State News : West Virginia

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 have 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

Several bills of interest 

Senate Bill 597 grants twenty weeks (or 5% permanent partial disability) awards of worker's compensation benefits to claimants with no measurable pulmonary impairment from occupational pneumoconiosis (OP). Additionally, claimants with an x-ray diagnosis of pulmonary massive fibrosis or complicated pneumoconiosis without measurable impairment would be granted a 25% permanent partial disability award. The OIC’s Fiscal Note Memorandum states that the additional benefits are likely to significantly increase the expenses and could cause a deficit for the Worker's Compensation Old Fund and create adverse claims development in the other funds administered by the OIC with exposure to OP claims. The increased benefits are likely to raise private insurance carrier worker's compensation insurance premium rates for employers in industries where exposure to OP exists. Senate Bill 597 is also likely to significantly increase the worker's compensation expense for self-insured employers in the coal industry. As drafted, Senate Bill 597 appears to be retroactive and would effectively restore the presumptive 5% OP award for both past (July 1, 2003 forward) and future OP claims. Additionally, it is unclear if the 5% presumptive award is to be granted in addition to the 25% award for those diagnosed with pulmonary fibrosis or complicated pneumoconiosis, or if those two awards are mutually exclusive.

Senate Bill 286 would extend the time within which a claimant may obtain an evaluation from the Occupational Pneumoconiosis Board. In its Fiscal Note Memorandum, the OIC stated it is unable to estimate the fiscal impact of SB 286. The OIC does not have data regarding any OP claim applicants being denied a hearing before the OP Board due to time limitations exceeding three years or due to the lack of an impairment diagnosis. The OIC believes that SB 286 would increase the expenses of the OIC, but the OIC is unable to quantify the increased expenses accurately at this time. The OIC funds the costs of the OP Board and any increase in the number of examinations undertaken by the OP Board would increase the expense of the OIC.

House Bill 4283 would create a new program and new Fund called the West Virginia Black Lung Program, which would create entitlement benefits and a presumptive award for those benefits for occupational pneumoconiosis. In its Fiscal Note to this proposed bill, the OIC stated it is unable to estimate all of the potential cost to the State for HB 4283. The OIC did note some technical issues with HB 4283. West Virginia Code §23-4D-2 grants the presumptive benefit to anyone who has worked in WV for a period of 10 years during the 15 years immediately preceding the Date of Last Exposure. The language in the proposed bill does not limit the exposure to coal dust, so any type of minute dust particle would appear to qualify. The language in the proposed bill does not limit the benefits to WV residents, but would be available to anyone who has worked in WV for the above specified period of employment. The benefit to be granted is a fixed amount and is to be paid in addition to any state or federal disability award. The bill appears to be retroactive in nature. HB 4283 creates a new general revenue fund, but does not clearly identify who is to administer the Fund. The OIC noted the State Tax Department should be consulted regarding the increased severance taxes and the creation of the new taxes on energy producing activities.

HB 4687 which would repeal the law making prime contractors liable for the failure of subcontractors to obtain workers’ compensation coverage. The OIC’s Fiscal Note predicted HB 4687, if enacted, would have a significant impact on the Uninsured Employers Fund (UEF). Present law provides that if a subcontractor is neither self-insured, nor covered by a workers' compensation insurance policy, then the prime contractor rather than the state's UEF is responsible for payment of statutory workers’ compensation benefits: provided, that receipt of the prime contractor of a certificate of coverage from a subcontractor shall be deemed to relieve the prime contractor of responsibility regarding the subcontractor's workers' compensation coverage. The OIC stated in its Fiscal Note that it has not had to issue an assessment in order to raise funds for the UEF since its creation in 2006. However, in the event that additional funding is needed, the OIC has the statutory authority to issue an assessment to private insurance carriers, which may be passed on to employers through a policy surcharge, as well as to self-insured employers to raise the necessary funding for the UEF.

HB 5244 relates to portable benefit plans for independent contractors. It creates a new State Portable Benefit Fund to provide portable benefit plans that individuals can purchase. A benefit plan would be assigned to an independent contractor and would not be associated with the hiring party. The statute has language that a hiring party can contribute to these plans but the contribution would not be construed as an element of an employment relationship for purposes of determining workers’ compensation coverage.

