State News

This coming May, there’s no place finer than North Carolina

Bill proposes to create new cause of action for unfair settlement practices of a workers’ compensation claim

Right on cue: Bill proposes to remove the term “incurable imbecility” from LIBs statute

To interpret the current LIBs statute, appeals court approves definition of “imbecility” from dictionary published when William Howard Taft was President  

Dirk Johnson appointed as Injured Employee Public Counsel

Hit the links for a good cause in October

Legal Update by Attorney Alison Stewart and Law Clerk Morgan Todd Borron

When a worker falls at work, and the fall cannot be attributed to an acute event caused by the work (e.g., tripping over an object, slipping on ice or water, losing balance while carrying an object, etc.), the fall will likely fall into one of two categories: idiopathic or unexplained. These types of falls require additional analysis into compensability. An idiopathic fall is one that originates from a purely personal condition to the claimant. See Koehler Elec. v. Wills, 608 N.W.2d 1, 4 (Iowa 2000) (citing Arthur Larson, Workmen’s Compensation Law, sec. 12.11, at 3-356 (1994)); Bluml v. Dee Jay’s, Inc., 920 N.W.2d 82, 84 (Iowa 2018). An unexplained fall is where a claimant trips, slips, or falls for no specifically identifiable reason. Bartle v. Sidney Care, Inc., 672 N.W.2d 333, 2003 WL 22346956 at *2. (Iowa Ct. App. Oct. 15, 2003).

There are different standards that apply to these different types of falls. In Bluml, the worker sustained an idiopathic fall. The Iowa Supreme Court determined that “the claimant should have both the burden and the opportunity to meet the increased-risk test[,]” and “may recover if he or she proves that ‘a condition of his [or her] employment increased the risk of injury.’” Bluml, 920 N.W.2d at 91 (quoting Koehler Elec., 608 N.W.2d at 5). The Court noted that for unexplained falls, the actual-risk rule is the appropriate standard. Bluml, 920 N.W.2d at fn.1.

Under the actual-risk doctrine, an injury is compensable “as long as the employment subjected [the] claimant to the actual risk that caused the injury.” Lakeside Casino v. Blue, 743 N.W.2d 169, 176 (Iowa 2007) (quoting Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law, sec. 3.04, at 3-5 (2007)). “[U]nder the actual-risk doctrine, the injury must result from a condition, risk, or hazard of employment.” Murray as Conservator of Meyers v. Lazer Spot, Inc., No. 21004833.01, 2022 WL 16826433 at *11 (Iowa Workers’ Comp. Comm’n Arb. Dec. July 28, 2022) (citing Lakeside Casino, 743 N.W.2d at 178; Hanson v. Reichelt, 452 N.W.2d 164, 168 (Iowa 1990)).

In Lakeside Casino, the worker was injured after she stumbled while walking down stairs at work. The Iowa Supreme Court stated, “it is a matter of common knowledge that stairs pose an actual risk of stumbling or falling when traversing them, similar to the risk posed by going up and down ladders. Although Blue did not stumble due to any particular defect in or condition of the stairs, it is not necessary under Iowa case law that that the stairs in Blue’s workplace be more dangerous than a typical set of steps. In addition, it matters not that she stumbled through her own inattention. Blue’s misstep was causally related to the fact that she was walking on stairs, and therefore, the Commissioner rationally concluded her injury arose out of her employment.” 743 N.W.2d at 177. The Court found that “Blue stumbled on the stairs, the Commissioner finding that ‘the injury occurred from the hazard of traversing stairs.’ It is this causal relationship between a condition of Blue’s employment—the stairs—and her injury that distinguishes the present case from those in which we have determined the employee’s injury was not compensable” (referring to earlier discussion distinguishing McIlravy, where EE injured knee walking across level floor; Gilbert, where EE arguably injured neck straightening up from signing a document; Miedema, where EE injured back turning to flush toilet; and Musselman, where EE injured back leaning against wall for balance). Lakeside Casino, 743 N.W.2d at 177-178.

