and generalized anxiety disorder (GAD). Notably, Dr. Zell had not completed his residency training and education to be a licensed psychiatrist. This treatment request was denied by the claim administrator because the medications were not related to any conditions that been held compensable in the claim. The BOR affirmed the denial of the request for the prescriptions, as well as a request to the reopen the claim on a TTD basis for a lack of required materials needed to form a valid request as directed by the psychiatric treatment guidelines set forth in Rule 20, W. Va. C.S.R. § 85-20-12.3, such as a current mental status exam.

On appeal, the ICA affirmed the BOR. The ICA based its holding not on the lack of materials provided in Dr. Zell’s report, but on the fact that Dr. Zell was not yet a licensed psychiatrist, therefore his report could not be used to establish the validity of the additional diagnoses as required in the psychiatric treatment guidelines in W. Va. C.S.R. § 85-20-12.4. The ICA further denied the claimant’s request to remand the case to the BOR so the claimant could submit a report from a qualified psychiatrist.

On appeal to the WVSCA, the Majority vacated the decision of the ICA and remanded the case to the BOR to allow the claimant to submit an evaluation from a licensed psychiatrist. The Majority’s position was based on the purpose and policy of workers’ compensation legislation, stating that “[o]ne of the basic purposes of workmen's compensation legislation is to impose upon industry the cost of medical expenses incurred in the treatment and rehabilitation of workers who have suffered injuries in the course of and as a result of their employment[.]” E.B. v. All. Coal, LLC, No. 23-409, 2025 WL 1203177, at *2 (W. Va. Apr. 25, 2025) (memorandum decision) (quoting Syl. Pt. 2, in part, Ney v. Workmen's Comp. Comm'r, 171 W. Va. 13, 297 S.E.2d 212 (1982)). To effectuate that purpose, the court held that the case should be remanded to allow the claimant to submit a qualified report.

The Dissent believed that the BOR and ICA should be affirmed, not because of Dr. Zell’s qualifications, but because the claimant’s evidence was not in compliance with the applicable rule, most notably being a missing mental status exam. See W. Va. C.S.R. § 85-20-12.8(d)(9). Justices Armstead and Bunn maintained their positions on the issue, which prevailed in the earlier case of Travers v. Blackhawk Mining, LLC, No. 23-173, 2024 WL 3726275 (W. Va. Aug. 7, 2024) (memorandum decision). In Travers, the BOR’s denial of the claimant’s request for additional psychiatric diagnoses was denied because the diagnosis request for the addition of PTSD and anxiety disorder failed to provide the information required by rule (W. Va. C.S.R. § 85-20-12.4). The case was decided with Justices Armstead and Bunn in the majority, along with Justice Walker. Justice Walker, notably joined the majority in Alliance Coal, to allow the case to be remanded.

Together, these cases exhibit a difference of opinion in how the Court views the requirements in the psychiatric treatment guidelines in W. Va. C.S.R. § 85-20-12.1, et seq., ’s to report and determine a compensable psychiatric diagnosis. Justices Armstead and Bunn have consistently held that the failure to follow the Rules’ requirements will be fatal to a claim. Justice Wooten has consistently held that the purpose of workers’ compensation legislation allows for some flexibility in the rules to allow claims to be decided on the merits. Justice Walker was the only justice to come out differently between the Alliance Coal and Travers cases—Justice Trump, who concurred in Alliance Coal, was not on the bench when Travers was decided. Justice Walker may have been more influenced by policy here because the ICA’s decision was based on Dr. Zell’s qualifications rather than the Rule 20’s requirements.

Regardless, Justice Walker recently retired after an illustrious career at the Supreme Court, leaving an unknown justice to fill the seat with the potential swing vote on this issue when it next reaches the WVSCA.

Compensability of COVID-19 Claim

Foster v. PrimeCare Medical of W.Va. Inc., No. 23-726, 2025 WL 1534690, -- S.E.2d-- (W. Va., March 18, 2025)

Chief Justice Wooton wrote the opinion for the majority. Betty Foster (“Ms. Foster”) filed a claim for workers’ compensation allegedly due to contracting COVID-19 through exposure to inmates and correctional/administrative personal who tested positive for the disease while working as a licensed practical nurse at the Southern Regional Jail, in Beaver, WV. PrimeCare Medical of West Virginia Inc, (“PrimeCare”) argued Ms. Foster may have been exposed to COVID-19 during two non-work-related trips, including a visit to a hospital emergency room.