SB 170 expands coverages related to professional firefighters and a rebuttable presumption to include bladder cancer, mesothelioma, and testicular cancer to join leukemia, lymphoma, and multiple myeloma previously passed by statute. The purpose of this bill is to include three types of cancer for which rebuttable presumption of injury from employment exists for firefighters and provides that the presumption for the three types of cancer expires July 1, 2027, unless extended by the Legislature.

HB 4216 reaffirms and enhances the workers compensation exclusive remedy rule or doctrine and would repeal the deliberate intent statute in its entirety.

For the mining industry members, eight bills not included on the attached Legislative Monitor Report have been introduced to authorize the Office of Miners’ Health Safety and Training (WVMHST) to promulgate legislative rules for a variety of safety issues including substance abuse screening, standards and procedures. The bills were referred to the Judiciary Committee on 1/19/24.

• HB 4090: Authorizing the WVMHST to promulgate a legislative rule relating to safety provisions for clearing crews

• HB 4091: Authorizing the WVMHST to promulgate a legislative rule relating to protective clothing and equipment

• HB 4092: Authorizing the WVMHST to promulgate a legislative rule relating to reporting requirements for independent contractors

• HB 4093: Authorizing the WVMHST to promulgate a legislative rule relating to assessing health and safety violation penalties

• HB 4094: Authorizing the WVMHST to promulgate a legislative rule relating to the application

• HB 4095: Authorizing the WVMHST to promulgate a legislative rule relating to governing the program for the sharing of information between employers

• HB 4096: Authorizing the WVMHST to promulgate a legislative rule relating to substance abuse screening, standards and procedures

• HB 4097: Authorizing the WVMHST to promulgate a legislative rule relating to operating diesel equipment in underground mines in West Virginia

Dill Battle, Executive Secretary

West Virginia Workers’ Compensation Association

www.wvwca.net

o 304-340-3823

m 304-206-1986

dbattle@spilmanlaw.com

West Virginia Supreme Court of Appeals

Statute of Limitations for filing Occupational Pneumoconiosis claim

Argus Energy, LLC v. Marenko, 887 S.E.2d 223, 225–31 (W.Va., 05/01/2023)

http://www.courtswv.gov/supreme-court/docs/spring2023/21-0209-hutchison-p.pdf

In Argus Energy, LLC v. Marenko, 887 S.E.2d 223, 225–31 (W.Va., 2023), the Court affirmed the Board of Review’s finding that Marenko timely filed his application for occupational pneumoconiosis benefits under W. Va. Code § 23-4-15(b) because it was filed within three years from and after a diagnosed impairment due to occupational pneumoconiosis was made known to the claimant by a physician. Relying on the Supreme Court's ruling in Pennington v. West Virginia Office of the Insurance Commissioner, 241 W.Va. 180, 820 S.E.2d 626 (2018), the Court affirmed the Board of Review’s order that specifically found, “'[o]n the Physician's Report of Occupational Pneumoconiosis, the medical provider said [Mr. Marenko's] capacity for work has been impaired by occupational pneumoconiosis.’” Even though the signature on the Physician's Report of Occupational Pneumoconiosis is not legible, the Court found it “undisputed that the Report was signed by someone and the report form was itself entitled ‘Physician's Report of Occupational Pneumoconiosis[.]’ (emphasis added). Since the form in question was a Physician's Report of Occupational Pneumoconiosis, and since Argus submitted no evidence in rebuttal, we do not believe that the [Board of Review] clearly erred in finding that the pertinent requirements of Pennington were satisfied—that Mr. Marenko filed his Occupational Pneumoconiosis claim within three years from and after a diagnosed impairment due to occupational pneumoconiosis was made known to him by a physician.”

Intermediate Court of Appeals of West Virginia

Compensability of Preexisting Conditions

Blackhawk Mining, LLC v. Argabright, ___ S.E.2d ___, 2023 WL 3167476, (W.Va. App., 05/01/2023)

http://www.courtswv.gov/intermediate-court/docs/Spring2023/22-ICA-262-greear.pdf

The ICA continues to wrestle with the questions of the compensability of preexisting conditions and the impact on more recent workplace injury. The ICA analyzed the Supreme Court decisions 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). When those two cases are read in unison, they do not render preexisting injuries compensable. According to the ICA in Blackhawk Mining, LLC v. Argabright, compensability of preexisting injuries is limited only to discrete new injuries and disabilities that manifest following the compensable injury.

