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On April 28, 2022 the West Virginia Supreme Court of Appeals released its opinion in James A. Moore, Jr. v. ICG Tygart Valley, LLC creating a new rebuttable presumption for claimants in workers’ compensation claims involving the compensability of preexisting disease or injury.
The Court issued a new Syllabus Point in this reported decision: “A claimant’s disability will be presumed to have resulted from the compensable injury if: (1) before the injury, the claimant’s preexisting disease or condition was asymptomatic, and (2) following the injury, the symptoms of the disabling disease or condition appeared and continuously manifested themselves afterwards. There still must be sufficient medical evidence to show a causal relationship between the compensable injury and the disability, or the nature of the accident, combined with the other facts of the case, raises a natural inference of causation. This presumption is not conclusive; it may be rebutted by the employer.”
In Moore, the claimant was a shuttle car operator in the employer’s coal mine. In November 2016, he was operating the shuttle car when the brakes locked up and he was thrown upward, hitting his head on the canopy of the car. The claim was held compensable for right shoulder sprain, upper back strain, and neck pain. He was initially treated conservatively for his neck pain and started physical therapy.
The next month, December 2016, the claimant had an MRI of the neck which showed degenerative disc disease (spondylosis) and disc abnormalities in his cervical spine, but he had no history of neck injuries or cervical radiculopathy.
In January 2017, the claimant’s treating physician diagnosed him with cervical sprain and cervical radicular pain. The physician opined the injury exacerbated the preexisting cervical degenerative disc disease causing new symptoms, but she believed the condition was not compensable because there was no change in pathology.
In February and March 2017, the claimant continued to complain of constant neck pain with radiation to the right arm and right arm numbness.
In April 2017, the claimant saw a pain management physician who diagnosed C6 cervical radiculopathy. The claimant received treatment for that condition through 2017 and into 2018.
In October 2017, the claimant’s treating physician said he was at maximum medical improvement (“MMI”) for neck pain so the claim was closed for temporary total disability (“TTD”) benefits and a 0% permanent partial disability (“PPD”) award was entered.
In March 2018, the claimant’s pain management physician wrote a letter stating the cervical radiculopathy was directly related to the compensable injury. He said it was probable that the cervical radiculopathy would have occurred even in the absence of degenerative disc disease.
In May 2018, the claimant was evaluated by an orthopedic surgeon who assessed C6 cervical radiculopathy, and he performed an anterior cervical discectomy and fusion at C5-6. The surgeon completed a diagnosis update form asking that C5-6 spondylosis with C6 radiculopathy (diagnosis code M47.22) be added as a compensable condition of the claim.
The request was denied.
Dr. Guberman performed an independent medical examination (“IME”) in November 2018 and diagnosed chronic post-traumatic strain of the c spine with C6 cervical radiculopathy (diagnosis code M54.12). He stated that the claimant’s cervical radicular symptoms and surgery were directly related to the compensable injury.
The West Virginia Workers’ Compensation Office of Judges of Judges (“OOJ”) affirmed the claim administrator’s denial of the request to add C5-6 spondylosis with C6 radiculopathy as a compensable condition. The West Virginia Workers’ Compensation Board of Review affirmed.
The West Virginia Supreme Court of Appeals noted that the claimant had asked the OOJ to add cervical radiculopathy as a compensable diagnosis. The Court noted that the OOJ had the statutory authority to rule on the request and modify the order of the claims administrator pursuant to W. Va. Code § 23-5-9(d), but the OOJ abdicated its responsibility and defaulted to the diagnostic code listed on the form ignoring the reference to the physician’s notes that supported the claimant’s request.
The Court found that the claimant’s work injury aggravated his degenerative disc disease, which was previously asymptomatic, causing cervical radiculopathy. The Court held that a claimant’s disability will be presumed to have resulted from the compensable injury if: (1) before the injury, the claimant’s preexisting disease or condition was asymptomatic, and (2) following the injury, the symptoms of the disabling disease or condition appeared and continuously manifested themselves afterwards. There still must be sufficient medical evidence to show a causal relationship between the compensable injury and the disability, or the nature of the accident, combined with the other facts of the case, raises a natural inference of causation. This presumption is not conclusive; it may be rebutted by the employer.
