State News : West Virginia

TO: NWCDN STATE NEWS

BY: Dill Battle, Spilman Thomas & Battle, PLLC

With assistance from clerks Carter Capehart, Taiesha Morgan, and Alan Parsons

DATE: August 28, 2024

RE: West Virginia Workers' Compensation News

West Virginia Supreme Court of Appeals

Permanent Partial Disability Calculations and Whole Person Impairment

In the Spring Term of Court in 2024, two decisions by the West Virginia Supreme Court of Appeals have significant impact on apportionment calculations of preexisting awards and conditions in workers’ compensation claims.

Logan-Mingo Area Mental Health, Inc. v. Lester, 902 S.E.2d 768, 2024 WL 2890070 (W. Va. 06/10/2024)

In Lester, the Court clarified the proper usage of the Combined Values Chart of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition to calculate permanent partial disability (PPD) when the claimant has a definitely ascertainable preexisting impairment. Although the holding was narrow, the case has significant impact on the methodology of PPD calculations.

Lester had a previous workers’ compensation injury  in 1999 resulting in a 20% PPD award after application of the Combined Values Chart combining a 14% whole-person impairment for his lumbar spine, and a 7% impairment for his thoracic spine. In 2017, Lester again filed a claim from a fall resulting in more impairment to his lumbar spine and thoracic spine, together with additional impairments to his cervical spine, left shoulder, right knee, and left knee.

After achieving maximum medical improvement for these new injuries, Dr. Bruce Guberman calculated the following whole person impairment: 8% for the cervical spine; 8% for the lumbar spine; 7% for the thoracic spine; 4% for the left shoulder; 4% for the left knee; and 4% for the right knee. He combined these calculations for a total whole-person impairment of 30% when properly applying the Combined Values Chart on page 322 of the AMA Guides Fourth Edition. Dr. Guberman, however, offset the previous lumbar and thoracic spine injuries before combining the impairments which resulted in a 19% whole-person impairment from the new injuries. When added with the previous award, this would mean that Lester would receive compensation for 39% PPD even though he only had a whole-person impairment of 30%.

Dr. Rebecca Thaxton performed her own assessment of Lester’s injuries and used a different method of calculating whole-person impairment. She agreed with the total impairment of 30% and then deducted the 20% previous PPD award, resulting in 10% attributable to the new injuries. Lester was awarded 10% PPD in the new claim, which award was affirmed by the Workers’ Compensation Office of Judges (OOJ) but reversed by the Board of Review (BOR) which granted the 19% PPD award.

The Supreme Court of Appeals reversed the BOR and upheld the 10% PPD award granted by the OOJ. In ruling that Dr. Guberman’s methodology was improper, the Court found it dispositive that Lester would receive an award that was 9% higher than his total whole-person impairment. They also held that Dr. Thaxton’s methodology was the proper usage of the Combined Values Chart when offsetting prior awards.

The Court described the correct calculation method in Syllabus Point Two of the decision:

When a claimant has preexisting, definitely ascertained impairments to multiple body parts and then sustains new compensable injuries that affect the previously impaired body parts, the proper method for apportioning the preexisting impairments is to first determine the claimant's total, unapportioned whole-person impairment using the Combined Values Chart of the American Medical Association's Guides to the Evaluation of Permanent Impairment (4th ed. 1993). Then, the total amount of the claimant's preexisting impairment that has been definitely ascertained must be deducted from the total, unapportioned whole-person impairment to calculate the amount of the claimant's Permanent Partial Disability award.

Syl Pt. 2, Logan-Mingo Area Mental Health, Inc. v. Lester, 902 S.E.2d 768, 769 (W. Va. 06/10/2024).

This opinion has significant impact on workers’ compensation claims when the claimant has been granted prior awards, and emphasizes a stronger weight on those previous awards.

Duff v. Kanawha County Comm’n, No. 23-43, 2024 WL 1715166 (W. Va. 04/22/2024)

The West Virginia Supreme Court of Appeals handed down another opinion with significant impact on claims involving the apportionment of preexisting impairment from prior injuries. In Duff, the Court adopted a stricter definition of “definitely ascertainable” as it appears in West Virginia Code § 23-4-9b, resulting in a shifting of the burden of proof to the employer when asserting the existence of prior impairments.

