State News : West Virginia

TO: NWCDN STATE NEWS

FROM: Dill Battle, Spilman Thomas & Battle, PLLC

DATE: 09/26/2022

RE: West Virginia Workers' Compensation News – 4^th Quarter 2022

Intermediate Court of Appeals

The Intermediate Court of Appeals (ICA) started operations July 1, 2022, and has not issued any opinions. According to a report from the Workers’ Compensation Board of Review (BOR), since July 1, forty-two cases have been appealed to the ICA from the BOR.

 Supreme Court of Appeals

 The second term of the 2022 court year for the West Virginia Supreme Court of Appeals began September 7. The term ends in November. On September 19, 2022, the Court issued 18 memorandum decisions in workers’ compensation cases. http://www.courtswv.gov/supreme-court/opinions.html

On September 13, the Court held oral argument on a consolidated case in Charles Delbert v. Marshall County Coal Resources, Inc., No. 20-0537 and 21-0944. The case deals with W. Va. Code 23-4-16(e), which states that a claimant may only have one active request for a permanent disability award pending at any one time. Mr. Delbert filed an application for a PTD award. While the PTD issue was pending, he sought reopening of his Occupational Pneumoconiosis claim for additional PPD benefits and medical treatment. The claim administrator denied Mr. Delbert’s reopening request pursuant to W. Va. Code 23-4-16. Mr. Delbert argues that the claim administrator erred in denying medical treatment, when legislative policies mandate prompt medical treatment for OP. Because litigation is lengthy when seeking a PTD award, claimant asserts that the ruling is an absurd result. Mr. Delbert assets that W. Va. Code § 23-4-8d expressly allows for “a request for medical services, durable medical goods or other medical supplies in an occupational pneumoconiosis claim may be made at any time.” The second case is the employer’s appeal of Mr. Delbert’s PTD award, which was granted following litigation.

Reported Supreme Court Decisions

Timeliness of PTD Application

In Murray American Energy, Inc., v. Harshey, No. 20-0716, 2022 WL 4299577, (September 19, 2022) (memorandum decision), the issue before the Court was the timeliness of filing an application for permanent total disability benefits. Mr. Harshey was injured on January 20, 2012, when he was struck by a ram car. On March 7, 2014, he was granted a 14% permanent partial disability award for his psychiatric injuries. On November 10, 2015, the claims administrator granted a 39% permanent partial disability award for his physical injuries. The Office of Judges reversed the claims administrator’s November 10, 2015, decision and granted a 49% permanent partial disability award on November 15, 2017. On June 29, 2018, the Board of Review affirmed the Office of Judges’ Order. The decision was affirmed by the West Virginia Supreme Court on May 30, 2019. Murray American Energy, Inc., v. Harshey, No. 18-0676, 2019 WL 2406702 (W. Va. May 30, 2019) (memorandum decision). Less than a month after the Supreme Court’s decision, Mr. Harshey filed his Application for Permanent Total Disability Benefits on June 18, 2019, stating that he had been awarded a 49% and a 14% permanent partial disability award for his January 20, 2012, injury. The claims administrator denied the application for a permanent total disability award because it was untimely filed on July 5, 2019.

In its March 2, 2020, Order, the Office of Judges reversed the claims administrator’s denial of the claim and remanded the case with instructions to find Mr. Harshey’s application to be timely filed. The Office of Judges noted that West Virginia Code § 23-4-16(a)(1) provides that “in any claim that has been closed without the entry of an order regarding the degree of impairment, or in any claim closed on a no lost time basis, reopening requests must be filed within 5 years of the date of the closure. Only two reopening requests may be filed within that 5 year period.” Further, West Virginia Code § 23-4-16(a)(2) states “in any claim in which an award of permanent impairment has been made, reopening requests must be filed within 5 years of the date of the initial award. Only two reopening requests may be filed within that 5 year period.” Mr. Harshey was granted an initial permanent partial disability award on March 7, 2014. He filed his application for a permanent total disability award on June 18, 2019, clearly outside of the five year time period. Mr. Harshey argued his application should be considered timely based on equity and based on West Virginia Code § 23-4-16(e).

