The concept of legal presumptions in workers’ compensation is not new in New Jersey.  The first presumption legislation in New Jersey was passed in 1964 concerning volunteer firefighters who contract respiratory disease in certain circumstances. The second presumption legislation was passed in 1988 in regarding to firefighters with cardiovascular or cerebrovascular injuries or death in responding to a law enforcement, public safety or medical emergency.  More recently the 2019 Thomas P. Canzanella Twenty First Century First Responders Protection Act and the 2020 Essential Employees Law have generated a great deal of discussion among workers’ compensation professionals, carriers and employers on what legal presumptions in workers’ compensation really mean.

In virtually all workers’ compensation claims (excepting presumption claims), the petitioner has the burden of proof on the issue of compensability as well as on the issue permanency, but in cases involving a legal presumption, the burden shifts to the employer to disprove compensability.  In a COVID claim petition involving a presumption, the petitioner must prove that he or she meets the definition of an Essential Employee and that he or she contracted COVID.  At that point the respondent must offer its proofs and attempt to rebut the claim by showing more likely than not that the virus was not contracted at work.  Hence the notion that the presumption is “rebuttable.” 

It is helpful to study the precise language of the New Jersey Essential Employees Law with respect to rebuttable presumptions:  The law says:  “This prima facie presumption may be rebutted by a preponderance of the evidence showing that the worker was not exposed to the disease while working in the place of employment other than the individual’s own residence.”  The last six words simply mean that employees will not receive a presumption for exposure to COVID while working at home.

Some state COVID-19 presumption laws spell out the proofs which legislatively rebut the COVID presumption.  For example, the Illinois COVID-19 Essential Employees Law provides specific examples of rebuttal evidence:

1. The employee was working from his or her home, on leave from his or her employment or some combination thereof, for a period of 14 or more consecutive days immediately prior to the employee’s injury, occupational disease or period of incapacity resulting from exposure to COVID-19, or:
2. The employer was engaging in and applying to the fullest extent possible or enforcing to the best of its ability, industry-specific sanitation, social distancing, and health and safety practices by the Centers of Disease Control and Prevention or Illinois Department of Public Health; or
3. The employee was exposed to COVID-19 by an alternate source.

New Jersey’s COVID presumption law does not address what sort of evidence may rebut a COVID-19 presumption claim unlike the Illinois law cited directly above.  Professor Michael Duff from the University of Wyoming College of Law provides an interesting state-by-state survey on the differences in COVID presumption statutes in his essay entitled “Workers’ Compensation Emerging Issues Analysis.”  He points out that the problem with presumption language in states like New Jersey is that judges of compensation have no legislative guidance on types of evidence which statutorily rebut a presumption.

Among the possible kinds of evidence which may rebut a New Jersey claim for COVID-19 are the following:

1. The gap between petitioner’s last day of work and the contraction of COVID is too great according to current medical guidelines;
2. The employee engaged in certain non-work activities that provided a much greater risk of COVID-19, such as travel to other states with high rates of COVID exposure or attendance at large gatherings where a COVID-19 breakout occurred;
3. The employee was around family members or friends who were diagnosed with COVID before the employee was diagnosed with COVID;
4. The employee had a second job with a more likely exposure to COVID-19;
5. The employee had small children whose schools closed due to COVID-19 outbreaks and whose children became symptomatic with possible COVID.

These are just some examples of evidence that may, in a given case, rebut the legal presumption.  One important question that Professor Duff raises is this:  what happens to the presumption if the employer does offer strong rebuttal evidence?  Does the presumption then disappear with the result that the burden then shifts back to the employee to prove how he or she was exposed at work? The New Jersey statute is silent on this question.  The practical answer is that any good petitioner’s attorney who has evidence demonstrating a work source of COVID-19 would then offer such proofs in the face of strong rebuttal evidence. 

Trials will eventually occur in the Division of Workers’ Compensation in COVID-19 cases given that thousands of claim petitions have already been filed.  Judges will deal with the employer’s proofs on rebuttal of presumptions on a case-by-case basis.  One difference between a COVID-19 case and other workers’ compensation cases has to do with medical records.  In the ordinary workers’ compensation case the focus is only on the claimant’s medical condition.  But in a COVID-19 case, in order to disprove a claim by the more likely than not standard, the employer will often have to argue that someone in close contact to the petitioner was COVID-19 positive. That medical evidence may be pivotal.  It may prove challenging in some cases to prove that a non-party to the case to whom the petitioner may have been exposed to COVID was in fact COVID-19 positive.    