Harris Argabright, an electrician for Blackhawk Mining, was injured at work on February 26, 2021, when he tightened a strap on a speed reducer and felt something pull in his lower back/pelvis. Mr. Argabright sought medical treatment that day and was diagnosed with a lumbar sprain. X-rays revealed no acute abnormality, mild L3-L4 disc space narrowing, mild L5-S1 disc space narrowing, and bilateral facet arthropathy.

Lumbar spine MRI performed several weeks after the injury showed degenerative disc desiccation and suggestion of mild disc bulge at T11-T12, and minimal to mild disc bulges from L2-L3 through L5-S1. Claimant’s treating physician recommended a referral to a pain specialist, Dr. Patel, due to unresolved pain, and noting an increase of pain, a decrease in range of motion, and a worsening symptoms. In an IME performed on May 11, 2021, Dr. Mukkamala diagnosed lumbar sprain superimposed upon preexisting noncompensable degenerative spondyloarthropathy, and found that Mr. Argabright had reached maximum medical improvement. Dr. Mukkamala recommended an 8% whole person impairment and apportioned 5% to preexisting conditions. Dr. Mukkamala also found there was no indication to refer Mr. Argabright for surgery or any other treatment, as there was no objective evidence of radiculopathy and no spinal instability. Based on this report, the claim administrator issued an order dated May 17, 2021, which denied the request for a referral to Dr. Patel.

On June 21, 2021, Dr. Muscari submitted a diagnosis update requesting that “disc bulge L2, L3, L5, S1” be added as compensable conditions in the claim on the basis that the MRI showed multiple disc bulges. The claim administrator denied this request. Evidence submitted by Mr. Argabright included Dr. Muscari’s explanation that the referral to Dr. Patel was necessary because of Mr. Argabright's continuing symptoms and disability. Dr. Muscari also explained Mr. Argabright was able to work his entire adult life as a coal miner prior to this work-related injury and had no previous lumbar pain.

On January 15, 2022, Michael Brooks, M.D., issued an age of injury analysis upon review of the March 9, 2021, MRI. Dr. Brooks opined that the findings on the MRI were consistent with chronic, degenerative disc disease and facet joint arthrosis.

On May 19, 2022, the Office of Judges reversed the claim administrator's orders, found the disc bulges at L2-L3 through L5-S1 to be compensable, and ordered a referral to Dr. Patel. The OOJ reasoned that Mr. Argabright's preexisting disease or condition was asymptomatic prior to the compensable injury, but after that injury, his symptoms appeared and were continuously manifested. The OOJ found that based on the preponderance of the evidence, Mr. Argabright had shown that the disc bulges at L2-3 through L5-S1 should be held compensable, and that the referral to Dr. Patel was medically related and reasonably required. The Board of Review affirmed the OOJ's decision in its October 21, 2022, order. Blackhawk appealed the BOR’s order but Blackhawk's appeal was limited solely to the issue of compensability of the disc bulges; it did not appeal the referral to Dr. Patel.

On appeal, Blackhawk asserted the BOR committed clear legal error determining that Mr. Argabright's disc bulges at L2-L3 through L5-S1 were compensable. Blackhawk argues that the preponderance of the evidence establishes these conditions were chronic and preexisting and, while aggravated or exacerbated, were not discrete new injuries, and thus, not compensable. Mr. Argabright response argument was twofold. First, he argues that there was a lack of evidence in the record to show the bulging discs existed prior to his compensable injury. Second, he argues compensability under Moore v. ICG Tygart Valley, LLC, 247 W. Va. 292, 879 S.E.2d 779 (2022) based on the manifestation of his symptoms after the compensable injury.

The ICA first addressed the sufficiency of the evidence to support a determination that Mr. Argabright's disc bulges were caused by the compensable injury. The March 9, 2021, MRI report revealed degenerative disc desiccation, as well as minimal to mild disc bulges, and the report does not indicate that the injuries were of a traumatic nature. Dr. Mukkamala, after completing an IME of Mr. Argabright and reviewing relevant records, diagnosed Mr. Argabright with lumbar sprain superimposed upon preexisting degenerative spondyloarthropathy. Dr. Mukkamala found that while the lumbar sprain was caused by the compensable injury, the degenerative condition was preexisting. Dr. Brooks authored an age of injury analysis and determined that Mr. Argabright suffered from chronic degenerative disc disease and chronic facet joint arthrosis from L2-3 through L5-S1. The ICA found that the MRI and the reports of Drs. Mukkamala and Brooks support a conclusion that the disc bulges were preexisting.