In Lapcheske v. Polk Cty., No. 5055505, 2019 WL 7559785 (Iowa Workers’ Comp. Comm’n App. Dec. Nov. 6, 2019), the worker suffered an unexplained fall on a hard floor (described as concrete, marble, or terrazzo throughout the record) resulting in an arm injury. The treating physician opined that claimant’s landing on a hard surface resulted in a “higher-energy fracture than if she would have fallen on carpet” and “elevated the severity” of the fracture; Dr. Bansal opined similarly. Lapcheske, at *3. The Commissioner stated, “Simply put, claimant’s arm was not fractured until it struck defendant’s floor. This factor distinguishes the injury from one that coincidentally occurs at work.” Id. at *4. The Commissioner held that “the hard floor in this case did present an actual risk of injury; in fact, the hard floor even went so far as to increase the risk of injury. Thus, applying the actual-risk doctrine to this case, I find the hard floor was a condition and ultimately a hazard of claimant’s employment.” Id.

In McClain v. Lennox, No. 1664566.01, 2021 WL 2624684 (Iowa Workers’ Comp. Arb. Dec. Apr. 22, 2021), affirmed 2021 WL 4447174 (Iowa Workers’ Comp. App. Dec. Sept. 22, 2021), the worker tripped and fell landing on his right side. He thought he caught his toe on an uneven portion of the cement floor or a corner of a pallet but was not sure. Defendants argued that claimant’s fall was idiopathic or unexplained. The evidence presented at hearing showed that claimant had caught his toe on some kind of crack or obstruction, causing the fall and subsequent injury. McClain, 2021 WL 2624684 at *6. This was affirmed on appeal, with the Commissioner noting “I therefore affirm the deputy commissioner’s finding that claimant’s fall was explained, meaning the resulting injury arose out of and in the course of claimant’s employment.” McClain, 2021 WL 4447174 at *1.

In 2019, there was amendment to Iowa Code section 85.61, adding that “Personal injuries due to idiopathic or unexplained falls from a level surface onto the same level surface do not arise out of or in the course of employment and are not compensable under this chapter.” Iowa Code 85.61(7)(c). In light of the subsequent case law, however, we think application of this amendment is limited to cases where the worker does not hit another object (like a wall, or a desk or shelf) on the way to the ground.

Peddicord Wharton will continue to monitor this evolving area of the law and provide relevant updates.

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SK Management, LLC v. King et al., No. 2021AP490, unpublished judge authored (Wis. Ct. App. Aug. 23, 2022 (White, J.)

The applicant, Donald King, was injured while working on a demolition project at a building owned by SK Management. SK Management was not insured, so the Uninsured Employers Fund (UEF) covered the claim. UEF then sought to recover the payments it made from SK Management. SK Management filed a reverse hearing application, claiming it was not King's employer.

King worked on a crew that was brought to the SK Management jobsite by Brian Schweinert. Background regarding the history of this relationship includes that Tim Olson, SK Management's operations manager, began hiring Schweinert, and his sole proprietorship, Mr. Phixitall, to do work such as demolition, maintenance, snowplowing, and lawn mowing at various properties managed by SK Management in 2015.  Schweinert asked Olson if he could bring helpers, and Olson said he did not care.  Olson generally relayed what jobs needed to be done through Schweinert, though occasionally Olson would "appear at jobsites and direct the workers himself.”

Although Schweinert brought some of his own tools to the jobsites, SK Management supplied "equipment including dumpsters, garbage bags, painter’s uniforms, dust masks, safety glasses, and gloves.” King himself brought no tools to the jobsite.

Although some early jobs were performed on a bid basis, after 2015, SK Management paid Schweinert and all of the workers procured by Schweinert, on an hourly rate set by Olson.  Olson approved any merit hourly wage increases after consultation with Schweinert, and if Olson was dissatisfied with a worker’s performance, he would tell Schweinert not to bring the worker back and Schweinert would comply.

Each week, SK Management issued one check to Schweinert, encompassing all of the hours worked by Schweinert and the other workers. Schweinert cashed the check and distributed the pay appropriately. Schweinert retained $1 per hour from the other workers’ pay to cover supplies and certain tools on the jobsite.