No discussion on COVID-19 litigation should end without mention of one crucial point.  Even if the injured worker is an Essential Employee and compensability is found in favor of the employee, the burden of proof on permanent partial disability always rests on the employee.  This means all the same proofs apply as in other compensation claims, namely proof by objective medical evidence of a restriction in the body as well as a significant impact on the employee’s work or non-work life activities.  As COVID-19 continues to spread in the United States, one of the observations physicians and scientists have made is that many Americans have contracted COVID a second time or even a third time. How does second non-work-COVID impact litigation and negotiation? Well, consider a case involving a worker who injures his back lifting at work but then has a subsequent non-work back injury before being examined by an expert. That second accident almost always lowers the value of the claim, and in some cases may erode all the value depending on the severity of the second accident.   What about someone who has COVID-19 arising from work and then contracts COVID a second time from a home exposure prior to medical evaluation?  How does a claimant with second COVID from a home exposure separate the current complaints from the impact of the earlier work COVID?  This phenomenon is already happening in COVID cases in New Jersey and in other states.  Employers must always ask for all treating records up to the present in any COVID litigation for this very reason.

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John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.

For those readers who are interested in learning about current issues in workers’ compensation, I highly recommend the 2021 LexisNexis book entitled “Workers Compensation Emerging Issues Analysis.”  I was asked to review this book and found it to be chock full of cutting-edge articles written for attorneys, employers, physicians, adjusters, carriers and third party administrators.

The book consists of a collection of well-written articles by prominent authors from around the nation in the field of workers’ compensation law. A large portion of the book is devoted to COVID-19 pandemic issues ranging from how to analyze compensability of COVID-19 occupational disease claims, what presumptions really mean, and the impact of the pandemic on the traditional going-and-coming rule.  Among the most enlightening articles was one written by Michael C. Duff, Professor of Law at the University of  Wyoming.  The author discusses how presumptions actually work in the law, comparing the specific language in presumption laws from various states, and focusing on how employers may attempt to rebut the statutory presumptions. 

In addition to the analysis on pandemic issues, there are also many other articles of interest to practitioners, including the impact of medical marijuana and opioid laws, understanding the AMA Guidelines in workers’ compensation, (used in most states but not in New Jersey), ride-sharing and the independent contractor defense, as well as a summary of state laws dealing with weekly limits on total disability in workers’ compensation.

One of the most impressive sections contained in this book is the state-by-state legislative and case law analysis.  For each state there is a section called “trends analysis” and a section that reviews cases of interest to practitioners and employers since 2020. I liked reading the developments in each state because it makes it easy to spot and track legal trends in workers’ compensation.  For attorneys, claims managers, supervisors and employers with business in several states, the book is absolutely essential. 

“Workers’ Compensation Emerging Issues Analysis” was co-edited by Mr. Thomas Robinson, Esquire and the National Workers’ Compensation Defense Network (NWCDN).  Mr. Robinson is the esteemed co-author of Larson’s Workers’ Compensation Law (LexisNexis) and Larson’s Workers’ Compensation, Desk Edition (LexisNexis).  The NWCDN is a nationwide network of independent law firms dedicated to promoting excellence in the practice of workers’ compensation law.  NWCDN runs some of the best seminars available to member practitioners and employers at various venues around the country.As an avid reader of all things workers’ compensation, I enjoyed the fact that there was so much original thought in this book. The articles raise many questions that employers and practitioners will be trying to answer in the coming years. Frankly, anyone involved with workers’ compensation will benefit by reading this book. 

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John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.

Written by: Julie Hooten, Tracey Jones, and Shivani Shah

In a recent decision issued by the North Carolina Court of Appeals, Judge Chris Dillion remanded Blackwell v. N.C. Dep’t of Pub. Instruction back to the Full Commission where a claimant’s appeal to convert her weekly benefits to a single, lump-sum award was denied.

