State News : West Virginia

NWCDN State News – West Virginia

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

May 31, 2026; Updated June 3, 2026

 West Virginia Legislature – 2026 Regular Session

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 The bill revised outdated and/or unnecessary provisions within Chapter 23 of the West Virginia Code, which pertains to workers’ compensation insurance and benefits. The legislation also repealed certain sections within Chapter 23 that are obsolete.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

Supreme Court of Appeals of West Virginia

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

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

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

First Term of Court 2026

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

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

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

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

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

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

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

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

Intermediate Court of Appeals of West Virginia

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

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

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

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

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

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

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

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

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

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

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

The SCAWV held in Gill:

A noncompensable preexisting injury may not be added as a compensable component of a claim for workers’ compensation medical benefits merely because it may have been aggravated by a compensable injury. To the extent that the aggravation of a noncompensable preexisting injury results in a [discrete] new injury, that new injury may be found compensable.

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

The SCAWV clarified its position in Moore, holding:

A claimant’s disability will be presumed to have resulted from the compensable injury if: (1) before the injury, the claimant’s preexisting disease or condition was asymptomatic, and (2) following the injury, the symptoms of the disabling disease or condition appeared and continuously manifested themselves afterwards. There still must be sufficient medical evidence to show a causal relationship between the compensable injury and the disability, or the nature of the accident, combined with the other facts of the case, raises a natural inference of causation. This presumption is not conclusive; it may be rebutted by the employer.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

For any questions, please contact:

Charity K. Lawrence

CLawrence@spilmanlaw.com

304-720-4056

Dill Battle

Spilman Thomas & Battle, PLLC

hdbattle@spilmanlaw.com

304-340-3823