The ALJ and the Commission both found that King was SK Management's employee, and dismissed SK Management's reverse application. The circuit court affirmed.

On appeal to the Court of Appeals, SK Management did not dispute that it was an "employer" within the meaning of Wis. Stat. § 102.04(1)(b). However, SK Management argued that it was not the employer of Schweinert or King. Instead, SK Management asserted that Schweinert was an independent contractor excluded from the definition of "employee" under Wis. Stat. § 102.07(8)(b). It also asserted that King and SK Management did not have an employer-employee relationship under the Kress Packing test. It argued that Schweinert, not SK Management, was King’s employer.

The Court of Appeals first agreed with the Commission that it was permissible to segregate the demolition work that King performed from other work—lawn mowing, snowplowing, auto repair—that Schweinert did through his independent contractor business. The Court then affirmed the Commission's finding that, with respect to the demolition work, Schweinert met only two of the nine conditions necessary to be an excluded independent contractor rather than an employee under Wis. Stat. 102.07(8)(b).

SK Management argues that even if Schweinert is not an excluded independent contractor, he was still King’s employer under the meaning of Wis. Stat. § 102.04(1)(b). The Court of Appeals rejected that argument, noting:

…because Schweinert is an employee of SK Management—which we established above when we concluded Schweinert worked for SK Management and was not an independent contractor— he cannot be an employer of another person within the performance of those same duties for SK Management. See Whittingham, 305 Wis. 2d 613, ¶¶9-10.

The Court saw the threshold issue as whether King’s employment fell under a contract for hire with SK Management. It noted that there need not be direct communication between prospective employer and prospective employee to establish the employment relationship, adding, however, that some authorization, express or implied, is needed to establish a subsequent contract of hire. The Court went on to concluded that the Commission's analysis that King worked under a contract for hire with SK Management was supported by substantial and credible evidence. It observed:

King was not hired until Olson authorized Schweinert to do so. Olson controlled how much King and Schweinert were paid. Because the record supports that Schweinert was an employee of SK Management, SK Management need not expressly hire King. It is sufficient that SK Management had actual notice of King’s work on the demolition work, as shown by Olson speaking directly to King and directing his work on occasion. Therefore, we conclude that a contract for hire was established.

The Court then turned to the issue of whether there was an employer-employee relationship between SK Management and King. It noted the Kress Packing test is applied to determine whether a person is an employee under Wis. Stat. § 102.07(4)(a).

The Court went on to conclude that King had an employee-employer relationship with SK Management, as the record reflected that SK Management, through Olson, had the right to control the details of King’s work. Olson generally relayed the details of a demolition project through Schweinert, but Olson also appeared at jobsites and directed the workers himself. Olson discussed work to be performed with King directly at some points.  Olson had the final say over whether a demolition project was completed satisfactorily and would direct Schweinert and other workers to return to the jobsite as necessary to complete the work. And, SK Management, by Olson, could fire King.

Murff v. LIRC, No. 2021AP1155, unpublished judge authored (Wis. Ct. App. Aug. 23, 2022) (Brash, C.J.)

Murff began working for Aurora in at St. Luke’s Medical Center in June 2008. She worked full time as a third shift housekeeper. Murff asserts that she sustained a work injury on April 9, 2010, in a reaching/lifting incident in she felt a "pop" in her lower back.

Murff advanced three theories for recovery in her worker’s compensation claim: (1) that the work incident in April 2010 was a direct cause of her back problems; (2) that if not a direct cause, it was probable that the work incident precipitated, aggravated, and accelerated a preexisting degenerative condition beyond its normal progression; or (3) that Murff’s job duties while working for Aurora were a material contributory causative factor of her back condition’s onset or progression.

The Commission denied compensation. It had found credibility issues with the opinions of the treating physicians—none of whom testified—who related Murff’s back problems to the work incident. For example, one doctor inaccurately described the work injury. Another doctor's report contained no information relating to Murff’s job duties, nor any information relating to how those duties could have resulted in an occupational work injury. The Commission also noted problems with the IME’s opinion. However, the Commission ultimately determined that Murff had not met her burden of proving her claim.