Ms. Foster’s initial workers’ compensation claim was denied by the Claim Administrator. On appeal of the decision to the West Virginia Workers’ Compensation Board of Review (BOR), Ms. Foster presented into evidence an examination report by Dr. Bruce Guberman who determined Ms. Foster’s contraction of COVID-19 was an “occupational disease.” Dr. Guberman opined that there is no specific test to determine how one contracted COVID-19, but with a reasonable degree of medical certainty, felt Ms. Foster contracted the disease as a result of repeated exposures through her employment.

After Ms. Foster’s medical examination, another physician, Dr. Tomas Parker, reviewed her record and determined that COVID-19 was not an occupational disease, and found Ms. Foster had recovered quickly from COVID-19 pneumonia, according to a pulmonary function test. PrimeCare also produced a medical study further negating Ms. Foster’s position.

The BOR reversed the claim administrator’s denial of Ms. Foster’s claim, finding she had established entitlement to workers’ compensation benefits pursuant to a six-factor test found in W. Va. 23-4-1(f):

1.     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;

6.     And 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.

PrimeCare appealed the BOR’s decision to the West Virginia Intermediate Court of Appeals (“ICA”), which vacated the BOR’s order, finding that the BOR’s order was “insufficient in that it does not discuss each of the six factors”, and that “any decision by the Board addressing 23-4-1(f) must discuss in detail each of the six factors and address whether the claimant has satisfied his or her burden to prove the presence of each factor.” The Board issued a comprehensive opinion which found Ms. Foster satisfied every prong of the statutory test. The ICA again reversed the Board’s decision finding, “with no evidence to refute the findings of this study (Risk Factor Study provided by PrimeCare) we now conclude that the evidence introduced by Ms. Foster fails to satisfy factor four of West Virginia code § 23-4-1(f).”

Holding: A workers’ compensation claim for work-related injury, disease, or death caused by, or arising from, COVID-19 may be held compensable, notwithstanding that workers generally were exposed to the disease outside of their employment, when a preponderance of the evidence established that the claimant contracted the disease in the course of and resulting from his or her covered employment and further established the other elements of the test set forth in W.Va. § 23-4-1(f).

In a workers’ compensation claim, in which it is alleged that the claimant contracted COVID-19 as a result of workplace exposure, statistical evidence as to the incidence of workplace-related risk vis-à-vis outside risk is relevant, but not dispositive, in determining whether the claimant’s exposure came from a hazard to which workmen would have been equally exposed outside the employment. W.Va. § 23-4-1(f) (2023). In deciding compensability, any such evidence may be considered together with the party’s evidence tending to prove or disprove that the claimant in fact contracted COVID-19 from exposure in the workplace.

Rational: The Court found it illogical to hold Ms. Foster was not exposed to a higher risk of workplace exposure due to her profession, and that no amount of proof could satisfy the statutory burden of proving she contracted COVID-19 from known work exposures. Rather, W.Va. § 23-4-1(f) sets out a framework for determining whether a disease is considered to have incurred in the course of, or resulted from, employment, a determination made upon consideration of all the circumstances. Where there is evidence of a known risk linked to a particular workplace hazard, this “raises a prima facie case of causation upon a showing that the claimant was exposed to a hazard and is suffering from the disease which it is connected.” “It is a logical inference that in the absence of a known risk a claimant may still prove his or her case but without the benefit of a rebuttable presumption of causation.”

Further, the court found PrimeCare’s argument regarding “risk” as being wholly determinative, illogical due to impossible burden this would place on health care workers having to prove, by a preponderance of the evidence, that the risk of exposure in the workplace for all healthcare workers, in all facilities, in all areas, is greater than the potential exposure outside of the workplace. This evidentiary burden would be impossible to meet and would negate the very purpose of W.Va. § 23-4-1(f), which was to provide a roadmap for relief in cases involving diseases of ordinary life. The West Virginia Intermediate Court of Appeals (“ICA”), failed to consider the Board’s exhaustive analysis of PrimeCare’s study (Risk Factors Associated with SARS-CoV-2 Seropositivity Among US Health Care Professionals, March 2021) regarding COVID-19 in major metropolitan areas, which the Board found was of little value and most likely would have very different results in a rural community, such as Beaver, WV.

Next, PrimeCare argues that W.Va. § 23-4-1(f) is a “poison pill” in that COVID-19 can never be a compensable occupational disease because the disease “was everywhere”, making the claimant’s burden of proof insurmountable under any and all circumstances. If read in isolation, W.Va. § 23-4-1(f)(4) could support PrimeCare’s argument, but under accepted canons of statutory construction, “statutes which relate to the same subject matter should be read and applied together so that the Legislature’s intent can be gathered from the whole of the enactments.” Whereas the “express purpose of the statute, W.Va. § 23-4-1, is to provide a guideline for assessing workers’ compensation claims involving ordinary diseases of life to which the general public is exposed outside of the employment which is nonetheless contracted in the workplace.”