The Office of Judges found dispositive Mr. Harshey’s argument regarding West Virginia Code § 23-4-16(d). West Virginia Code § 23-4-16(e) states that “[a] claimant may have only one active request for a permanent disability award pending in a claim at any one time. Any new request that is made while another is pending shall be consolidated into the former request.” In the case at issue, Mr. Harshey was granted a 39% permanent partial disability award on November 10, 2015, at which point he was eligible to apply for a permanent total disability award. See W. Va. Code § 23-4-6(n)(1) (providing that in order to apply for a permanent total disability award, a claimant “must have been awarded the sum of fifty percent in prior permanent partial disability awards”). However, the decision was appealed to the Office of Judges, which reversed and granted a 49% permanent partial disability award. The employer then appealed the decision to the Board of Review and then to the Supreme Court. The Office of Judges rejected the employer’s argument that Mr. Harshey’s application for permanent partial total disability was untimely filed because he did not submit his application after the November 10, 2015, permanent partial disability award was granted. The Office of Judges reasoned that the November 10, 2015, 39% permanent partial disability award was a not final award because the decision was appealed and “there is no requirement which would cause the claimant to have to choose between whether he should forego his contention that he is entitled to a greater permanent partial disability award or whether an application for a permanent total disability award would be timely if the matter remains in litigation.” As the Office of Judges explained, “[s]ince the issue of the permanent partial disability award was not final, if the claimant had filed an application for a PTD award . . . then the application for PTD would not have been acted upon but would have been consolidated into the 39% PPD award issue.” Therefore, the Office of the Judges found that Mr. Harshey’s permanent partial disability award became final on May 30, 2019, when the West Virginia Supreme Court issued its ruling. Mr. Harshey filed his application for permanent total disability on June 18, 2019, and that application was received on July 5, 2019. Therefore, his application was timely and should be considered. The Board of Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed its Order on August 21, 2020.

The Supreme Court agreed with the reasoning and conclusions of the Office of Judges as affirmed by the Board of Review. West Virginia Code § 23-4-16(e) prevents a claimant from filing more than one claim for permanent disability at a time, whether that claim is for permanent total disability or permanent partial disability. Mr. Harshey in this case appealed his permanent partial disability award and was granted a greater award by the Office of Judges. The employer then appealed the decision to the Board of Review and the Supreme Court. In this time, the five year window for filing a claim for permanent total disability closed. However, as the Office of Judges found, the permanent partial disability award did not become final until the Supreme Court issued its ruling on May 30, 2019. See Murray American Energy, Inc., v. Harshey, No. 18-0676, 2019 WL 2406702 (W. Va. May 30, 2019) (memorandum decision). His application was timely filed because Mr. Harshey filed his application for permanent total disability less than a month later.

Compensability of CTS

In Bartram v. Coronado Group, LLC, No. 21-0479, 2022 WL 4299598 (W. Va. September 19, 2022) (memorandum decision), the issue before the Court was the compensability of carpal tunnel syndrome. Mr. Bartram was an equipment operator and alleged he developed carpal tunnel syndrome as a result of his job duties. A September 8, 2018, EMG, interpreted by Victor Jaramillo, M.D., showed entrapment neuropathy, mild on the left and moderate on the right, consistent with carpal tunnel syndrome. Cervical radiculopathy could not be ruled out. On February 21, 2019, Dr. Jaramillo found sensory deficit for pinprick and temperature in both hands and forearms upon examination. Tinel’s sign was positive in both wrists. He diagnosed polyneuropathy and carpal tunnel syndrome. C. Dale Cook, PA-C, with Family Healthcare Associates, Inc., saw Mr. Bartram on March 11, 2019, for bilateral hand pain and carpal tunnel syndrome. An EMG was positive for carpal tunnel syndrome. It was noted that Mr. Bartram was previously diagnosed with chronic lumbar pain and high cholesterol. The Employees’ and Physicians’ Report of Injury was completed on March 11, 2019, and indicates Mr. Bartram developed bilateral carpal tunnel syndrome as a result of his employment.