In the Moore case, the Court found the evidence showed that the claimant’s degenerative disc disease was asymptomatic, and that the compensable injury caused him to develop cervical radiculopathy, a new distinct injury. The Court also noted that three (3) physicians opined the cervical radiculopathy was causally connected to the compensable injury. Also, the claimant’s own treating physician stated that the injury triggered the condition leading to cervical radicular pain.
As a result, the Court reversed and remanded the case to add C6 cervical radiculopathy (diagnosis code M54.12), reopen TTD, and determine whether Claimant was entitled to a PPD award.
Although the Moore case creates new law, it does not significantly change the way a claim should be handled.
West Virginia claimants will have to meet certain threshold showings before the new rebuttable presumption is invoked. Now, a claimant is going to have to show that before the injury, the claimant’s preexisting disease or condition was asymptomatic and that, following the compensable injury, the symptoms or disability first manifested and continuously manifested. The Court distinguished the situation of when the claimant had been chronically symptomatic from the situation of new onset of radiculopathy that had not manifested previously. The Court also distinguished between the condition/diagnosis vs. the disability. The condition/diagnosis of spondylosis was not compensable, it was just the disability/radiculopathy that was compensable.
This case raises several questions and issues that must be considered in the future. First, the definition of “continuously” will likely be litigated as the Court did not define it. What is “continuously?” Is it 24 hours a day, 7 days a week? Is it every week? Does it mean the new symptoms must be noted at every physician appointment, or will a medical record notation once every few months suffice?
Second, how soon must the new symptoms appear after the injury in order to be compensable? Does the onset have to be simultaneous with the injury? What if the new disability does not arise until a week later? A month later? The Moore case did not specify whether the onset of the claimant’s radiculopathy was simultaneous with the initial injury. If it was simultaneous, there is a risk for future cases that a delayed onset could expand the Court’s holding. Part of the path forward for defense strategies is to ensure the invocation of the new rebuttable presumption does not neglect the required medical showing of a causal relationship between the compensable injury and the disability.
In the post-Moore world of workers’ compensation, it will be as important as ever to look for any prior symptoms for degenerative conditions when considering the compensability of radiculopathy after a strain. Claimants may be able to establish that their preexisting degenerative conditions were asymptomatic by testifying they never had previously complained about those symptoms. This is why it is imperative to collect claimants’ medical records (both current and past) after receiving a WC-1. Not only do medical records often show claimants had pre-existing degenerative changes, but they also often show treatment for similar symptoms that claimants’ claim only manifested after the compensable injury
If a claimant requests a new condition be added as a compensable condition and the claimant is able to meet (1) and (2) of the rebuttable presumption but there is concern about medical causation, withhold a decision on compensability and send the claimant for a medical evaluation or obtain a medical record review. It is important to remember the Moore decision does NOT prevent the employer from obtaining an expert opinion that the incident described could not have caused the claimant’s further disability. Obtain a physician opinion to show there is no medical evidence of a causal relationship between the compensable injury and the disability.
If a claimant requests to add “spondylosis with radiculopathy” and you know that spondylosis is a degenerative condition but it was asymptomatic and the radiculopathy only began after the work injury, and medical causation is present, then it will be helpful to tailor the compensability decision to state that spondylosis is a degenerative condition that preexisted the compensable injury and the only accepted compensable condition is radiculopathy. When future claims on point with the Moore decision enter litigation, practitioners must argue that the degenerative condition cannot be added to the claim, just the new condition.
Spilman Thomas & Battle, PLLC
300 Kanawha Blvd, E.
Charleston, WV 25301
Spilman Thomas & Battle, PLLC is the West Virginia member of the National Workers' Compensation Defense Network. The NWCDN is a nationwide network of defense firms specializing in protecting employers and carriers in workers' compensation claims and regulatory matters. For more information, visit www.nwcdn.com.