The Legislature has acknowledged that workers’ compensation benefits may be awarded for work-related injury, disease, or death caused or arising from COVID-19. Specifically, the Court references W.Va. § 55-19-6, which provides in relevant part, “when a claim for workers’ compensation benefits is awarded for a work-related injury, disease, or death caused by or arising from COVID-19 in the course of and resulting from covered employment… such claim shall be the sole and exclusive remedy for such injury under W.Va. § 23-2-6.” Accordingly, the Court rejected PrimeCare’s argument that W.Va. § 23-4-1(f) was intended to exclude COVID-19 under any and all circumstances, because this would nullify W.Va. § 55-19-6. Ultimately, the Court reversed and remanded the ICA’s decision, finding Ms. Foster was eligible for benefits under a workers’ compensation claim.

Dissent – Justice Armstead

Justice Armstead dissents from the majority on two separate grounds; (1) the petitioner did not clearly establish that she contracted COVID-19 during the course of her employment, and (2) she failed to submit any evidence on one of the factors in West Virginia Code § 23-4-1(f).

Justice Armstead stated that there must be three elements met, for a claim to be compensable under West Virginia’s workers’ compensation laws; (1) a personal injury, (2) received in the course of employment, and (3) resulting from that employment. The claimant had multiple situations where she was potentially exposed to COVID-19, including a trip to the ER, where she tested negative five days after a potential work place exposure. Ms. Foster had another potential COVID-19 exposure both inside and outside her place of employment during the general time of her claim. Two separate treating physicians did not consider Ms. Foster’s COVID-19 contraction related to her occupation. Therefore, Justice Armstead found that the Court should have ruled in favor of the ICA, concluding Ms. Foster failed to satisfy her burden of establishing she contracted COVID-19 in the course of her employment.

Next, the ICA concluded Ms. Foster repeatedly failed to introduce any evidence addressing whether a medical professional is at greater risk of exposure than those outside of such employment. Justice Armstead agreed with the majority, that a court must consider “all of the circumstances” surrounding Ms. Foster’s claim under W.Va. § 23-4-1(f), and in doing so, he finds that Ms. Foster failed to meet the requirements for compensation. As mentioned, Ms. Foster failed to establish that her COVID-19 infection could be “fairly traced to the employment as the proximate cause.” Further, Ms. Foster failed to develop any evidence pertaining to the fourth factor, that the injury does not come from a hazard to which workmen would have been equally exposed outside of the employment, despite having multiple opportunities to do so.

Justice Armstead found Ms. Foster failed to satisfy her burden of establishing the compensability of her claim because she had a potential COVID-19 exposure outside of the workplace. Justice Armstead also found the clear weight of the medical opinions in the record did not support a finding that Ms. Foster’s COVID-19 infection was related to her occupation.

Weighing of the Evidence Submitted in a Workers’ Compensation Claim

Workman v. ACNR Resources, Inc., ___ S.E.2d ___, 2025 WL 1603935 (W.Va., June 6, 2025).           

In West Virginia, worker’s compensation claims require an administrator to provide appropriate sums for medical care under West Virginia Code § 23-4-3(a)(1), and limits the benefits a claimant can receive to the period that they either: reach maximum recovery; are released to return to work; or, have returned to work, under West Virginia Code § 23-4-7a (2005). R resolution of any issue raised in administering Chapter 23 of the West Virginia Code (the Workers’ Compensation Act), such as determining whether to award benefits or allow treatment, must be based on a weighing of all evidence in accord with West Virginia Code § 23-4-1g.

In Workman, the Supreme Court of Appeals of West Virginia held that a claim administrator or any later factfinder in worker’s compensation claims must make its determinations in compliance with West Virginia Code § 23-4-1g(a) (2003). The statute requires a factfinder to weigh all the evidence presented and only then decide the merit or lack thereof of a claim. The Court made clear that any determination made by taking one side’s evidence as dispositive while disregarding all other evidence will not stand as a valid weighing of the evidence presented to a factfinder.

Caitlin Workman worked for ACNR as a maintenance trainee at their Marshall County coal mine and was there on November 8, 2021, when a chain snapped and struck her right upper extremity area. Workman was taken to Wheeling Hospital where she was diagnosed with a right shoulder contusion and back laceration. The next day, a PA at the hospital, Ms. Snyder, noted that Workman had symptoms consistent with an injury to the right upper extremity area (RUE) and determined she could not go back to work. Around November 19, 2021, the claim administrator held the claim compensable, and over the next month, Workman continued to show symptoms of a RUE injury.