Mr. Bartram was a strip-mining equipment operator, and operated a loader, dozer, rock truck, and water truck. He also used hand tools. Samuel Muscari, D.O., opined Mr. Bartram developed carpal tunnel syndrome as a result of repetitive hand movements while operating heavy equipment. The employer presented evidence Mr. Bartram was a water truck operator, truck operator, loader operator, rock truck operator, and truck scale cleaner. He also picked up trash occasionally. Mr. Bartram drove a large rock truck with power steering and automatic shifting.

The employer also presented a Physician Review report by Rebecca Thaxton, M.D., in which she found that Mr. Bartram does not suffer from occupationally induced carpal tunnel syndrome. She noted that Mr. Bartram’s job duties involved driving various trucks and operating equipment. Mr. Bartram reported ten to twelve hours of continuous firm grip, bending, and rotating both wrists. She found that Mr. Bartram drove a large rock truck with power steering and shifting, and that there was no need to firmly grip the steering wheel because such trucks are manufactured to be easy to drive. The employer asserted that the wheel was as easy to turn as that in a normal vehicle. Further, Mr. Bartram’s job required a firm grip a few times a day. Mr. Bartram was required to occasionally tighten or loosen nozzles with wrenches but not frequently. Dr. Thaxton opined that Mr. Bartram’s job description was not consistent with an increased risk of development of carpal tunnel syndrome. The claims administrator rejected the claim on April 3, 2019.

Mr. Bartram testified in a September 17, 2019, deposition that he drove a water truck but had to run dozers and loaders sometimes. The loaders were operated with joysticks, and he had to operate one for six months when his water truck broke. Mr. Bartram stated that he also used hand tools to service equipment. Mr. Bartram testified that he currently has numbness and tingling in his hands that started three to five years prior. Mr. Bartram stated that he has high blood pressure and smoked cigarettes in the past. Mr. Bartram testified that his symptoms had not improved in the time that he had been off of work. A September 19, 2019, treatment note by Connie Cook, PA­C, indicates Mr. Bartram was seen for hand pain and was diagnosed with carpal tunnel syndrome.

Prasadarao Mukkamala, M.D., performed an Independent Medical Evaluation on September 23, 2020, in which he noted that Mr. Bartram stopped working due to back pain. He underwent left carpal tunnel release eight months prior. The symptoms ceased for two months and then returned. Mr. Bartram stated that his symptoms did not get better after he stopped working. Dr. Mukkamala opined that Mr. Bartram’s carpal tunnel syndrome was not the result of his occupational duties. He stated that the fact that Mr. Bartram’s symptoms did not improve when he quit working indicates his carpal tunnel syndrome was not the result of his occupational duties. Dr. Mukkamala opined that Mr. Bartram’s job duties do not involve the high force, repetitive movements and awkward positioning known to cause carpal tunnel syndrome. He noted nonoccupational risk factors in the form of obesity and generalized polyneuropathy.

The Office of Judges affirmed the claims administrator’s rejection of the claim in its November 30, 2020, Order. It found that the most comprehensive evaluation of record was the one performed by Dr. Mukkamala. Dr. Mukkamala stated that Mr. Bartram’s work activities were not the kind of forceful repetitive movements known to cause carpal tunnel syndrome. Further, Mr. Bartram’s symptoms did not improve when he ceased working. Dr. Mukkamala also noted that Mr. Bartram had confounding conditions in the form of obesity and polyneuropathy, which increase his risk for carpal tunnel syndrome. The Board of Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed its Order on May 20, 2021.

The Court agreed with the reasoning and conclusions of the Office of Judges as affirmed by the Board of Review. For an injury to be compensable it must be a personal injury that was received in the course of employment, and it must have resulted from that employment. Barnett v. State Workmen’s Comp. Comm’r, 153 W. Va. 796, 172 S.E.2d 698 (1970). West Virginia Code of State Rules § 85-20-41.5 provides that workers who perform high force, repetitive manual movements are at high risk for the development of carpal tunnel syndrome. West Virginia Code of State Rules § 85-20-41.4 states that confounding conditions, such as obesity, can precipitate carpal tunnel syndrome symptoms. The evidence indicates that Mr. Bartram’s work duties do not involve the kind of high force, repetitive movements known to cause carpal tunnel syndrome. Further, Mr. Bartram suffers from conditions known to contribute to the development of carpal tunnel syndrome.

Justice William R. Wooton dissented and would set the case for Rule 19 oral argument.