eNotes: Workers’ Compensation – May 2024 – West Virginia

SIGNIFICANT CASE SUMMARIES

West Virginia Case Summary

David Duff, II v. Kanawha County Commission
Supreme Court of Appeals of West Virginia
No. 23-43

Decided: April 22, 2024

Supreme Court addresses employers’ burden in proving “definitely ascertainable impairment” in impairment rating cases.

Background

This case involved a low back injury, with the Claimant undergoing fusion surgery. The Employer IME physician (Dr. Mukkamala) assessed the Claimant at 25% impairment but apportioned 12% to preexisting degenerative disease. The Claimant’s IME physician (Dr. Guberman) also assessed the Claimant at 25% impairment but attributed all of it to the work injury. Of note, the Claimant also had a pre-injury history of intermittent chiropractic treatment for the low back. The Board of Review (BOR) upheld the 13% PPD award, finding that the Employer’s evidence established a pre-existing back condition with definite ascertainable functionable impairment. The Claimant appealed to the Intermediate Court of Appeals (ICA), which upheld the BOR order. The Claimant then appealed to the Supreme Court of Appeals of West Virginia (SCA).

Holding

The SCA reversed the BOR and ICA rulings, remanding to the BOR for entry of an Order awarding 25% impairment. The SCA cited the controlling statute, WV Code §23-4-9b, which reflects that if an employee has a definitely ascertainable impairment from a prior occupational or non-occupational injury or disease, compensation (PPD) cannot be awarded for the preexisting impairment. This can be shown by competent medical or other evidence. The SCA held that an employer is required to prove that a preexisting condition contributed to the Claimant’s overall impairment after the compensable injury and prove the degree of impairment attributable to the Claimant’s preexisting condition. The Court noted that Dr. Mukkamala provided no explanation for apportioning impairment in his report, which was by definition arbitrary, and did not consider his report to be substantial enough to support the BOR’s ruling. In contrast, Dr. Guberman in his IME report clearly explained why impairment should not be apportioned under the AMA Guides.

Takeaway

The SCA stopped short of ruling that there must be a baseline impairment rating pre-injury for apportionment to apply, but it also offered no guidance on what it would consider adequate evidence to show “definitely ascertainable impairment.” Outside of baseline percentage impairment ratings, an employer will likely need to show that the claimant was either restricted from doing their job to some degree pre-injury, or at least restricted to some degree with activities of daily living. Most likely, the SCA’s intent is to curb apportionment of impairment for a pre-existing condition unless an employer can prove that the claimant was truly materially impacted by that condition pre-injury, or at least require the employer’s medical expert to provide a legitimate medical explanation for apportionment of permanent impairment.

Questions about this case can be directed to Evan Jenkins at (412) 697-7403 or ejenkins@tthlaw.com.