Over the last approximately 12 months, the West Virginia Supreme Court of Appeals has issued numerous decisions impacting workers’ compensation claims, addressing (1) apportionment calculations of preexisting awards and conditions in workers’ compensation claims; (2) compensability for injuries occurring at work but not related to work; (3) permanent partial disability post-lung transplant; and (4) the scope of collateral estoppel.

Decisions Impacting Apportionment Calculations of Preexisting Awards and Conditions

Logan-Mingo Area Mental Health, Inc. v. Lester, 902 S.E.2d 768, 2024 WL 2890070 (W. Va. 06/10/2024)

In Lester, the Court clarified the proper usage of the Combined Values Chart of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition to calculate permanent partial disability (PPD) when the claimant has a definitely ascertainable preexisting impairment. Although the holding was narrow, the case has significant impact on the methodology of PPD calculations.

Lester had a previous workers’ compensation injury in 1999 resulting in a 20 percent PPD award after application of the Combined Values Chart, combining a 14 percent whole-person impairment for his lumbar spine and a 7 percent impairment for his thoracic spine. In 2017, Lester again filed a claim from a fall resulting in more impairment to his lumbar spine and thoracic spine, together with additional impairments to his cervical spine, left shoulder, right knee, and left knee.

After achieving maximum medical improvement for these new injuries, Dr. Bruce Guberman calculated the following whole-person impairment: 8 percent for the cervical spine; 8 percent for the lumbar spine; 7 percent for the thoracic spine; 4 percent for the left shoulder; 4 percent for the left knee; and 4 percent for the right knee. He combined these calculations for a total whole-person impairment of 30 percent when properly applying the Combined Values Chart on page 322 of the AMA Guides Fourth Edition. Dr. Guberman, however, offset the previous lumbar and thoracic spine injuries before combining the impairments which resulted in a 19 percent whole-person impairment from the new injuries. When added to the previous award, this would mean that Lester would receive compensation for 39 percent PPD even though he only had a whole-person impairment of 30 percent.

Dr. Rebecca Thaxton performed her own assessment of Lester’s injuries and used a different method of calculating whole-person impairment. She agreed with the total impairment of 30 percent and then deducted the 20 percent previous PPD award, resulting in 10 percent attributable to the new injuries. Lester was awarded 10 percent PPD in the new claim, which award was affirmed by the Workers’ Compensation Office of Judges (OOJ). That award was later reversed by the Board of Review (BOR), which granted the 19 percent PPD award.

The Supreme Court of Appeals reversed the BOR and upheld the 10 percent PPD award granted by the OOJ. In ruling that Dr. Guberman’s methodology was improper, the Court found it dispositive that Lester would receive an award that was 9 percent higher than his total whole-person impairment. They also held that Dr. Thaxton’s methodology was the proper usage of the Combined Values Chart when offsetting prior awards.

The Court described the correct calculation method in Syllabus Point Two of the decision:

When a claimant has preexisting, definitely ascertained impairments to multiple body parts and then sustains new compensable injuries that affect the previously impaired body parts, the proper method for apportioning the preexisting impairments is to first determine the claimant's total, unapportioned whole-person impairment using the Combined Values Chart of the American Medical Association's Guides to the Evaluation of Permanent Impairment (4th ed. 1993). Then, the total amount of the claimant's preexisting impairment that has been definitely ascertained must be deducted from the total, unapportioned whole-person impairment to calculate the amount of the claimant's Permanent Partial Disability award.

Syl Pt. 2, Logan-Mingo Area Mental Health, Inc. v. Lester, 902 S.E.2d 768, 769(W. Va. 06/10/2024).

This opinion has significant impact on workers’ compensation claims when the claimant has been granted prior awards, and emphasizes a stronger weight on those previous awards.

Duff v. Kanawha County Comm’n, No. 23-43, 2024 WL 1715166 (W. Va. 04/22/2024)

The West Virginia Supreme Court of Appeals handed down another opinion with significant impact on claims involving the apportionment of preexisting impairment from prior injuries in April 2024. In Duff, the Court adopted a stricter definition of “definitely ascertainable” as it appears in West Virginia Code § 23-4-9b, resulting in a shifting of the burden of proof to the employer when asserting the existence of prior impairments.

After Duff was injured on the job, he was granted a 13 percent permanent partial disability award. This was based upon a medical report by Dr. Prasadarao Mukkamala, calculating 25 percent whole-person impairment in the lumbar spine with 12 percent apportioned to preexisting conditions arising from a long history of back problems in the lumbar and thoracic spine. This award was affirmed by the BOR and the West Virginia Intermediate Court of Appeals (ICA).