In contrast, the ICA found minimal justification to support Dr. Muscari’s request that the disc bulges be made compensable as caused by the compensable injury. The ICA found that to the extent that the Board of Review's order finds that the disc bulges were caused by the compensable injury, that finding is clearly wrong.

Next, Mr. Argabright argued that because his preexisting condition was asymptomatic until the compensable injury, his preexisting disc bulges should be found compensable under the rebuttable presumption announced in Moore. The ICA disagreed and found Mr. Agrabright's argument failed  to consider the Moore presumption in unison with the Supreme Court of Appeals of West Virginia's (“SCAWV”) ruling in Gill v. City of Charleston, 236 W. Va. 737, 783 S.E.2d 857 (2016), which Moore explicitly reaffirmed:

“[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.” Syl. Pt. 3, Gill v. City of Charleston, 236 W. Va. 737, 783 S.E.2d 857 (2016).

Syl. Pt. 4, Moore, 247 W. Va. 292, 879 S.E.2d 779 (2022). The Moore Court then expanded on Gill, 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 other facts of the case, raises a natural inference of causation. This presumption is not conclusive; it may be rebutted by the employer.

Syl. Pt. 5, 247 W. Va. 292, 879 S.E. 2d 779 (2022).

The ICA found that Gill unambiguously held that a discrete new injury may be compensable when it arises from an aggravation of a preexisting injury. The preexisting condition itself does not become compensable, only the discrete new injury. Moore reaffirmed and expanded on the holding in Gill and therefore the holdings in both cases must be considered together. When read in unison, Gill and Moore do not render preexisting injuries compensable. Compensability is limited only to discrete new injuries and disabilities that manifest following the compensable injury.

In the case before it, the ICA found that the Board of Review only addressed syllabus point five of Moore and determined the compensability of Mr. Argabright's preexisting disc bulges based on the manifestation of his symptoms following the compensable injury. Because the Board of Review did not consider Moore and Gill together, the ICA reversed the Board of Review's order, in part, and found that it erred in summarily concluding that Mr. Argabright's preexisting disc bulges were compensable.

Even though the disc bulges are not compensable under this analysis, the treatment of the newly symptomatic disability is appropriate, according to the ICA. In Moore, the SCAWV found cervical radiculopathy as a compensable condition, not the preexisting cervical degenerative disc disease that was asymptomatic prior to the compensable injury. It reasoned that the evidence showed the compensable injury caused Mr. Moore to develop cervical radiculopathy, a new distinct injury. In the case before it, the ICA found that Mr. Argabright's preexisting discs and degenerative disc desiccation were asymptomatic prior to the compensable injury. Following the compensable injury, Mr. Argabright developed pain in the areas affected by the preexisting conditions. The ICA found that the treatment of that pain is presumed to flow from the compensable injury, not the preexisting condition. In this matter, Blackhawk did not rebut the presumption, nor did it contest the order for referral to Dr. Patel on appeal. Accordingly, the ICA affirmed the Board of Review's order, in part, with respect to the referral to Dr. Patel at the pain clinic. The ICA reversed, in part, and affirmed, in part, the Board of Review's October 21, 2022, order.

Compensability – Injury Not Resulting From Employment

Kittle v. ACNR Resources, Inc., No. 22-ICA-204, 2023 WL 3167482 (W.Va. App. 05/01/2023)

http://www.courtswv.gov/intermediate-court/docs/Spring2023/22-ICA-204-greear.pdf

Mr. Kittle was injured on September 29, 2021, while employed by ACNR Resources, Inc., (“ACNR”). Mr. Kittle was relocating fans in ACNR's shower house when he felt a popping sensation in his foot followed by immediate foot pain and difficulty walking. Mr. Kittle did not actually have a fan in his hand at the time of injury. Mr. Kittle does not allege that there were any defects in the floor of ACNR's shower house. Mr. Kittle promptly reported his injury to ACNR's safety personnel and was advised to seek medical treatment at the emergency room. However, Mr. Kittle attempted to continue to work despite his injury. On September 30, 2021, Mr. Kittle sought medical treatment at MedExpress. MedExpress ordered non-weight bearing x-rays, which showed no fracture in Mr. Kittle's foot but did show degenerative changes. Mr. Kittle was diagnosed with a left foot sprain. On October 7, 2021, the claim administrator denied Mr. Kittle's claim on the basis that the injury did not result from his employment with ACNR. Mr. Kittle protested this order.