Workman engaged in physical therapy but still suffered from many of the same RUE injury symptoms as before, and on December 1, 2021, Ms. Snyder put in a request to the claim administrator for an orthopedic consultation and EMG imaging. On December 15, 2021, Dr. Mukkamala performed a medical evaluation, and determined that Workman had reached her maximum degree of medical improvement (MMI) for compensable conditions. He also determined that she required no further diagnostic studies or treatment, and found that she could return to work. Based on this evaluation, the claim administrator suspended Workman’s temporary total disability (TTD) benefits, in supposed compliance with West Virginia Code § 23-4-7a (2005), and denied the requests that Ms. Snyder made on her behalf for further treatment.

Workman continued to have pain and sought additional medical evaluation which confirmed she was still injured and needed further treatment. She eventually protested the claim administrator’s TTD closure order to the West Virginia Worker’s Compensation Board of Review (BOR). The BOR affirmed the decision citing only Dr. Mukkamala’s evaluation and a preponderance of the evidence as justification, citing to West Virginia Code § 23-4-1g(a). Workman appealed this decision to the West Virginia Intermediate Court of Appeals (ICA) which affirmed the BOR decision. Workman appealed.

The West Virginia Supreme Court of Appeals reversed the ICA holding that the BOR’s decision was in contravention of the requirements stipulated in West Virginia Code § 23-4-1g(a), that a factfinder must weigh all the evidence presented to it and give an explanation as to why they found for one presentation of the facts over another. The Court primarily made this determination based on the fact that the BOR and ICA decisions were almost exclusively founded on the evaluation performed by Dr. Mukkamala. However, they dismissed the evaluations conducted by other medical professionals as to the ongoing nature of Workman’s injuries and the cause of those ongoing injuries. The Court also determined that if the BOR and ICA had properly reviewed the evidence they would have found that Workman had not reached her MMI and as such was still entitled to TTD benefits. The Court reversed the decision of the ICA and remanded the matter to the BOR to award Ms. Bowman TTD benefits as well as additional testing and treatment as needed.

The implications from the Court’s decision seem to be rather straightforward. The Court will hold the fact finders in workers’ compensation claims to the standard expressed in West Virginia Code § 23-4-1g(a): the medical evidence presented to them must be meaningfully examined and weighed. Should the finders of fact choose to disregard a piece of medical evidence presented to them, the Court will not uphold the decisions made unless an explanation is given for their decision. Merely declaring one set of facts or evaluations to be correct is not sufficient, and that without a proper explanation, such a determination will not be upheld. Additionally, and more specific to this case, the Court held that Dr. Mukkamala’s evaluation was invalid because he presented no alternative explanation for the source of the injury and instead declared that it was not from the previous compensable injury.

The Court determined that if a claimant presents evidence as to the source of an injury, it cannot be dismissed without a proper weighing of the evidence presented by both parties as required in W. Va. Code § 23-4-1g(a). A mere declaration presented by the party opposing a claimant will not be dispositive in determining that the claimant does not have a compensable injury. If there is a finding of an equal weight of evidence on the side of the claimant and opposing party, the finder of fact will side with the claimant.

For any party wishing to either bring or defend against a similar claim, Workman establishes the need for parties to present medical evidence that not only relays the symptoms or lack thereof of a party, but also a proper explanation of their presented evidence. A party cannot merely have a physician declare the other party’s assertions incorrect, there must be an explanation as to why they are incorrect or an assertion of an alternative explanation. Should a party fail to do so, a factfinder will not find in their favor and any appeal that party makes will fail. Additionally, if a factfinder fails to properly weigh the evidence presented by both parties, the determination will not be upheld should it be challenged.

Justice Armstead, joined by Justice Bunn, dissented. In his dissent, Justice Armstead states that the BOR’s findings were not clearly wrong and as such should have been given deference. He points out that the BOR addressed the complaints Workman made regarding her symptoms and after a “‘thorough recitation of the evidence submitted by the parties,’” determined that they were not caused by the compensable condition. Because the BOR examined the evidence presented by both parties and it was not clearly wrong, its determination that Workman had reached MMI and should therefore have her TTD benefits ended should have been given deference and upheld.

This decision by the Court makes clear that if a claim administrator or the BOR fails to properly evaluate the evidence presented by all parties, their determination likely be overturned.

For any questions, please contact:

Dill Battle

Spilman Thomas & Battle, PLLC

hdbattle@spilmanlaw.com

304-340-3823

TO: NWCDN STATE NEWS

BY: Dill Battle, Spilman Thomas & Battle, PLLC

With assistance from clerks Carter Capehart, Taiesha Morgan, and Alan Parsons

DATE: August 28, 2024

RE: West Virginia Workers' Compensation News

West Virginia Supreme Court of Appeals

Permanent Partial Disability Calculations and Whole Person Impairment

In the Spring Term of Court in 2024, two decisions by the West Virginia Supreme Court of Appeals have significant impact on apportionment calculations of preexisting awards and conditions in workers’ compensation claims.