Background of the Case

The claimant was a former high school teacher who was injured on the job breaking up a fight.  She was diagnosed with multiple physical and mental injuries and the Full Commission found her to be permanently and totally disabled and awarded weekly benefits. The claimant later requested her award to be converted into a single, lump-sum payment, as per by N.C. Gen. Stat. §97-44 (2018).  Both the Deputy Commissioner and the Full Commission denied her request and she appealed. The sole issue on appeal was whether the Commission erred in concluding that a lump-sum award under Section 97-44 is never allowed where the sum of future installments is uncertain. The Commission relied on the “Uncommuted Value Clause” of N.C. Gen. Stat. §97-44 and reasoned that it prohibits any lump-sum award which would exceed the sum of the future installments that are being replaced. The Commission denied the claimant’s request on the basis that a lump sum award was not allowed in any situation where the number of future payments was uncertain.  Under the original Opinion and Award, the claimant was eligible to receive weekly benefits for the rest of her life.  As a result, the number of future installments the claimant was entitled to receive was unknowable because her weekly compensation could be terminated upon her death or a showing that she is capable of returning to suitable employment.  The Commission thus concluded that a lump-sum award could exceed the amount she would have otherwise received had she continued to receive her benefits in weekly installments.

In its decision, the Court of Appeals noted that it has held that awards for permanent disability may be paid in weekly installments or in one lump sum.  The Court acknowledged that the Commission has the authority, in unusual cases, to award a lump-sum even where the sum of future benefits is not certain, if there is competent evidence tending to show how long the claimant was reasonably likely to receive future benefits.  Competent evidence would include a mortality table to determine life expectancy.  The Court also indicated that the Commission should discount the sum of expected future benefits when there is competent evidence to set an appropriate discount rate.

The Court’s decision was, essentially, a roadmap for the Commission.  First, the Commission should determine whether the claimant has shown her situation to be an “unusual case.”  Second, the Commission should consider any competent evidence, such as the mortality table in N.C. Gen. Stat. §8-46, to determine the number of installments that the claimant is expected to receive under her current award. Lastly, in calculating the award, the Commission may discount the expected future installments to a present value.

Implications for Defendants

The Court of Appeals established steps for the Commission to determine whether a lump-sum award is appropriate.  The conclusion by the Court of Appeals that a lump sum payment for ongoing weekly installments may be an option is concerning for defendants in workers’ compensation cases.  In permanent and total cases, it would behoove the Plaintiff’s Bar to request a lump sum payment in every case in order to collect a fee and ensure their client receives the most benefits he or she can get.  However, the Court of Appeals did note that the lump sum award should be ”in the best interest of the employee” and that phrase should be “construed narrowly.”  The Court specifically said that trying to reduce credit card debt would not be a reason to grant such an award.

It will be interesting to see how the Commission defines “unusual” in this case.  If it is read narrowly, defendants may not have as much to worry about and the implications of this case may be minimal, but if the Commission defines “unusual” broadly, defendants will surely see the ramifications of this case for years to come. We will continue to monitor this case to determine its full impact.

If you have questions about the recent court decision, or other aspects of a workers’ compensation claim in North Carolina, reach out to a member of our Workers’ Compensation team.

Written by: Matthew Flammia

In North Carolina, an injured employee may recover damages from both the workers’ compensation carrier as well as a third-party tortfeasor. In accepted claims, where a third-party causes the compensable injury, the workers’ compensation carrier is provided an automatic lien against any third-party recovery that the injured employee receives arising out of the compensable incident. North Carolina General Statute § 97-10.2 even creates a right for the workers’ compensation carrier to seek subrogation against the third party independently.

According to the statute, the injured employee has the exclusive right to file a suit against the third-party for twelve (12) months. Thereafter, the workers’ compensation carrier has the right to file a subrogation claim until sixty (60) days before the expiration of the statute of limitations. Finally, the injured employee and workers’ compensation carrier can always work together and jointly pursue the third-party claim.

Practice Tip for Insurers

If there has been an accepted workers’ compensation claim caused by a third-party tortfeasor, insurance carriers may have subrogation rights, and there is a chance that an insurer could recover some of the money paid towards the claim. If the injury is caused by third-party negligence, immediately place all parties on notice of the insurer’s subrogation rights and begin to investigate the claim on the best way to recover money paid towards the claim.

If you have questions about subrogation rights or other aspects of a workers’ compensation claim in North Carolina, reach out to Matthew Flammia or a member of our Workers’ Compensation team.

By:  Jeannette Herrera (Partner - Sacramento Office)

The California Supreme Court declined to review the appellate court decision holding that the derivative injury doctrine does not preclude a lawsuit alleging an employer business negligently exposed a worker to COVID-19 that is alleged to have resulted in a subsequent death of a family member. As such, Plaintiffs may proceed to litigate the issues in civil court. 

Earlier, the Court of Appeals reasoned that the workers' compensation exclusive remedy provisions did not apply because the derivative injury doctrine does not apply to the subject claim. They discussed that the spouse may have had a claim regardless of the employee being injured. 

