CHARLESTON — The West Virginia Supreme Court ruled that the West Virginia Workers' Compensation Board of Review erred in its issuance of only 13% permanent partial disability.
In the case, an employee, David Duff II, injured his back while working for the Kanawha County Commission, according to the April 22 West Virginia Supreme Court opinion.
Justice John Hutchison delivered the majority opinion. Chief Justice Tim Armstead concurred in part and dissented in part and authored a separate opinion. Justice Beth Walker concurred and authored a separate opinion. Justice Haley Bunn also concurred in part and dissented in part and authored a separate opinion.
After undergoing surgery and receiving a 13% Permanent Partial Disability (PPD) award, Duff protested, arguing that he was entitled to a full 25% PPD award.
The dispute centered around whether the disability should be apportioned between a preexisting condition and the work-related injury.
The Workers' Compensation Board of Review (BOR) and the Intermediate Court of Appeals of West Virginia affirmed the 13% award, but the Supreme Court reversed their decision.
The court held that the BOR erred in affirming the apportionment of Duff's disability.
For apportionment to occur, there must be both proof of a preexisting condition and proof of a "definitely ascertainable impairment resulting from" that condition, Hutchison wrote in the majority opinion.
While evidence of a preexisting condition existed, there was no substantial evidence proving the degree of impairment attributable to it.
The court found that the medical report supporting apportionment lacked reasoning and rationale, making it arbitrary.
The court reversed the decision and remanded the case to the BOR, instructing them to grant Duff the full 25% PPD award.
In his separate opinion, Armstead noted that he agreed with the BOR’s reasoning.
Armstead, concurring in part and dissenting in part, disagreed with the majority's interpretation of the burden of proof placed on the employer. The majority's ruling, according to Armstead, incorrectly shifted the burden to the employer to prove the existence and degree of a preexisting condition. Armstead argued that the statute does not support such an interpretation and that it contradicts established legal principles.
Armstead also critiqued the majority's reliance on a case from another jurisdiction, arguing that the workers' compensation statutes in West Virginia differ substantially.
Armstead contended that the majority's interpretation could lead to claimants being relieved of their burden to prove their claim adequately.
Furthermore, Armstead asserted that the medical evidence in the record supports Dr. Mukkamala's apportionment rating, despite the majority's decision to disregard it.
Armstead concluded that the majority's decision was perplexing and disagreed with their conclusion that the ICA's decision should be reversed.
Walker, in her concurring opinion, emphasized two points. Firstly, she stressed the significance of the term "impairment" in workers' compensation law, highlighting that a claimant must demonstrate whole body medical impairment under the American Medical Association (AMA) Guides to qualify for benefits.
She clarified that for apportionment to be applicable, the preexisting impairment must have been independently causing disability before and after the accident.
Walker also addressed the burden of proof in apportionment cases, asserting that it lies with the employer, as they seek to reduce the claimant's benefits.
She disagreed with the dissent's interpretation of the evidence, stating that while there were records of Duff's preexisting condition, there was insufficient evidence to establish the degree of impairment related to it.
Bunn, concurring in part and dissenting in part, agreed with the majority opinion's new legal principles but disagreed with awarding Duff a 25% Permanent Partial Disability.
Bunn believed the majority exceeded its role by increasing Duff's award based on a new principle of law without affording deference to the lower tribunals.
The majority placed a burden of proof on the employer regarding preexisting conditions, which was not previously explicit. Bunn argued that the employer couldn't meet this burden without prior notice and without the benefit of a fully developed evidentiary record.
Bunn suggested remanding the case to allow the employer to meet the new burden of proof and to develop the evidence fully, in line with established precedents.
Attorneys for the parties declined to comment on the decision.
West Virginia Supreme Court of Appeals case number: 23-43