Murff argued that her doctors had made a prima facie case of a compensable injury, which the Respondent failed to rebut because the Commission did not credit the IME's opinion either. Murff's argument relied in part on Beecher v. LIRC, 2004 WI 88, 273 Wis. 2d 136, 682 N.W.2d 29, with its burden shifting analysis in odd lot cases. However, as the court noted, Murff was not asserting an odd lot claim. Instead, Murff's case simply involved a matter of the Commission "choosing what to believe and what not to believe, and it did not believe the treating doctors."

On this point, the Court noted the "legitimate doubt" standard under which it is "‘an elementary principle’ that the claimant has the burden of proving beyond a legitimate doubt all the facts essential to the recovery of compensation." Leist v. LIRC, 183 Wis. 2d 450, 457, 515 N.W.2d 268 (1994). Still, however, the Commission "cannot reject a medical opinion unless there is something in the record to support its rejection." While it may not rely solely on its "cultivated intuition," it is not "require[d] … to provide countervailing medical expert opinions to support a legitimate doubt." Leist, 183 Wis. 2d at 460-62.

The Court went on to note that "[a] legitimate doubt comprises ‘some inherent inconsistency ... or conflict in the testimony,’" citing Kowalchuk, 234 Wis. 2d 203, ¶8. That is, there just needs to be "something in the record" to support its rejection of a medical opinion. Leist, 183 Wis. 2d at 460. In this case, the Commission explained what caused it to doubt the veracity of the opinions of the doctors who had indicated the work incident was a cause of Murff’s back problems. Indeed, the Court concluded, these findings were "simply a matter of credibility," citing E.F. Brewer, 82 Wis. 2d at 639.

Take-away Point: The Commission may deny a claim if the Commission identifies inconsistencies in the Applicant's expert medical opinions sufficient to establish legitimate doubt, regardless of the Respondent’s defenses to the claim.

Gregory Mallet v. LIRC, No. 21AP1263, unpublished per curiam (Wis. Ct. App. June 28, 2022)

Pro se applicant, Gregory Mallet, claimed injuries to his spine that involved four appeals through the Court of Appeals on three different dates of injury: an accidental injury of April 1981, occupational exposure to December 1983, and more occupational exposure from January to April 1984. This case involved the last periods of work exposure. The Commission denied the claim, crediting the IME doctor, Richard Karr, M.D., who opined that Mallett's ongoing complaints of midback and low back pain were partly due to the normal progression of non-work-related spondylosis and partly due to behavioral factors. The Commission also noted the treating doctors' notes focused largely on the earlier dates of injury and only mentioned the last period of work exposure in pre-printed response to letters sent to them by the Applicant in 2015.

The Court of Appeals affirmed the Commission decision, noting the following:

The Court noted that that Mallett cites to Miron Construction Co. v. Kampfer, 215 Wis. 2d 323, 572 N.W.2d 902 (Ct. App. 1997)4, for the proposition that an IME doctor must make a definitive diagnosis in order to be deemed credible by LIRC. The Mallett court first noted that the Miron Construction case was a per curiam opinion, so it has no precedential value and may not be cited for its persuasive value. Further, the Court noted that the Miron Construction's holding in that case does not stand for the premise advanced by Mallett.

In an actual reported case, Molinaro v. Industrial Comm., 273 Wis. 129, 133 (1956). In that case, Court stated if a medical report offered by a respondent raises a credible legitimate doubt as to whether work caused disability, it is not necessary for the respondent to go further and prove that the disability is instead caused by an off-duty accident or exposure.

Take-away Point: Prior unpublished per curiam decision in Miron Construction should not have been cited and did not support proposition that an IME doctor must make a definitive diagnosis in order to be deemed credible by LIRC.

This has been an interesting year in the California workers’ compensation community with some interesting Board decisions and legislative changes, as well as a pending Supreme Court opinion that could materially alter the workers’ compensation landscape in California.

