eNotes: Workers’ Compensation – March 2023 – West Virginia

SIGNIFICANT CASE SUMMARIES

West Virginia Case Summary

Duff v. Kanawha County Commission
Intermediate Court of Appeals of West Virginia
No. 22-ICA-10

Decided: December 9, 2022

Examining physicians must examine all relevant information available to them and clearly identify in their reports what they have examined and considered and how they have arrived at their conclusions regarding apportionment.

Background

The Claimant was a Deputy Sheriff employed by Respondent Kanawha County Commission. While helping to lift an approximately 150-pound bomb detector robot from the back of a truck, the Claimant injured his low back, left him, and pelvis. The claim administrator held the claim compensable for lumbar, left hip, pelvis, and sacrum strains, and authorized lumbar spinal fusion surgery. Pursuant to this order, the Claimant underwent posterior lumbar interbody fusion surgery. Following the surgery, an independent medical examiner reported that because of the nature of the Claimant’s surgery, he satisfied the diagnostic criteria for Category V of West Virginia Code of State rules and the minimum award he could receive is 25%. The independent medical examiner adjusted Claimant’s award to 25%, but then recommended apportioning 12% of the Claimant’s whole-person impairment to the Claimant’s preexisting degenerative changes and 13% to his compensable injury. Therefore, the claim administrator granted the Claimant a 13% permanent partial disability award, based primarily on the independent medical examiner’s report and records which predated the compensable injury that indicated the Claimant had a nearly 20-year history of back symptoms.

Holding

The Intermediate Court of Appeals affirmed the award of 13% permanent partial disability to the Claimant as a result of his lifting injury, reasoning that allowing a roughly equal apportionment of impairment between the compensable injury and the Claimant’s preexisting condition did not constitute legal error nor was it clearly wrong in the view of the reliable, probative, and substantial evidence on the whole record. The Court went on to offer guidance for future evaluations, holding that (1) “Definitely ascertainable” and “definitely ascertained” for purposes of our workers’ compensation statute, West Virginia Code § 23-4-9b (2003), refer to the existence of a preexisting condition, and not to the precise degree of impairment to be apportioned; (2) Quantifiable information, such as pre-injury range of motion measurements, prior permanent partial disability awards, or pre-injury conditions or procedures that would yield a percentage of impairment from a Table, is not always required to apportion impairment, as long as there is a reasonable basis for apportionment based on other competent evidence; and (3) Whether preexisting degenerative changes of the spine would qualify for an impairment rating using either the Range of Motion Model or West Virginia Code of State Rules Tables 85-20-C, D or E is not the standard for whether those changes can be ascertained and then apportioned.

Takeaway

This case illustrates the need for physicians to identify and carefully explain the basis for their apportionment decisions, leading this court to offer some guidance for future evaluations. If apportionment is needed, the analysis must consider the nature of the impairment and its possible relationship to each alleged factor and provide an explanation of the medical basis for all conclusions and opinions.

Questions about this case can be directed to Evan Jenkins, Esquire at 412- 926-1419 or ejenkins@tthlaw.com.