This case represents a blow to employers seeking protection under the workers compensation exclusive remedy rule.  However,  the event Kuciemba decision in another district found the opposite. There's is no final decision on the merits of the underlying claim here yet,  but we will be sure to keep you updated. 

Learn more here:  https://highlights.hannabrophy.com/post/102hn3n/ca-supreme-court-declines-to-hear-sees-candies-case

Legal Update by Attorneys Alison Stewart and Tyler Smith, and Law Clerk Jordan Gehlhaar

Significant debate has stemmed from the legislature’s addition of the “shoulder” to Iowa Code Section 85.34(2). The Iowa Supreme Court settled this debate, in part, in their recent decisions, Chavez v. M.S. Technology and Deng v. Farmland Foods.

Prior to the 2017 amendment, shoulder injuries were considered a “whole person” or “body as a whole” injury, which result in industrial disability analysis. In contrast, for scheduled injuries, claimants receive a rating of their functional impairment to the body part; this is multiplied by the number of weeks provided by the legislature (400 weeks for the shoulder) to ascertain the number of weeks in which compensation is due. However, since the amendments, claimants have consistently argued industrial disability analysis is still appropriate for shoulder injuries despite the legislative change—focusing on the anatomy of the shoulder. This created an issue of statutory interpretation for the Agency and courts because the legislature did not define what constituted the “shoulder.”

Originally, the Agency determined “shoulder” was limited to the ball and socket joint, and did not include other connected anatomical parts. See Smidt v. JKB Restaurant, LC, File No. 5067766 (May 6, 2020, Arb. Dec.). Slowly, through various opinions, the definition of “shoulder” has expanded to include anatomical parts that are essential to the functioning of the shoulder joint, such as the rotator cuff muscles, labrum, and acromion.

Claimants Chavez and Deng both sustained tears of their rotator cuff muscles. The lower courts determined these were scheduled shoulder injuries, and both claimants appealed. Each claimant argued that the shoulder was limited to the ball and socket joint, whereas the employers and insurers argued a broader interpretation including “the tendons, ligaments, muscles, and articular surfaces connected to the glenohumeral joint.”

The Iowa Supreme Court first determined that “shoulder” is ambiguous, and that statutes should be interpreted reasonably in accordance with the legislature’s intent. Accordingly, the Court held:

These rules of statutory construction guide our conclusion that “shoulder” under section 85.34(2)(n) must be defined in the functional sense to include the glenohumeral joint as well as all of the muscles, tendons, and ligaments that are essential for the shoulder to function. . . Viewing section 85.34(2) in its entirety, it is apparent that the legislature did not intend to limit the definition of “shoulder” solely to the glenohumeral joint.

Under this functional analysis, the Court determined rotator cuff injuries are injuries to the shoulder because those muscles are essential for the shoulder to remain stable and work properly. The Court also looked to the language contained in medical records, the AMA Guides, and the treating physicians’ interpretation of the injury.

The Court recognized that more litigation “may be needed in the short term to develop the exact parameters of a scheduled shoulder injury.” Although these opinions provide some clarity, we can expect some additional litigation regarding specific parts in the shoulder area. Ultimately, absent legislative change, this determination will likely be based upon medical opinions regarding what is essential to the functioning of the shoulder.

Peddicord Wharton will continue to monitor this issue and provide updates.

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Peddicord Wharton Legal Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2022 Peddicord Wharton. All Rights Reserved.

Legislative News

The 2022 West Virginia Legislature session surprisingly had a quiet finish despite the Republican supermajority and a bold attempt to fundamentally change intentional torts for workplace injuries. The House and the Senate proposed separate bills to completely change the definition of deliberate intent, commonly known as Mandolidis actions based on the seminal West Virginia case and resultant legislation. Ultimately the bills did not pass out of committee, so the 2015 amendments to West Virginia Code § 23-4-2 remain in place.

The Legislature passed an important and long-overdue bill sponsored by the Insurance Commissioner. House Bill 4296 cleaned up and revised outdated provisions within Chapter 23 of the West Virginia Code, which pertains to workers’ compensation. The bill modernized and updated workers’ compensation statutes, removed or revised provisions made obsolete by legislation and regulatory revisions in 2005 and 2006.