On appeal, Mr. Kittle asserted that the BOR committed clear legal error in its determination that his foot injury was not a result of his employment. Mr. Kittle argues that he was moving large fans from one part of the ACNR shower house to another, a duty of his employment, when his injury occurred, and that walking is a necessary required function of his duties.  ACNR argues in response that the BOR did not err in finding that Mr. Kittle was not injured in a manner “resulting from this employment” as Mr. Kittle was “simply walking.”

On October 19, 2021, Mr. Kittle was examined by Daniel Fijalkowski, M.D., a podiatrist. Dr. Fijalkowski ordered weightbearing x-rays, which showed a fracture of the fourth metatarsal of Mr. Kittle's left foot. Dr. Fijalkowski diagnosed Mr. Kittle with a fracture, fitted him with a boot to immobilize his foot, and opined that he was unable to work until he could be medically cleared.

On April 1, 2022, the Office of Judges affirmed the claim administrator's order rejecting Mr. Kittle's claim, reasoning that Mr. Kittle's injury was not a result of employment. On September 27, 2022, the Board of Review affirmed the OOJ's order, and Mr. Kittle filed an appeal.

The ICA held that in order to satisfy the direct causal connection required in workers’ compensation claims, a claimant has the burden of establishing, by a preponderance of the evidence, that the injury complained of was caused by or contributed to some condition or aspect of employment that created an increased risk of injury. Failure to establish an employment specific element that increased the risk of injury will bar recovery. 

The ICA found that it is undisputed that Mr. Kittle did not have a fan in his hand at the time of injury and did not allege any defects in the floor of the shower house. Had Mr. Kittle been carrying an industrial fan at the time of his injury, then he may have been able to meet his burden. Similarly, if Mr. Kittle had been walking down a steep incline or on an uneven surface, a different result may have been compelled. Mr. Kittle's injury clearly occurred during an activity (walking) that did not present an increased risk of injury. Thus, the injury in question was received “in the course of” Mr. Kittle's employment, but was not “resulting from” that employment.

Compensability – Injury Resulted After Deviation from Employment

West Virginia Heating & Plumbing Company v. Carroll, No. 22-ICA-167, 2023 WL 3579092 (W.Va. App. 05/22/2023)

http://www.courtswv.gov/intermediate-court/docs/Spring2023/22-ICA-167_so.pdf

Claimant Tyler J. Carroll was a passenger in a company van driven by his supervisor Mr. Bragg. They were employees of West Virginia Heating and Plumbing Company (“WVHP”), and were returning to Charleston from a job assignment in Pittsburgh. The van stopped at the scene of an accident on Interstate 79. Mr. Carroll suffered serious injuries after exiting the van in an attempt to render aid to the driver of a truck that had just been involved in the accident. WVHP appealed the decision of the Office of Judges which reversed the claim administrator's order rejecting Mr. Carroll's application for benefits. The OOJ decision held Mr. Carroll's claim compensable, stating that his injuries were sustained in the course of and as a result of his employment. WVHP argued on appeal that the OOJ's decision was clearly wrong because the evidence shows Mr. Carroll's injury did not occur as a result of his employment. Specifically, WVHP argued Mr. Carroll was not injured as a result of his employment because prior to his injury, he left and deviated from his duties of employment when he exited the company van and crossed I-79 to render aid to a driver of a truck that had just crashed. WVHP argues that Mr. Carroll was injured as a result of this deviation from his employment, and therefore, Mr. Carroll was not injured as a result of his employment.

              On appeal, the ICA analyzed WHCP’s assignments of error with respect to the OOJ’s findings on the legal principles of the “Going and Coming Rule”, Erin’s Law, and the Good Samaritan and positional risk doctrines. The ICA reversed and remanded the OOJ’s decision to the Board of Review for a proper analysis under the applicable West Virginia law in accordance with the ICA’s opinion.