Take Home COVID and Possible Employer Liability For Non-Employee Injury Or Death Is Still Up In The Air

The workers’ compensation community is still awaiting resolution of the take home COVID issues raised in the Court of Appeal decision in See’s Candies Inc. v. Los Angeles Superior Court et al. 

This appellate court case appears to be a first in allowing a worker's lawsuit against an employer over a family member's COVID death.  The Court of Appeal determined that the claim was not barred by the derivative injury doctrine.  The state Supreme Court denied the Petition for Review without comment and the case was returned to the trial level where it is still proceeding to trial. 

Shortly after the See’s decision was announced, plaintiffs used it to seek to revive a very similar lawsuit in a Federal Court that was applying California law, Kuciemba et al v. Victory Woodworks, Inc.  That case was dismissed on the basis of the derivative injury doctrine.  The Federal Court certified two questions to the state Supreme Court:

1.            If an employee contracts COVID-19 at his workplace and brings the virus home to his spouse, does California’s derivative injury doctrine bar the spouse’s claim against the employer?

2.            Under California law, does an employer owe a duty to the households of its employees to exercise ordinary care to prevent the spread of COVID-19?

On 6/6/22, the Supreme Court granted the request to answer these questions of state law.  The parties have briefed the issue and the last brief was filed 11/16/22.  A decision is still pending.  The Court’s responses to these questions could open the floodgates to numerous civil suits nationwide.

New Legislation Shortened the Decision Period For Presumptive Claims And Provides For Harsh New Penalties

On September 29, 2022, Governor Newsom signed Senate Bill 1127 into law.  The rules become effective as of 1/01/2023.  SB 1127 changes the California workers’ compensation landscape in three ways:

1. Reduces the decision period from 90 days to 75 days for injuries and illness defined under sections 3212 to 3212.85, and 3212.9 to 3213.2 (i.e., presumptive injuries for specified safety officers);

2. Increases the maximum number of weeks of disability benefit entitlement from 104 weeks to 240 weeks for presumptive cancer claims for specified firefighters and peace officers as defined in LC 3212.1; and  

3. Increases the penalty - up to five times the amount of benefits up to $50,000 - for claims of injury or illness as defined in sections 3212 to 3213.2 (i.e., presumptive injuries for specified safety officers and COVID-19 presumptive claims) that are unreasonably denied. (LC 5414.3)  

While all three of the above-mentioned provisions have an effective dated of 1/01/2023, the increased penalty provision of newly created LC 5414.3 applies retroactively, regardless of whether the injury occurs before, on, or after the effective date. 

The reduced decision period provision affects fewer injuries and illnesses when compared to the increased penalty provision.  However, both provisions apply to specified safety officer claims for hernias, heart trouble, pneumonia, cancer, PTSD, tuberculosis, MRSA, biochemical substances, meningitis, skin cancer, Lyme disease and to the low back under the duty belt presumption. 

By contrast, the penalty provision covers the three COVID-19 presumptions – 3212.86, 3212.87 and 3212.88 – whereas the reduced decision period provision does not. Thus, the timelines for decision-making specified for COVID presumption claims under SB 1159 still apply: 30 days under LC 3212.86 (essential workers with dates of injury before 7/05/2020); and, for qualified employees with a date of injury after 7/05/2020, LC 3212.87 (certain peace officers, firefighters and specified health care workers) allows for 30 days, whereas a decision must be made within 45 days for COVID claims arising under LC 3212.88 during a period of outbreak (for employees not covered by 3212.87).

TO: NWCDN STATE NEWS

FROM: Dill Battle, Spilman Thomas & Battle, PLLC

DATE: 02/01/2023

RE: West Virginia Workers' Compensation News – 1^st Quarter 2023

Intermediate Court of Appeals

Since opening its doors on July 1, 2022, the Intermediate Court of Appeals (ICA) has been busy in its Fall Term of 2022 and in the Spring Term of 2023. In the Fall 2022 term, 24 of 27 opinions issued by the ICA were workers’ compensation cases. Of the 24 cases, only one case was a signed opinion which will be discussed below. Through January 10, 2023, in the Spring Term, 21 of 28 opinions issued are workers’ compensation cases, and all are Memorandum Decisions. The term runs through June 15, 2023.