The Supreme Court of Appeals reviewed the findings of three doctors who examined Duff with an eye on the depth of analysis regarding any preexisting conditions and any resulting apportionment. In order to examine the reports, the Court felt it necessary to define the term “definitely ascertainable” in the applicable governing statute W. Va. Code § 23-4-9b, which reads as follows:

Where an employee has a definitely ascertainable impairment resulting from an occupational or a nonoccupational injury, disease or any other cause, whether or not disabling, and the employee thereafter receives an injury in the course of and resulting from his or her employment, unless the subsequent injury results in total permanent disability within the meaning of section one, article three of this chapter, the prior injury, and the effect of the prior injury, and an aggravation, shall not be taken into consideration in fixing the amount of compensation allowed by reason of the subsequent injury. Compensation shall be awarded only in the amount that would have been allowable had the employee not had the preexisting impairment. Nothing in this section requires that the degree of the preexisting impairment be definitely ascertained or rated prior to the injury received in the course of and resulting from the employee's employment or that benefits must have been granted or paid for the preexisting impairment. The degree of the preexisting impairment may be established at any time by competent medical or other evidence. Notwithstanding the foregoing provisions of this section, if the definitely ascertainable preexisting impairment resulted from an injury or disease previously held compensable and the impairment had not been rated, benefits for the impairment shall be payable to the claimant by or charged to the employer in whose employ the injury or disease occurred. The employee shall also receive the difference, if any, in the benefit rate applicable in the more recent claim and the prior claim.

W. Va. Code § 23-4-9b (emphasis added).

The Court read the term “definitely ascertainable” to require a medical expert to offer thorough justification for a conclusion that the claimant had a preexisting condition that warranted apportionment, with the AMA Guides offering the appropriate method of calculation. The Court also read this statute to shift the burden to the employer to prove apportionment is necessary in any given case, as seen in Syllabus Point Six:

Under West Virginia Code § 23-4-9b (2003), the employer has the burden of proving apportionment is warranted in a workers’ compensation case. This requires the employer to prove the claimant “has a definitely ascertainable impairment resulting from” a preexisting condition(s). This requires that employer prove that the preexisting condition(s) contributed to the claimant's overall impairment after the compensable injury and prove the degree of impairment attributable to the claimant's preexisting condition(s).

Syl. Pt. 6, Duff v. Kanawha County Commission 2024 WL 1715166 (W. Va. 04/22/2024).

With the burden shifted to the employer to prove that apportionment is necessary, the Court looked to evidence presented by the parties’ respective medical experts. Dr. Mukkamala’s report was seen to have offered little reasoning in his conclusion that Duff’s preexisting conditions justified a 12 percent apportionment. Dr. Bruce Guberman, who performed an examination on behalf of the claimant, also found that Duff had a whole-person impairment of 25 percent. However, he offered more justification in his report to come to his conclusion that apportionment was not necessary. Dr. David Soulsby also gave a report that apportioned 12 percent impairment to preexisting conditions, but the report was found to be inadmissible because it lacked a mandatory lower back examination form. Under this new definition of “definitely ascertainable,” the Court held that Dr. Mukkamala’s report did not present enough proof showing that Duff had a definitely ascertainable prior impairment or a proven degree of impairment that would justify apportionment.

In reversing the BOR and ICA, the Court accepted the reasoning of Dr. Guberman and remanded the case to the BOR to grant a PPD award of 25 percent. It was determined that since neither of the parties requested the Court to remand to the BOR to rehear the claim in accordance with this new standard, the Court declined to do so, determining the final resolution of the issue on its own accord.

In his separate opinion concurring, in part, and dissenting, in part, Chief Justice Armstead disagreed with the shifting of the burden of proof to the employer, likening it to a treatment as an affirmative defense. He found the Majority’s opinion at odds with prior West Virginia case law requiring the employee to prove his or her claim by “proper and satisfactory proof.” Casdorph v. W. Va. Office Ins. Comm'r, 225 W. Va. 94, 99, 690 S.E.2d 102, 107 (2009). Chief Justice Armstead would have affirmed the rulings of both the BOR and ICA, allowing the apportionment of the prior injury.

Justice Bunn concurred in part and dissented in part. She disagreed with the majority’s handling of remand. She wrote that the parties should not be held to findings of fact on appeal under a new standard without being given the chance to present evidence in accordance with that standard.

The case is a significant change in the way apportionment of preexisting impairment is proven. Greater certainty is now required on behalf of the employer to overcome a presumption that the claimant’s impairment is the result of the injuries that brought rise to the claim. This can be very difficult when claimants are not examined for the necessary impairment ratings under the AMA Guides when the prior injuries did not occur in the context of a workers’ compensation claim. The Supreme Court refused a petition for reconsideration, and employers will have to adapt to this new interpretation.

An Injury Occurring at Work but not Related to Work is Not Compensable

Hood v. Lincare Holdings, Inc., 21-0754, 894 S.E.2d 890 (W. Va. Nov 08, 2023).