After a lengthy discussion of the “well established” jurisprudence of the “going and coming rule” in West Virginia, the ICA acknowledged the parties conceded Mr. Carroll was in the course of employment at the time of his injury. The ICA found the issues of the “going and coming rule” not dispositive of the ultimate issue in the case whether Mr. Carroll was injured as a result of his employment, and therefore the ICA did not further address the rule.

The ICA examined the OOJ’s interpretation of West Virginia Code §§ 17C-4-1(a) and 17C-4-3(b), known as Erin’s Law. The OOJ found that Mr. Carroll was legally obligated to stop and render aid under the statute. Erin’s Law requires individuals who are “involved in a crash” to stay at the scene, provide information, and render “reasonable assistance” to an injured person “if physically able to do so.” §§ 17C-4-1(a), 17C-4-3(b). In regard to Erin's Law, the ICA found that Carroll’s need to take evasive action to avoid the out of control truck did not make him “involved in a crash” such that he had a statutory duty to remain at the scene and render aid placing his rescue within the scope of employment. The ICA found Carroll not to be involved in the accident since he was able to avoid involvement in the accident, and there is no evidence that he caused the accident. The ICA found the OOJ erred in finding that Carroll had a statutory duty under W. Va. Code § 17C-4-1(a) and §17C-4-3(b) to undertake rescue.

The ICA noted that applying the Good Samaritan, rescue, and the positional risk doctrines in the workers’ compensation context is a matter of first impression in West Virginia. The ICA’s opinion relied on Professor Larson’s discussion of these topics and noted:

Each legal doctrine is understood as a separate concept in Larson's treatise on workers’ compensation. See 3 Arthur Larson & Lex K. Larson, Larson's Workers’ Compensation Law § 27.02[2][a], § 28.01[1] (2022).

West Virginia Heating & Plumbing Company v. Carroll, 2023 WL 3579092, at *6 (W.Va.App., 2023).

With respect to the Good Samaritan doctrine, the ICA noted “Larson discusses the Good Samaritan doctrine in the context of employees performing small favors and generating goodwill among the public; however, the act must still confer a benefit of some kind to the employer. [Larson's Workers’ Compensation Law] § 27.02[2][a].” (Footnote omitted.) The ICA disagreed with the OOJ that WVHP benefitted by Carroll’s actions in rescuing the truck driver because he had a statutory duty to stop and render aid. Because Erin’s Law does not apply, Carroll’s actions did not benefit the employer according to the ICA. Also, the benefit of Carroll returning WVHP’s tools in the company van to Charleston has no connection with leaving the work van to render aid on a public road. Therefore, the ICA found the OOJ erred in concluding Claimant was injured in the course of and resulting from his employment.

In its analysis of the positional risk doctrine, the ICA noted it is an extension of the traditional rescue doctrine but does not require that an employee’s act confer a benefit to the employer, citing Larson § 28.02[3]. In the case before the ICA, the ICA found that the requirements and performance of Carroll’s employment thrust him into contact with an emergency situation. His employment brought him to a place where it was probable that he and his co-worker and driver of the van would have a natural reaction to help the injured truck driver. However, in the absence of any West Virginia legislation or controlling authority by the West Virginia Supreme Court providing for the adoption of the positional risk doctrine in a workers’ compensation setting, the OOJ erred in applying it to this case. The ICA was not prepared on its own to adopt the positional risk doctrine in workers’ compensation law. The ICA found that based on the applicable law in West Virginia, the OOJ committed error applying a doctrine not yet recognized in West Virginia workers’ compensation jurisprudence:

Although Mr. Carroll's acts are clearly a laudable, selfless response, this Court is not prepared on its own to adopt the positional risk doctrine in workers’ compensation law. Based on the applicable law before the OOJ, it was error to apply a doctrine not yet recognized in West Virginia's workers’ compensation jurisprudence.

West Virginia Heating & Plumbing Company v. Carroll, 2023 WL 3579092, at *7 (W.Va.App., 2023).

