eNotes: Workers’ Compensation – April 2024 – West Virginia

SIGNIFICANT CASE SUMMARIES

West Virginia Case Summary

Tennant v. ACNR Resources, Inc.
No. 23-ICA-407
Intermediate Court of Appeals of West Virginia

Decided: March 25, 2024

If an employer can show that the claimant sustained a prior injury and/or was symptomatic for the alleged work-related condition prior to an alleged work injury and the fact finder (Board of Review) buys that argument, the appellate courts will be reluctant to overturn those decisions.

Background:

The Claimant alleged a right shoulder injury sustained while dragging and throwing heavy hoses on November 8, 2022. The Claimant was seen by Dr. Sykes on November 21, 2022, who had treated the Claimant for his right shoulder prior to the alleged injury (rotator cuff tear repair for an injury in 2019). That note did not reflect a discrete injury but that the Claimant began experiencing pain after constant lifting. The Claimant later treated at Med Express, with that history reflecting a right shoulder injury while throwing a hose at work, and the Claimant was diagnosed with a right shoulder strain. The Employer issued an order denying compensability, and the Claimant filed a protest with the Board of Review. The Board of Review upheld the denial.

Holding:

The Board of Review referenced the cases of Gill v. City of Charleston (2016) as well as Moore v. ICG Tygart Valley, LLC (2022), both decided by the West Virginia Supreme Court of Appeals. Gill held that a non-compensable, preexisting injury may not be added as a compensable component of a claim merely because it may have been aggravated by a new compensable injury. Moore held that a claimant’s disability, despite a pre-existing condition, will be presumed to have resulted from a compensable injury if (a) before the injury the claimant’s condition was asymptomatic and (2) following the injury, the symptoms continued to manifest. The Board analyzed the case under Gill and held that the Claimant failed to establish that he sustained a discrete new work injury. It further ruled that, under Moore, the Employer rebutted the presumption of compensability with the 2019 work injury and the Claimant’s continued symptoms of pain since that injury. The Intermediate Court endorsed these determinations, finding no reversible error.

Takeaway:

One of the questions raised by the recent Moore holding was the employer’s burden of proof to rebut a presumption of compensability relative to a claimant’s pre-existing condition. Tennant appears to suggest that the employer’s burden is relatively low. If an employer can show that the claimant sustained a prior injury and/or was symptomatic for the alleged work-related condition prior to an alleged work injury and the fact finder (Board of Review) buys that argument, the appellate courts will be reluctant to overturn those decisions.

Questions regarding this case can be directed to Evan Jenkins at (412) 926-1419 or ejenkins@tthlaw.com.