The ICA has heard oral arguments in several workers’ compensation cases, one of which was the first signed opinion of the ICA that was issued in its last term.  

Apportionment of preexisting impairment in permanent partial disability awards

In Duff v. Kanawha County Commission, No. 22-ICA-10 (November 9, 2022), the ICA issued a signed opinion addressing the legal question of apportionment of preexisting impairment in permanent partial disability awards. The ICA affirmed the July 26, 2022, Workers’ Compensation Board of Review order affirming the claim administrator’s June 17, 2021, order granting a 13% PPD award. In a detailed opinion written by Judge Scarr, the ICA found the Board's decision 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 view of the reliable evidence of record. The ICA was not convinced Dr. Mukkamala’s apportionment of 12% whole person impairment was arbitrary and said that Dr. Guberman’s failure to apportion preexisting impairment made his report unreliable. Dr. Guberman’s report estimated 25% whole person impairment, and said Claimant was entitled to an additional 12% PPD award.

The ICA held that:

1.      “Definitely ascertainable” and “definitely ascertained” for purposes of W. Va. 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.

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.

The ICA noted that the record in the Duff case “illustrates the need for physicians to identify and carefully explain the basis for their apportionment decisions, leading us to offer some guidance for future evaluations.”

The full opinion can be read at the following link:

http://www.courtswv.gov/intermediate-court/docs/fall2022/22-ICA-10-Scarr.pdf

Supreme Court of Appeals

In the Spring Term of the 2023 court year for the West Virginia Supreme Court of Appeals, the Court issued 11 memorandum decisions in workers’ compensation cases through January 23, 2023. The term ends June 15, 2023   

http://www.courtswv.gov/supreme-court/opinions.html

Preexisting Conditions and Compensability

There are some interesting decisions so far in the January 2023 term of the West Virginia Supreme Court of Appeals. In the recent cases of Moore v. ICG Tygart Valley and Gill v. City of Charleston the Court examined the standards for determining compensability of preexisting conditions. In syllabus point 3 in Gill v. City of Charleston, 236 W. Va. 737, 783 S.E.2d 857 (2016) the Court created a general rule that:

[a] noncompensable preexisting injury may not be added as a compensable component of a claim for workers’ compensation medical benefits merely because it may have been aggravated by a compensable injury. To the extent that the aggravation of a noncompensable preexisting injury results in a [discrete] new injury, that new injury may be found compensable.

In syllabus point 5 of Moore v. ICG Tygart Valley, LLC, ___ W. Va. ___, 879 S.E.2d 779 (W. Va. 2022), the Court expanded Gill in certain cases and created a rebuttable presumption:

A claimant’s disability will be presumed to have resulted from the compensable injury if: (1) before the injury, the claimant’s preexisting disease or condition was asymptomatic, and (2) following the injury, the symptoms of the disabling disease or condition appeared and continuously manifested themselves afterwards. There still must be sufficient medical evidence to show a causal relationship between the compensable injury and the disability, or the nature of the accident, combined with the other facts of the case, raises a natural inference of causation. This presumption is not conclusive; it may be rebutted by the employer.

In Carter v. Davis Health System, No. 21-0129 (January 19, 2023), the Court analyzed the question of compensability under the Gill v. City of Charleston and Moore v. ICG Tygart Valley standards, but it determined the employer had overcome the presumption of compensability because the evidence established the requested diagnoses were not only diagnosed before the original date of injury, but were actively symptomatic and required treatment. The Court found the claimant may have sustained an aggravation of her longstanding low back condition but did not establish she suffered a discreet new injury.