Logan-Mingo Area Mental Health, Inc. v. Lester, 902 S.E.2d 768, 2024 WL 2890070 (W. Va. 06/10/2024)

In Lester, the Court clarified the proper usage of the Combined Values Chart of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition to calculate permanent partial disability (PPD) when the claimant has a definitely ascertainable preexisting impairment. Although the holding was narrow, the case has significant impact on the methodology of PPD calculations.

Lester had a previous workers’ compensation injury  in 1999 resulting in a 20% PPD award after application of the Combined Values Chart combining a 14% whole-person impairment for his lumbar spine, and a 7% impairment for his thoracic spine. In 2017, Lester again filed a claim from a fall resulting in more impairment to his lumbar spine and thoracic spine, together with additional impairments to his cervical spine, left shoulder, right knee, and left knee.

After achieving maximum medical improvement for these new injuries, Dr. Bruce Guberman calculated the following whole person impairment: 8% for the cervical spine; 8% for the lumbar spine; 7% for the thoracic spine; 4% for the left shoulder; 4% for the left knee; and 4% for the right knee. He combined these calculations for a total whole-person impairment of 30% when properly applying the Combined Values Chart on page 322 of the AMA Guides Fourth Edition. Dr. Guberman, however, offset the previous lumbar and thoracic spine injuries before combining the impairments which resulted in a 19% whole-person impairment from the new injuries. When added with the previous award, this would mean that Lester would receive compensation for 39% PPD even though he only had a whole-person impairment of 30%.

Dr. Rebecca Thaxton performed her own assessment of Lester’s injuries and used a different method of calculating whole-person impairment. She agreed with the total impairment of 30% and then deducted the 20% previous PPD award, resulting in 10% attributable to the new injuries. Lester was awarded 10% PPD in the new claim, which award was affirmed by the Workers’ Compensation Office of Judges (OOJ) but reversed by the Board of Review (BOR) which granted the 19% PPD award.

The Supreme Court of Appeals reversed the BOR and upheld the 10% PPD award granted by the OOJ. In ruling that Dr. Guberman’s methodology was improper, the Court found it dispositive that Lester would receive an award that was 9% higher than his total whole-person impairment. They also held that Dr. Thaxton’s methodology was the proper usage of the Combined Values Chart when offsetting prior awards.

The Court described the correct calculation method in Syllabus Point Two of the decision:

When a claimant has preexisting, definitely ascertained impairments to multiple body parts and then sustains new compensable injuries that affect the previously impaired body parts, the proper method for apportioning the preexisting impairments is to first determine the claimant's total, unapportioned whole-person impairment using the Combined Values Chart of the American Medical Association's Guides to the Evaluation of Permanent Impairment (4th ed. 1993). Then, the total amount of the claimant's preexisting impairment that has been definitely ascertained must be deducted from the total, unapportioned whole-person impairment to calculate the amount of the claimant's Permanent Partial Disability award.

Syl Pt. 2, Logan-Mingo Area Mental Health, Inc. v. Lester, 902 S.E.2d 768, 769 (W. Va. 06/10/2024).

This opinion has significant impact on workers’ compensation claims when the claimant has been granted prior awards, and emphasizes a stronger weight on those previous awards.

Duff v. Kanawha County Comm’n, No. 23-43, 2024 WL 1715166 (W. Va. 04/22/2024)

The West Virginia Supreme Court of Appeals handed down another opinion with significant impact on claims involving the apportionment of preexisting impairment from prior injuries. In Duff, the Court adopted a stricter definition of “definitely ascertainable” as it appears in West Virginia Code § 23-4-9b, resulting in a shifting of the burden of proof to the employer when asserting the existence of prior impairments.

After Duff was injured on the job, he was granted a 13% permanent partial disability award. This was based upon a medical report by Dr. Prasadarao Mukkamala calculating 25% whole-person impairment in the lumbar spine with 12% apportioned to preexisting conditions arising from a long history of back problems in the lumbar and thoracic spine. This award was affirmed by the Workers’ Compensation Board of Review (BOR), and the West Virginia Intermediate Court of Appeals (ICA).