The ICA concluded that the Legislature or the West Virginia Supreme Court of Appeals must recognize the positional risk doctrine. Thus, absent such law, Carroll’s injuries are not compensable because they did not occur as a result of his employment under the doctrines discussed in the ICA’s opinion. The ICA found that a question remains as to why Carroll temporarily stepped outside his employment when he exited the company van on the interstate to render aid to a driver injured in an accident in which he was not involved, whether any company policies or procedures caused him to do so, or whether he reacted to the statements and/or actions of his supervisor, which amount to express or implied authorization to engage in such conduct. The ICA remanded the case for consideration by the Board of Review of evidence related to these issues.

Payment of Permanent Partial Disability Benefits

Thompson v. Western Construction, Inc., ___ W. Va. ___, 889 S.E.2d 300 (W.Va. App. 6/15/2023)

http://www.courtswv.gov/intermediate-court/docs/Spring2023/23-ICA-26%20Signed%20Opinion.pdf

In Thompson v. Western Construction, Inc., ___ W. Va. ___, 889 S.E.2d 300 (W.Va. App. 6/15/2023), the ICA addressed the question of whether a claimant was entitled to compensation under West Virginia Code § 23-4-6(e)(2) (2005) at the rate of six weeks for each percent of disability because he was not employed by Western Construction when he was released to return to work. The claim administrator granted Mr. Thompson a 7% permanent partial disability award, and the 7% permanent partial disability award was paid out at a benefit rate of four weeks for each percent of disability pursuant to West Virginia Code § 23-4-6(e)(1). The claim administrator based its decision Mr. Thompson was entitled to compensation at the rate of four weeks for each percent of disability because he was terminated from his job in January of 2020, and was not a current employee at the time the award was paid because Mr. Thompson was not released to return to work until September 14, 2021. The Board of Review affirmed the decision and Mr. Thompson appealed. The Court of Appeals held that Mr. Thompson did not have to be a current employee to recover six weeks of compensation for each percent of disability.

West Virginia Code § 23-4-6 states that:

Where compensation is due an employee under the provisions of this chapter for personal injury, the compensation shall be as provided in the following schedule:

. . . .

(e)(1) For all awards made on or after the effective date of the amendment and reenactment of this section during the year two thousand three, if the injury causes permanent disability less than permanent total disability, the percentage of disability to total disability shall be determined and the award computed on the basis of four weeks' compensation for each percent of disability. . . .

(2) If a claimant is released by his or her treating physician to return to work at the job he or she held before the occupational injury occurred and if the claimant's preinjury employer does not offer the preinjury job or a comparable job to the employee when a position is available to be offered, the award for the percentage of partial disability shall be computed on the basis of six weeks of compensation for each percent of disability.

West Virginia Code § 23-4-6(e)(1) requires a four-week benefit rate for each percent of disability. Under West Virginia Code § 23-4-6(e)(2), the benefit rate increases to six weeks when the employer fails to reinstate the employee in his or her preinjury job or offer a similar position. Mr. Thompson claimed the 7% permanent partial disability should have been paid at a benefit rate of six weeks, as opposed to four weeks, because Western Construction did not offer a preinjury position or a comparable position.

The ICA found that the definition of “employees” under § 23-4-6(e)(2) is not limited to current employees, and Mr. Thompson’s permanent partial disability award was to be paid at the six-week benefit rate rather than the four-week benefit rate.

W. Va. Code § 23-4-6 uses the word “employee,” but it is not limited to claimants who are currently employed based on the language of the statute. The word “shall” in § 23-4-6(e)(2) is used to afford a mandatory connotation that the claimant must be paid at the six week rate if the employer did not offer a preinjury job or a similar position. Additionally, the statute does not state that the claimant must be a current employee to be entitled to the six-week benefit rate – the relevant factor is that the claimant was an employee at the time of the injury. W. Va. Code § 23-4-6(e)(2) only requires (1) a claimant; (2) be released by a physician to return to work at the job he held before the occupational injury occurred, and (3) that the employer does not reinstate the preinjury job or a comparable position. All conditions were met in this case.

The ICA found that a claimant does not have to be a current employee under W. Va. Code § 23-4-6(e)(2) because the statute does not expressly state this requirement. The ICA reversed the Board of Review’s order and instructed Mr. Thompson to be paid his permanent partial disability award at the six-week benefit rate.

Article prepared by:

H. Dill Battle III, Esquire

Spilman Thomas & Battle, PLLC

300 Kanawha Blvd, East

Charleston, West Virginia 25301

304-340-3800

hdbattle@spilmanlaw.com