In the Fall Term 2023, the West Virginia Supreme Court of Appeals discussed the “increased risk” test to analyze compensability of a fall down a set of stairs and found the employee’s act of descending a short staircase did not increase his risk of injury and affirmed the rejection of the claim. Hood v. Lincare Holdings, Inc., 21-0754, 894 S.E.2d 890 (W. Va. Nov 08, 2023).

In Hood v. Lincare Holdings, Inc., the Court ruled that the fall was not compensable because the employee was injured while employed but not as a result of his employment. Justice Walker succinctly described the facts of the case:

“While descending a short set of stairs from a customer's porch after making a delivery for his employer, Robert Hood felt a “pop” and pain in his right knee. He was later diagnosed with a right knee sprain. Mr. Hood did not slip, trip, or fall, and he was not carrying anything. The West Virginia Workers’ Compensation Board of Review affirmed previous rulings rejecting the claim, and Mr. Hood appeals. Even though Mr. Hood was injured while working, he failed to show that his work caused the injury. We affirm.”

Hood v. Lincare Holdings, Inc., 894 S.E.2d 890, 893 (W.Va., 2023).

The Court explored the jurisprudence in West Virginia and noted the cases and commentaries on this topic in Arthur Larson, Lex K. Larson, Thomas A. Robinson, Larson's Workers’ Compensation (Rev. Ed. 2023)). In Syllabus Pt 4, the Court held: “In the context of workers' compensation law, there are four types of injury-causing risks commonly faced by an employee at work: (1) risks directly associated with employment; (2) risks personal to the claimant; (3) mixed risks; and (4) neutral risks.” In Syllabus Pt 5, the Court held: “The factfinder may use the increased-risk test when deciding whether an employee sustained a compensable injury under West Virginia Code § 23-4-1(a) (2018), in cases where the injury occurred while the employee was engaged in a neutral risk activity. Under the increased-risk test, even if the risk faced by the employee is not qualitatively peculiar to the employment, the injury may be compensable if he faced an increased quantity of a risk.”

Applying these principles to the facts at hand, the Court looked to the “increased risk” test and found the employee’s act of descending a short staircase did not increase his risk of injury and affirmed the rejection of the claim. Hood v. Lincare Holdings, Inc., 894 S.E.2d 890, 895 (W.Va., 2023).

PPD in Occupational Pneumoconiosis Cases – Lung Transplant

Rockspring Development, Inc. v. Brown, No. 22-0135, 902 S.E.2d 785 (06/11/2024)

In Rockspring, the Court affirmed the BOR’s decision affirming Brown's additional 20 percent PPD award for occupational pneumoconiosis (OP) impairment. Brown contracted OP based upon his coal dust exposure as an underground coal miner. In August 2016, the claims administrator granted him a 30 percent PPD award based upon his OP. Brown’s pulmonary function study caused the interpreting physician to diagnose him with a severe obstructive ventilatory defect, a mild restrictive ventilatory defect, and a moderate gas transfer defect. The study demonstrated that his “flow-volume loop pattern [wa]s consistent with chronic obstructive pulmonary disease.” Because the results indicated that his OP had worsened, Brown subsequently requested that his PPD claim be reopened. The claims administrator referred him to the OP Board for evaluation.

Members of the OP Board examined Brown and relevant medical records. The OP Board noted the previous diagnosis of asthma and chronic obstructive pulmonary disease in 2015, and that he was treated for pneumonia in 2017. Brown reported to the OP Board he was on the lung transplant list for several years due to progressive massive fibrosis. The OP Board ultimately determined Brown’s condition had worsened to progressive massive pulmonary fibrosis. The OP Board further relied on the October 2017 Vanderbilt pulmonary function testing, which demonstrated significant impairment. Ultimately, the OP Board concluded sufficient evidence justified an additional 20 percent impairment rating the diagnosis of OP, for a total of 50 percent when combined with the previous 30 percent impairment.

On December 6, 2018, the claims administrator granted Mr. Brown an additional 20 percent PPD award. Rockspring protested this order to the Office of Judges. During the pendency of the protest proceedings, Brown received a bilateral lung transplant on May 3, 2020. Following the surgery, Brown submitted to a pulmonary function study at Vanderbilt on August 3, 2020. The interpreting physician found no obstruction present in Brown's lungs. Because the study occurred after Rockspring's evidentiary development deadline, Rockspring moved the Office of Judges to admit the medical records regarding Brown's lung transplant and subsequent testing into evidence. The Office of Judges granted the motion.