The Supreme Court of Appeals reviewed the findings of three doctors who examined Duff with an eye on the depth of analysis regarding any preexisting conditions and any resulting apportionment. In order to examine the reports, the Court felt it necessary to define the term “definitely ascertainable” in the applicable governing statute W. Va. Code § 23-4-9b which reads as follows:

Where an employee has a definitely ascertainable impairment resulting from an occupational or a nonoccupational injury, disease or any other cause, whether or not disabling, and the employee thereafter receives an injury in the course of and resulting from his or her employment, unless the subsequent injury results in total permanent disability within the meaning of section one, article three of this chapter, the prior injury, and the effect of the prior injury, and an aggravation, shall not be taken into consideration in fixing the amount of compensation allowed by reason of the subsequent injury. Compensation shall be awarded only in the amount that would have been allowable had the employee not had the preexisting impairment. Nothing in this section requires that the degree of the preexisting impairment be definitely ascertained or rated prior to the injury received in the course of and resulting from the employee's employment or that benefits must have been granted or paid for the preexisting impairment. The degree of the preexisting impairment may be established at any time by competent medical or other evidence. Notwithstanding the foregoing provisions of this section, if the definitely ascertainable preexisting impairment resulted from an injury or disease previously held compensable and the impairment had not been rated, benefits for the impairment shall be payable to the claimant by or charged to the employer in whose employ the injury or disease occurred. The employee shall also receive the difference, if any, in the benefit rate applicable in the more recent claim and the prior claim.

W. Va. Code § 23-4-9b (emphasis added).

The Court read the term “definitely ascertainable” to require a medical expert to offer thorough justification for a conclusion that the claimant had a preexisting condition that warranted apportionment, with the AMA Guides offering the appropriate method of calculation. The Court also read this statute to shift burden to the employer to prove apportionment is necessary in any given case, as seen in Syllabus Point Six:

Under West Virginia Code § 23-4-9b (2003), the employer has the burden of proving apportionment is warranted in a workers’ compensation case. This requires the employer to prove the claimant “has a definitely ascertainable impairment resulting from” a preexisting condition(s). This requires that employer prove that the preexisting condition(s) contributed to the claimant's overall impairment after the compensable injury and prove the degree of impairment attributable to the claimant's preexisting condition(s).

Syl. Pt. 6, Duff v. Kanawha County Commission 2024 WL 1715166 (W. Va. 04/22/2024).

With the burden shifted to the employer to prove that apportionment is necessary, the Court looked to evidence presented by the parties’ respective medical experts. Dr. Mukkamala’s report was seen to have offered little reasoning in his conclusion that Duff’s preexisting conditions justified a 12% apportionment. Dr. Bruce Guberman, who performed an examination on behalf of the claimant, also found that Duff had a whole-person impairment of 25%. However, he offered more justification in his report to come to his conclusion that apportionment was not necessary. Dr. David Soulsby also gave a report that apportioned 12% impairment to preexisting conditions, but the report was found to be inadmissible because it lacked a mandatory lower back examination form. Under this new definition of “definitely ascertainable,” the Court held that Dr. Mukkamala’s report did not present enough proof showing that Duff had a definitely ascertainable prior impairment or a proven degree of impairment that would justify apportionment.

In reversing the BOR and ICA, the Court accepted the reasoning of Dr. Guberman and remanded the case to the BOR to grant a PPD award of 25%. It was determined that since neither of the parties requested the Court to remand to the BOR to rehear the claim in accordance with this new standard, the Court declined to do so, determining the final resolution of the issue on its own accord.

In his separate opinion concurring, in part, and dissenting, in part, Chief Justice Armstead disagreed with the shifting of the burden of proof to the employer, likening it to a treatment as an affirmative defense. He found the Majority’s opinion at odds with prior West Virginia case law requiring the employee to prove his or her claim by “proper and satisfactory proof.” Casdorph v. W. Va. Office Ins. Comm'r, 225 W. Va. 94, 99, 690 S.E.2d 102, 107 (2009). Chief Justice Armstead would have affirmed the rulings of both the BOR and ICA, allowing the apportionment of the prior injury.

Justice Bunn concurred in part and dissented in part. She disagreed with the majority’s handling of remand. She wrote that the parties should not be held to findings of fact on appeal under a new standard without being given the chance to present evidence in accordance with that standard.

The case is a significant change in the way apportionment of preexisting impairment is proven. Greater certainty is now required on behalf of the employer to overcome a presumption that the claimant’s impairment is the result of the injuries that brought rise to the claim. This can be very difficult when claimants are not examined for the necessary impairment ratings under the AMA Guides when the prior injuries did not occur in the context of a workers’ compensation claim. The Supreme Court refused a petition for reconsideration, and employers will have to adapt to this new interpretation.

Compensability

In the fall term 2023, the West Virginia Supreme Court of Appeals discussed the “increased risk” test to analyze compensability of a fall down a set of stairs and found the employee’s act of descending a short staircase did not increase his risk of injury and affirmed the rejection of the claim. Hood v. Lincare Holdings, Inc., 21-0754, 894 S.E.2d 890 (W. Va. Nov 08, 2023).

