Davis

CHARLESTON – In a workers' compensation case where confusing rules drove both sides to awkward positions, the Supreme Court of Appeals invalidated one of the rules.

On April 1, the Justices deleted language that led a doctor to reduce an award for carpal tunnel syndrome from 6 percent to 2 percent.

They restored 6 percent to millwright Timothy Davies, but only after declaring his argument absurd, unjust and unreasonable.

They also rebuked his employers at Alcan Rolled Products – Ravenswood, for asking them to rewrite the rule.

Davies underwent surgery in 2007 and returned to his job 75 days later.

Millwrights design, build, repair, and maintain machines in mills and factories.

In 2008, a claim handler for his self-insured employer referred him to physician Paul Bachwitt for a partial permanent disability evaluation.

Bachwitt examined Davies, opened an American Medical Association guide, and turned to table 16 on "upper extremity impairment due to entrapment neuropathy."

Table 16 yields whole person impairment ratings of zero, 6 percent in mild cases, 12 percent in moderate cases, and 24 percent in severe cases.

Table 16 carries the force of a rule, for the state requires physicians to follow the guide.

Bachwitt determined that Davies suffered mild impairment, at 6 percent.

Next, he adjusted the award under paragraph 64.5 of a rule on ranges of awards for common injuries.

The paragraph sets a range of zero to 6 percent for carpal tunnel.

Bachwitt concluded that the paragraph allowed 1 or 2 percent for mild cases, 3 or 4 percent for moderate cases, and 5 or 6 percent for severe cases.

He recommended 2 percent, and Alcan granted it.

Davies appealed, and the Workers' Compensation Office of Judges raised it to six.

The judges found nothing in paragraph 64.5 supporting Bachwitt's interpretation. Alcan appealed, and the Workers Compensation Board of Review cut it back to 2.

Davies appealed to the Supreme Court, claiming paragraph 64.5 meant that any impairment greater than 6 percent must be reduced to 6 percent.

This puzzled the Justices, who realized that everyone with carpal tunnel impairment would receive 6 percent regardless of severity.

"Such a result is absurd, unjust, and unreasonable," Justice Robin Davis wrote.

Davies won anyway.

Davis wrote that under Bachwitt's theory, 6 percent impairment would entitle a worker to an award of 1 or 2 percent, 12 percent would entitle him to 3 or 4 percent, and 24 percent impairment would entitle him to 5 or 6 percent.

She wrote that "no attempt has been made to explain how to determine which partial permanent disability award under a given classification is appropriate for claimants falling within that classification."

She wrote that it wasn't clear how to determine which claimants would receive 1 percent and which would receive 2.

"In the absence of supporting language, this Court is not at liberty to rewrite the rule to achieve the result advocated by Alcon," she wrote.

Finding conflict between table 16 and paragraph 64.5, she invalidated the paragraph.

Finding the only evidence of the level of impairment was the whole person impairment found by Bachwitt, she reinstated the 6 percent order of the Office of Judges.

Edwin Pancake of Charleston represented Davies.

Toney Stroud, of Steptoe and Johnson in Charleston, represented Alcan.

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