Recent Cases

The West Virginia Supreme Court of Appeals continues to analyze compensability in workers' compensation claims where the question is whether an injured employee's disabling condition was caused by a preexisting chronic condition or by a new injury. The Court is exploring the application of its holding in Syllabus Point 3 of Gill v. City of Charleston, 236 W. Va. 737, ___, 783 S.E.2d 857, 858 (2016)("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 discreet new injury, that new injury may be found compensable.")

In Ramaco Resources, Inc. v. Rollins, No. 19-1163, 2021 WL 5216712, at *4 (November 9, 2021)(memorandum decision), the Court found the preponderance of evidence demonstrated Mr. Rollins aggravated a noncompensable wrist fracture while at work, and reversed the Board of Review and the Administrative Law Judge because they did not properly apply the Gill case. Rollins injured his right wrist at work on April 20, 2018. His employer questioned compensability because Rollins fractured the right wrist at home on January 5, 2018, and had recently returned to work when the new injury occurred. After the January 5 injury at home, Rollins had surgery on January 9, 2018, and completed physical therapy. He reported some stiffness and weakness in the wrist on April 2, 2018. His doctor stated he could return to work on April 9, 2018, without restrictions. Mr. Rollins returned to work full duty. On April 20, 2018, Mr. Rollins injured the same right wrist at work while loosening a bolt with a ratchet on a piece of heavy equipment. At the emergency room he reported that his right wrist popped while he was loosening a bolt with a pipe wrench. An x-ray showed a slightly impacted fracture at the volar aspect of the distal radial metaphysis. The diagnosis was right wrist fracture.

Claimant was treated by Dr. McCleary on April 23, 2018, who noted that Rollins had swelling and tenderness in the distal radius. Dr. McCleary also noted that an x-ray showed a nondisplaced distal radius fracture. He diagnosed a right wrist ulnar joint sprain. Dr. Mukkamala performed an independent medical evaluation of Mr. Rollins and determined he did not sustain a new injury on April 20, 2018. The x-ray performed on April 30, 2018, showed that the fracture was still visible and healing. Dr. Mukkamala believed Mr. Rollins prior right wrist fracture had not completely healed when the work incident occurred. He also noted that the x-rays revealed osteopenia, which was noncompensable.

A board-certified radiologist compared the x-rays taken on Mr. Rollins' right wrist on January 5, March 5, and April 20, 2018 and concluded that a January 5, 2018, right wrist x-ray (performed three months prior to the alleged work injury) showed an acute fracture of the distal radius and x-rays performed on April 20, 2018, showed a slightly impacted fracture of the distal radius. Dr. Luchs concluded that the x-rays showed a chronic healing distal radial fracture. Based on Dr. Luchs' findings, Dr. Stoll agreed with Dr. Mukkamala's assessment of Mr. Rollins did not sustain a new injury on April 20, 2018. Dr. Stoll believes that Mr. Rollins' initial fracture had not fully healed before he returned to work. Dr. Stoll also stated that the x-rays revealed osteopenia, which was non-compensable. Finally, he noted that while the treating physician was requesting authorization for an MRI, an MRI would not add any information to help the decision making process.

Ramaco first argues that the Board of Review's Order upholding the ALJs' compensability ruling is clearly wrong and contrary to the preponderance of the evidence. Ramaco states that substantial medical evidence shows that Mr. Rollins's noncompensable, wrist fracture of January 5, 2018, had not healed by the time he allegedly injured himself at work on April 20, 2018. Ramaco states that Dr. Luchs, Dr. Mukkamala, and Dr. Stoll all stated that Mr. Rollins merely aggravated a previous noncompensable injury. Mr. Rollins responds that simply because he suffered a prior fracture to the same body part does not now immunize Ramaco from responsibility in this claim. And Mr. Rollins contends that it is clear he was injured at work on April 20, 2018, considering he promptly reported the injury and sought medical attention. Mr. Rollins states that it was proper for the ALJ and the Board of Review to give considerable weight to the medical opinion of Dr. McCleary who provided treatment for his compensable injury and the prior wrist fracture.

The majority opinion of the Supreme Court found the x-ray evidence "critical" because the case involved a wrist fracture. The Court noted Dr. Luchs's review of the x-rays taken of Mr. Rollins's right wrist on January 5, March 5, and April 20, 2018, and determination that the January 2018 fracture had not healed as of April 20, 2018. Dr. Luchs stated, unequivocally, that the abnormalities revealed by the x-rays taken of Mr. Rollins's wrist following the injury of April 20, 2018, including the fracture of the distal radius, date back to January 2018. The Court found the administrative law judge "erroneously discounted this objective x-ray evidence in lieu of Dr. McCleary's self-serving, subjective belief." Importantly, the Court found, Dr. Luchs' findings are entirely consistent with the evaluation findings rendered by Drs. Mukkamala and Stoll. Inferring that Dr. McCleary subjectively believed that Mr. Rollins's fracture was completely healed, and that Mr. Rollins suffered a new injury, Dr. McCleary's belief is insufficient to support the compensability ruling when the other experts produced evidence showing that Mr. Rollins merely aggravated the preexisting injury.