In Hood v. Lincare Holdings, Incthe Court ruled that the fall was not compensable because the employee was injured while employed but not as a result of his employment. Justice Walker succinctly described the facts of the case:

“While descending a short set of stairs from a customer's porch after making a delivery for his employer, Robert Hood felt a “pop” and pain in his right knee. He was later diagnosed with a right knee sprain. Mr. Hood did not slip, trip, or fall, and he was not carrying anything. The West Virginia Workers’ Compensation Board of Review affirmed previous rulings rejecting the claim, and Mr. Hood appeals. Even though Mr. Hood was injured while working, he failed to show that his work caused the injury. We affirm.”

Hood v. Lincare Holdings, Inc., 894 S.E.2d 890, 893 (W.Va., 2023).

The Court explored the jurisprudence in West Virginia and noted the cases and commentaries on this topic in Arthur Larson, Lex K. Larson, Thomas A. Robinson, Larson's Workers’ Compensation (Rev. Ed. 2023)). In Syllabus Pt 4, the Court held: “In the context of workers' compensation law, there are four types of injury-causing risks commonly faced by an employee at work: (1) risks directly associated with employment; (2) risks personal to the claimant; (3) mixed risks; and (4) neutral risks.” In Syllabus Pt 5, the Court held: “The factfinder may use the increased-risk test when deciding whether an employee sustained a compensable injury under West Virginia Code § 23-4-1(a) (2018), in cases where the injury occurred while the employee was engaged in a neutral risk activity. Under the increased-risk test, even if the risk faced by the employee is not qualitatively peculiar to the employment, the injury may be compensable if he faced an increased quantity of a risk.”

Applying these principles to the facts at hand, the Court looked to the “increased risk” test and found the employee’s act of descending a short staircase did not increase his risk of injury and affirmed the rejection of the claim. Hood v. Lincare Holdings, Inc., 894 S.E.2d 890, 895 (W.Va., 2023).

Permanent Partial Disability in Occupational Pneumoconiosis Cases – Lung Transplant

Rockspring Development, Inc. v. Brown, No. 22-0135, 902 S.E.2d 785 (06/11/2024)

In Rockspring, the Court affirmed the Workers’ Compensation Board of Review’s decision affirming Brown's additional 20% PPD award for occupational pneumoconiosis (OP) impairment. Brown contracted OP based upon his coal dust exposure as an underground coal miner. In August 2016, the claims administrator granted him a 30% PPD award based upon his OP. Brown’s pulmonary function study caused the interpreting physician to diagnose him with a severe obstructive ventilatory defect, a mild restrictive ventilatory defect, and a moderate gas transfer defect. The study demonstrated that his “flow-volume loop pattern [wa]s consistent with chronic obstructive pulmonary disease.” Because the results indicated that his OP had worsened, Brown subsequently requested that his PPD claim be reopened. The claims administrator referred him to the OP Board for evaluation.

Members of the OP Board examined Brown and relevant medical records. The OP Board noted the previously diagnosis of asthma and chronic obstructive pulmonary disease in 2015, and that he was treated for pneumonia in 2017. Brown reported to the OP Board he was on the lung transplant list for several years due to progressive massive fibrosis. The OP Board ultimately determined Brown’s condition had worsened to progressive massive pulmonary fibrosis. The OP Board further relied on the October 2017 Vanderbilt pulmonary function testing, which demonstrated significant impairment. Ultimately, the OP Board concluded sufficient evidence justified an additional 20% impairment rating the diagnosis of OP, for a total of 50% when combined with the previous 30% impairment.

On December 6, 2018, the claims administrator granted Mr. Brown an additional 20% PPD award. Rockspring protested this order to the Office of Judges. During the pendency of the protest proceedings, Brown received a bilateral lung transplant on May 3, 2020. Following the surgery, Brown submitted to a pulmonary function study at Vanderbilt on August 3, 2020. The interpreting physician found no obstruction present in Brown's lungs. Because the study occurred after Rockspring's evidentiary development deadline, Rockspring moved the Office of Judges to admit the medical records regarding Brown's lung transplant and subsequent testing into evidence. The Office of Judges granted the motion.

As Justice Bunn wrote in her decision, the lower tribunals were faced with “a rare set of factual circumstances”. Rockspring Development, Inc. v. Brown, 902 S.E.2d 785, 791. The Court found that the Workers' Compensation Board of Review did not clearly err in determining that Brown was entitled to a 50% PPD award for his OP impairment following bilateral lung transplant, although certain medical documentation indicated that Brown’s pulmonary function was normal following transplant, and the OP Board used pre-transplant pulmonary function testing to determine his impairment. Members of the OP Board provided testimony before the Office of Judges that support its decision to use the pre-transplant pulmonary function testing to determine Brown's impairment, including that Brown clinically “still suffers” and that, while he had no discernable pulmonary function impairment due to the transplant surgery, he faces other medical issues due to the transplant and has a shortened life expectancy.