As Justice Bunn wrote in her decision, the lower tribunals were faced with “a rare set of factual circumstances”. Rockspring Development, Inc. v. Brown, 902 S.E.2d 785, 791. The Court found that the Workers' Compensation Board of Review did not clearly err in determining that Brown was entitled to a 50 percent PPD award for his OP impairment following bilateral lung transplant, although certain medical documentation indicated that Brown’s pulmonary function was normal following transplant, and the OP Board used pre-transplant pulmonary function testing to determine his impairment. Members of the OP Board provided testimony before the Office of Judges that supported its decision to use the pre-transplant pulmonary function testing to determine Brown's impairment, including that Brown clinically “still suffers” and that, while he had no discernable pulmonary function impairment due to the transplant surgery, he faces other medical issues due to the transplant and has a shortened life expectancy.

The Court concluded:

“There was undisputed evidence in the record below to demonstrate that Mr. Brown contracted OP and suffered a resulting measurable impairment for many years. In the absence of statutory guidance on whether and how a transplant surgery that occurs during the pendency of the claim impacts an impairment rating, we simply cannot conclude that the Board of Review erred, particularly in light of the deference they are afforded.”

Rockspring Development, Inc. v. Brown, 902 S.E.2d 785, 792 (W.Va., 2024).

Collateral Estoppel

Ruble v. Rust-Oleum Corporation, No. 22-0329, 902 S.E.2d 873 (06/12/2024)

The West Virginia Supreme Court of Appeals determined that the plaintiff’s workers’ compensation claim did not collaterally estop a related civil claim. Ruble v. Rust-Oleum Corp., No. 22-0329, 902 S.E.2d 873 (06/12/ 2024). Justice Hutchison summarized the issue presented to the Court: “Specifically, we consider whether collateral estoppel (sometimes called “issue preclusion”) applies such that a finding in a West Virginia workers’ compensation decision may be used to preclude litigation of that issue against a third party in a West Virginia circuit court." Id. at 1.

In Ruble, the plaintiff sued his past and current employers, along with two chemical suppliers, claiming injury suffered at work after breathing in toxic fumes. Id. at 2-3. Contemporaneously, the plaintiff filed a workers’ compensation claim against his most recent employers and chemical suppliers in circuit court. Id. at 3. The administrative claim was denied, for which the plaintiff appealed and was again denied before the West Virginia Workers’ Office of Judges (the OOJ). Id. at 3-4. It important to note that there was no hearing before the OOJ, and the only evidence presented included the proffered record from the administrative claim. Id. at 3. The OOJ found that the plaintiff did prove, by a preponderance of the evidence, that he developed an occupational disease “in the course of and as a result of employment.” Id. at 4.   

The plaintiff appealed to the West Virginia Workers’ Compensation Board of Review (the Board) and was also denied. Id. 3-4. As a result, the plaintiff voluntarily dismissed the claim against both employers. Id. at 5. The chemical suppliers also moved to have the claims against them dismissed under the doctrine of collateral estoppel, which the court granted. Id. at 5-6. The plaintiff appealed the decision of the circuit court. Id. at 6.

Collateral estoppel is a principle that completely bars a claim from being brought if certain elements are met. Id. at 7. The only element that the Court questioned is the requirement that “the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.” Id. at 7; Syl pt. 1, State v. Miller, 194 W. Va. 3, 6, 459 S.E.2d 114, 117 (1995). The Court analyzed the processes during the workers’ compensation proceedings and found that they were significantly different from the claims in circuit court. Id. Citing differences in the procedural and statutory rules in the collection, presentation, and development of discovery and evidence, the Court found that it hindered the plaintiff’s ability to prove the claim itself and the subsequent damages. Id. at 9-13. The smaller award amounts allowed in workers’ compensation claims limit workers’ compensation attorneys from spending large amounts to fully prepare claims against defendants were also noted. Id. at 13-14. For those reasons, the Court found that the plaintiff did not have a “full and fair opportunity to litigate[ ]” his claims before the workers’ compensation tribunals. See id.,at 14. The Court mentioned:

“Upholding the circuit court’s dismissal would deter employees from seeking workers’ compensation until any third-party claims have been developed and resolved. . . contrary to the Legislature’s command that employees injured on the job by a third-party are allowed to purse both a workers’ compensation claim and a claim against the third party.”

Id.

Justice Armstead dissented, believing that it “unjustly call[s] into question the applicability of collateral estoppel in relation to a myriad of other administrative proceedings and agencies.” Ruble, No. 22-0329, 14-16 (W. Va. Supreme Court, June 12, 2024) (Armstead, C.J., dissenting). Finding that under the facts, the plaintiff received a “second bite at the apple” to prove causation against a third party, which the doctrine of collateral estoppel and West Virginia case law has prohibited. Id. at 1. See Steel of West Virginia, Inc. v. West Virginia Office of the Insurance Commissioner, No. 11-1607 (W. Va. Supreme Court, November 16, 2012)(memorandum decision).