The Court held that even when all inferences are resolved in favor of the ALJ's and Board of Review's findings, there is insufficient evidence to sustain the decision. The Court agreed with the Employer's argument the ALJ and Board of Review erred by failing to cite or discuss this Court's holding in Gill. "Because a preponderance of the evidence in this case demonstrates that Mr. Rollins aggravated his noncompensable wrist fracture while at work on April 20, 2018, Gill is a barrier to compensability. So, the [ALJ] and Board of Review committed legal error by failing to apply Gill to the facts presented." Ramaco Resources, Inc. v. Rollins, 2021 WL 5216712, at *5 (W.Va., 2021).

In a separate concurring opinion, Justice Jenkins and Justice Armstead noted the dissenting opinion mischaracterized the Court's comprehensive review of the record and its finding Rollins merely aggravated a preexisting injury to his right wrist.

Justice Wooton and Justice Hutchison wrote separate and strongly worded dissenting opinions. Justice Hutchison said the majority's opinion "violates the fundamental process due to every party in a lawsuit" when it substituted its findings of fact for those of the lower tribunal merely because it disagrees with those findings. Justice Hutchison note the Court should give substantial deference to the findings of fact of the administrative law judge that claimant presented sufficient evidence he suffered a personal injury in the course of and resulting from his employment.  He noted the ALJ rejected the expert testimony offered by the employer in favor of the expert testimony offered by the claimant, and concluded that the claimant sustained a new, compensable injury to his wrist. "The ALJ's conclusion was plausible on the record below, and that should have been the end of this Court's inquiry. The record clearly supports the ALJ's factual finding, as well as supports the Board of Review's affirmance of the judge's decision. The majority decision was clearly wrong in its decision to impose its after-the-fact judgment of the evidence. The fact that a claimant may have suffered a prior fracture to the same body part as the one injured in the workplace should not immunize an employer from responsibility for the claim. I respectfully dissent from this memorandum decision's subversion of the fact-finding process." Ramaco Resources, Inc. v. Rollins, 2021 WL 5216712, at *9 (W.Va., 2021)(Hutchison, J. dissenting).

In his dissenting opinion, Justice Wooton clarified his belief the evidence before the ALJ supported a finding Rollins suffered a discrete new injury to the healed right wrist fracture:

"Mr. Rollins' treating orthopedic surgeon testified that he was certain Mr. Rollins sustained a discrete, new injury on that date as evidenced by 1) the immediate pain and swelling; 2) the passage of time from the prior injury, which allowed for complete healing; 3) the greater amount of displacement of the fracture from the first fracture, as shown on x-ray; and 4) an MRI which showed the distal radius fracture in a “different formation” than the first fracture." Ramaco Resources, Inc. v. Rollins, 2021 WL 5216712, at *9 (W.Va., 2021) (Wooton, J. dissenting). He dissented because the majority made itself "a surrogate fact-finder" in contravention of West Virginia law.

The Supreme Court held oral argument on February 16, 2022, in the case of James Moore v. ICG Tygart Valley, LLC, No. 20-0028 in which the issue for resolution is the compensability of C5-6 spondylosis with C6 radiculopathy as secondary conditions. Claimant's counsel argued the initial work injury caused a discrete new injury that resulted in chronic cervical and radicular pain. Claimant's counsel also argued the work injury aggravated or accelerated the preexisting disc disease. The Employer argued the C5-6 spondylosis with C6 radiculopathy was a condition that preexisted the work injury and was not a discrete new injury. Both parties discussed the impact of the Gill case to the evidentiary record in their briefs and at oral argument. A decision has not been issued. You can watch the oral argument at http://www.courtswv.gov/supreme-court/calendar/2022/Dockets/feb-16-22ad.html

Shareholder Adam Brown, who also serves as our Director of Professional Development, was invited to speak on a panel for the MSBA's New Lawyers Section on March 29. The program was called Preparing for the Interview Process from an Employer's Perspective.