The Court concluded:

“There was undisputed evidence in the record below to demonstrate that Mr. Brown contracted OP and suffered a resulting measurable impairment for many years. In the absence of statutory guidance on whether and how a transplant surgery that occurs during the pendency of the claim impacts an impairment rating, we simply cannot conclude that the Board of Review erred, particularly in light of the deference they are afforded.”

Rockspring Development, Inc. v. Brown, 902 S.E.2d 785, 792 (W.Va., 2024).

Collateral Estoppel

Ruble v. Rust-Oleum Corporation, No. 22-0329, 902 S.E.2d 873 (06/12/ 2024)

The West Virginia Supreme Court of Appeals determined that the plaintiff’s workers’ compensation claim did not preclude a related civil claim from being brought under collateral estoppel. Ruble v. Rust-Oleum Corp., No. 22-0329, 902 S.E.2d 873 (06/12/ 2024). Justice Hutchison summarized the issue presented to the Court: “Specifically, we consider whether collateral estoppel (sometimes called “issue preclusion”) applies such that a finding in a West Virginia workers’ compensation decision may be used to preclude litigation of that issue against a third party in a West Virginia circuit court." Id. at 1.

In Ruble, the plaintiff sued his past and current employers, along with two chemical suppliers, claiming injury suffered at work after breathing in toxic fumes. Id. at 2-3. Contemporaneously, the plaintiff filed a workers’ compensation claim against his most recent employers and chemical suppliers in circuit court. Id. at 3. The administrative claim was denied, for which the plaintiff appealed and was again denied before the West Virginia Workers’ Office of Judges (“the OOJ”). Id. at 3-4. It important to note that there was no hearing before the OOJ, and the only evidence presented included the proffered record from the administrative claim. Id. at 3. The OOJ found that the plaintiff did prove, by a preponderance of the evidence, that he developed an occupational disease “in the course of and as a result of employment.” Id. at 4.   

The plaintiff appealed to the West Virginia Workers’ Compensation Board of Review (“the Board”), and was also denied. Id. 3-4. As a result, the plaintiff voluntarily dismissed their claim against both employers. Id. at 5. The chemical suppliers also moved to have the claims against them dismissed, under the doctrine of collateral estoppel, for which the court granted. Id. at 5-6. The plaintiff appealed the decision of the circuit court. Id. at 6.

Collateral estoppel is a principle that completely bars a claim from being brought if certain elements are met. Id. at 7. The only element that the Court questioned states “the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.” Id. at 7; Syl pt. 1, State v. Miller, 194 W. Va. 3, 6, 459 S.E.2d 114, 117 (1995). The Court analyzed the processes during the workers’ compensation proceedings and found that they were significantly different from the claims in circuit court. Id. Specifically, citing differences in the procedural and statutory rules in the collection, presentation, and development of discovery and evidence. Id. at 9-13. The Court found that it hindered the plaintiff’s ability to prove the claim itself and the subsequent damages. Id. The smaller award amounts allowed in workers’ compensation claims limit workers’ compensation attorney’s from spending large amounts to fully prepare claims against defendants were also noted. Id. at 13-14. For those reasons, the Court found that the plaintiff did not have a “full and fair opportunity to litigate[ ]” his claims before the workers’ compensation tribunals. See id., at 14. The Court mentioned:

“Upholding the circuit court’s dismissal would deter employees from seeking workers’ compensation until any third-party claims have been developed and resolved. . . contrary to the Legislature’s command that employees injured on the job by a third-party are allowed to purse both a workers’ compensation claim and a claim against the third party.”

Id.

Justice Armstead dissented, believing that it “unjustly call[s] into question the applicability of collateral estoppel in relation to a myriad of other administrative proceedings and agencies.” Ruble, No. 22-0329, 14-16 (W. Va. Supreme Court, June 12, 2024) (Armstead, C.J., dissenting). Finding that under the facts, the plaintiff received a “second bite at the apple” to prove causation against a third party, which the doctrine of collateral estoppel and West Virginia case law has prohibited. Id. at 1. See Steel of West Virginia, Inc. v. West Virginia Office of the Insurance Commissioner, No. 11-1607 (W. Va. Supreme Court, November 16, 2012)(memorandum decision). 

For any questions, please contact:

Dill Battle

Spilman Thomas & Battle, PLLC

hdbattle@spilmanlaw.com

304-340-3823