State News : West Virginia

In Bandy v. Murray American Energy, Inc., No. 16-1165 (W. Va. October 18, 2017), the West Virginia Supreme Court of Appeals addressed Mr. Bandy's constitutional challenge to the mandatory statutory attorney fee in W. Va. Code § 23-5-16(c). In a Memorandum Decision, the Court ruled the statutory maximum attorney fee is not an unconstitutional interference with claimant's access to the judicial system and the deprivation of due process of law. In light of the Florida Supreme Court decision inCastellanos v. Next Door Company, the West Virginia Supreme Court sidestepped the issue, stating that although the claimant couched his appeal as a constitutional issue, they found it to be a policy argument, and noted that policy arguments are more appropriately directed to the Legislature. The Court found that the attorney fee statute does not deprive claimants of due process or the ability to retain counsel.  

Carpal Tunnel Syndrome

In Stover v. Charleston Area Medical Center, No. 16-1195 (W. Va. September 15, 2017), Ms. Stover alleged she developed bilateral carpal tunnel syndrome in the course of and resulting from her employment as a data entry clerk and linen department worker. An EMG performed on January 28, 2014, showed severe bilateral CTS. Her doctor noted that Ms. Stover used to be a data entry professional but lost her job two years prior because she could not perform her duties due to numbness and tingling in both hands. Her chronic problems included diabetes, fibromyalgia, hypertension, and obesity. She was assessed with carpal tunnel syndrome and cubital tunnel syndrome. Her doctor advised Ms. Stover that part of her symptoms could be due to diabetic neuropathy. Ms. Stover underwent right carpal tunnel release surgery on April 29, 2014. Her workers' compensation claim was rejected. An IME doctor opined the diagnosis of bilateral carpal tunnel syndrome is solely the result of Ms. Stover’s personal risk factors and is unrelated to her former occupation. Dr. Bailey stated that she has suffered many other consequences of her long standing morbid obesity including type II diabetes, diabetic peripheral neuropathies of her hands and feet, hypertension, high cholesterol, gastroesophageal reflux disease, and early onset arthritis. In its 5-0 Memorandum Decision, the Court concluded Claimant's job duties do not involve awkward wrist positioning, vibratory tools, significant grip force and high force of repetitive movements that have been shown to contribute to carpal tunnel syndrome. In addition, she has pre-existing medical conditions known to cause carpal tunnel syndrome.

Going to and Coming from Work Rule

In Ferrell v. Charleston Area Med. Ctr., No. 16-0581, (W. Va. June 8, 2017), the Supreme Court affirmed a prior decision to reject plaintiff's claim for workers' compensation benefits after plaintiff was struck by a delivery truck in a public street as she walked to work. The Court here relied on the rule from Williby v. W. Virginia Office Ins. Com'r, 686 S.E.2d 9 (W.Va. 2009), which states that an injury incurred while traveling to work, and not on the premises of the employer, does not give rise to a compensable injury unless the place of injury was brought into the scope of employment by an express or implied requirement in the contract of employment. Applying this rule to the facts in this case, the Court relied on surveillance footage of the accident, a traffic report, and testimony from two witnesses to the accident that clearly established the claimant was in the middle of the road when she was struck, and not on the employer's property, nor was she performing any express or implied duties for the employer when the accident occurred. Therefore, the claimant was not entitled to compensation from her employer for the injury sustained. 

Preexisting Degenerative Conditions 

In Powley v. W. Virginia University, No. 16-0753, (W. Va. June 8, 2017), the Court affirmed prior decisions denying a psychiatric consultation and prior decisions denying a request to add depressive disorder, spinal stenosis, and lumbosacral strain as compensable conditions in the claim. The Court noted the claimant's long history of lumbar spine problems prior to the compensable sprain/strain injury and the fact that he had a lumbar MRI the day before the injury due to complaints of back pain. The pre- and post-injury MRI findings did not change, so the Court adopted the medical opinions of two doctors who opined the claimant's continued complaints were related to the preexisting lumbar spine condition, and that there was no evidence supporting the assertion that a psychiatric component should be added because the claimant's depression was in no way related to the injury at issue in this claim.  

In Davis v. Pinnacle Mining Co., LLC, No. 16-0736, (W. Va. June 8, 2017), the Court affirmed a prior decision denying plaintiff's request for authorization of three transforaminal epidural steroid injection claims because the requested injections were aimed at treating pre-existing degenerative conditions rather than the injury which resulted from the accident at issue. The Court adopted the findings of an independent medical evaluation and held that the requested injections do not constitute medically necessary and reasonably required treatment in relation to the compensable lumbar sprain/strain. Furthermore, the Court noted that the medical evidence of record demonstrates that the majority of the claimant's lumbar spine pathology is degenerative in nature and predates the injury at issue, and the Court agreed with the independent medical evaluation in determining the claimant had reached maximum medical improvement with respect to the injury, and any further treatment, including pain management, would be aimed at treating underlying pre-existing degenerative disease. 

In Conley v. Parkways Economic Development & Tourism Authority, No. 16-0896, (W. Va. August 2, 2017), the Court decided cervical radiculopathy should not be added as a compensable condition of the claim. The Court agreed with the findings of the Office of Judges as affirmed by the Board of Review that the only cervical MRI of record has been interpreted to show the claimant's cervical issues were degenerative in nature as opposed to being caused by an acute injury.  Further, the claimant had extensive treatment related to his cervical spine prior to the compensable injury.  

Article by Dill Battle and Karin Weingart

If you have questions or need more information, please call or e-mail Dill Battle at 304.340.3823 orhdbattle@spilmanlaw.com

H. Dill Battle III, Esq.

Spilman Thomas & Battle, PLLC
300 Kanawha Boulevard, East
Charleston, WV 25301
304.340.3823 - office
304.340.3801 - fax
hdbattle@spilmanlaw.com