In a dissenting opinion, Justice Wooten complains the Court’s holding shows an age-related bias against older workers who are far more likely to have degenerative musculoskeletal conditions after a lifetime of physical labor. While interesting, Justice Wooten’s analysis in not necessarily germane to the factual issues before the Board of Review and the Court. He also cites to the Rule of Liberality with the Repass case, but the Rule of Liberality was statutorily overruled in 2005 by W. Va. Code § 23-4-1g: “Two decades after its decision in Repass, this Court appears to have sounded a wholesale retreat from the Rule of Liberality articulated in that case. Repass, 212 W. Va. at 92-93, 569 S.E.2d at 168-69.”

Preexisting Conditions and Compensability under Moore v. ICG Tygart Valley

In three cases, the Supreme Court remanded the cases to the Board of Review with directions to analyze the case under the new standard set forth in Moore v. ICG Tygart Valley to determine if a  preexisting condition was asymptomatic prior to the compensable injury.

Butcher v. Parker Drilling, No. 21-0504 (January 23, 2023).

Edwards v. Kanawha County Board of Education, No. 21-0480 (January 23, 2023).

Ferrell v. Northwest Hardwoods, No. 21-0208 (January 19, 2023).

Several recent cases of the Intermediate Court of Appeals have similarly remanded the cases to the Board of Review with instructions to establish new time frames for the introduction of evidence and argument to determine the compensability of preexisting conditions under the Moore v. ICG Tygart Valley and Gill v. City of Charleston standards.

Addition of psychiatric conditions applying the Hale factors

Another case of note was Genesis Healthcare Corp. v. D.N., No. 21-0500 (January 23, 2023), in which the Court addressed the question of compensability of the addition of psychiatric conditions in a claim. The Court sustained the rulings of the Board of Review and the Office of Judges that reversed the claim administrator’s order denying a request to add major depressive disorder and generalized anxiety disorder. The Court applied the factors set forth in Hale v. West Virginia Office of the Insurance Commissioner, 228 W. Va. 781, 724 S.E.2d 752 (2012). In Hale, the Court held that West Virginia Code of State Rules § 85-20-12.4 sets forth a three-step process that must be followed when a claimant is seeking to add a psychiatric disorder as a compensable injury in his/her workers’ compensation claim: (1) the claimant’s treating physician refers the claimant to a psychiatrist for an initial consultation; (2) following the initial psychiatric consultation, the psychiatrist is to make a detailed report consistent with the procedure described in W. Va. C.S.R. § 85-20-12.4; and (3) the claims administrator, aided by the psychiatrist's report, is to determine whether the psychiatric condition should be added as a compensable injury in the claim. The Court found that the evidence in the record supported the Board of Review’s decision. The treating psychiatrist provided the required information to the claim administrator, including the conditions diagnosed, the relationship to the compensable injury, the proposed treatment, and whether the claimant had returned to work. In fact, the psychiatrist provided years of treatment notes as well as a Diagnosis Update form and testified regarding the issue of compensability.

http://www.courtswv.gov/supreme-court/memo-decisions/spring2023/21-0500%20md.pdf

Petition to reopen a permanent disability claim may proceed

In the Fall Term 2022, the Court had one signed opinion for its workers’ compensation cases in a consolidated case in Charles Delbert v. Marshall County Coal Resources, Inc., No. 20-0537 and 21-0944 (November 3, 2022). The case deals with W. Va. Code 23-4-16(e), which states that a claimant may only have one active request for a permanent disability award pending at any one time. In Syllabus point 2, the Court stated: “A petition to reopen a permanent disability claim may not be denied on the basis that another active, permanent disability claim is pending. Should the statutory criteria for reopening be met, the reopened claim must be consolidated with the existing permanent disability claim as mandated by West Virginia Code § 23-4-16(e) (2005).” The second case heard by the Court was the employer’s appeal of Mr. Delbert’s permanent total disability award, which was granted following litigation. The Court found that the evidence was properly weighed an considered by the lower tribunals and affirmed the decision awarding Mr. Delbert’s PTD award.

http://www.courtswv.gov/supreme-court/docs/fall2022/20-0537%20and%2021-0944-wooton-p.pdf

For any questions, please contact:

Dill Battle

Spilman Thomas & Battle, PLLC

hdbattle@spilmanlaw.com

304-340-3800