After Duff was injured on the job, he was granted a 13% permanent partial disability award. This was based upon a medical report by Dr. Prasadarao Mukkamala calculating 25% whole-person impairment in the lumbar spine with 12% apportioned to preexisting conditions arising from a long history of back problems in the lumbar and thoracic spine. This award was affirmed by the Workers’ Compensation Board of Review (BOR), and the West Virginia Intermediate Court of Appeals (ICA).

The Supreme Court of Appeals reviewed the findings of three doctors who examined Duff with an eye on the depth of analysis regarding any preexisting conditions and any resulting apportionment. In order to examine the reports, the Court felt it necessary to define the term “definitely ascertainable” in the applicable governing statute W. Va. Code § 23-4-9b which reads as follows:

Where an employee has a definitely ascertainable impairment resulting from an occupational or a nonoccupational injury, disease or any other cause, whether or not disabling, and the employee thereafter receives an injury in the course of and resulting from his or her employment, unless the subsequent injury results in total permanent disability within the meaning of section one, article three of this chapter, the prior injury, and the effect of the prior injury, and an aggravation, shall not be taken into consideration in fixing the amount of compensation allowed by reason of the subsequent injury. Compensation shall be awarded only in the amount that would have been allowable had the employee not had the preexisting impairment. Nothing in this section requires that the degree of the preexisting impairment be definitely ascertained or rated prior to the injury received in the course of and resulting from the employee's employment or that benefits must have been granted or paid for the preexisting impairment. The degree of the preexisting impairment may be established at any time by competent medical or other evidence. Notwithstanding the foregoing provisions of this section, if the definitely ascertainable preexisting impairment resulted from an injury or disease previously held compensable and the impairment had not been rated, benefits for the impairment shall be payable to the claimant by or charged to the employer in whose employ the injury or disease occurred. The employee shall also receive the difference, if any, in the benefit rate applicable in the more recent claim and the prior claim.

W. Va. Code § 23-4-9b (emphasis added).

The Court read the term “definitely ascertainable” to require a medical expert to offer thorough justification for a conclusion that the claimant had a preexisting condition that warranted apportionment, with the AMA Guides offering the appropriate method of calculation. The Court also read this statute to shift burden to the employer to prove apportionment is necessary in any given case, as seen in Syllabus Point Six:

Under West Virginia Code § 23-4-9b (2003), the employer has the burden of proving apportionment is warranted in a workers’ compensation case. This requires the employer to prove the claimant “has a definitely ascertainable impairment resulting from” a preexisting condition(s). This requires that employer prove that the preexisting condition(s) contributed to the claimant's overall impairment after the compensable injury and prove the degree of impairment attributable to the claimant's preexisting condition(s).

Syl. Pt. 6, Duff v. Kanawha County Commission 2024 WL 1715166 (W. Va. 04/22/2024).

With the burden shifted to the employer to prove that apportionment is necessary, the Court looked to evidence presented by the parties’ respective medical experts. Dr. Mukkamala’s report was seen to have offered little reasoning in his conclusion that Duff’s preexisting conditions justified a 12% apportionment. Dr. Bruce Guberman, who performed an examination on behalf of the claimant, also found that Duff had a whole-person impairment of 25%. However, he offered more justification in his report to come to his conclusion that apportionment was not necessary. Dr. David Soulsby also gave a report that apportioned 12% impairment to preexisting conditions, but the report was found to be inadmissible because it lacked a mandatory lower back examination form. Under this new definition of “definitely ascertainable,” the Court held that Dr. Mukkamala’s report did not present enough proof showing that Duff had a definitely ascertainable prior impairment or a proven degree of impairment that would justify apportionment.

In reversing the BOR and ICA, the Court accepted the reasoning of Dr. Guberman and remanded the case to the BOR to grant a PPD award of 25%. It was determined that since neither of the parties requested the Court to remand to the BOR to rehear the claim in accordance with this new standard, the Court declined to do so, determining the final resolution of the issue on its own accord.

In his separate opinion concurring, in part, and dissenting, in part, Chief Justice Armstead disagreed with the shifting of the burden of proof to the employer, likening it to a treatment as an affirmative defense. He found the Majority’s opinion at odds with prior West Virginia case law requiring the employee to prove his or her claim by “proper and satisfactory proof.” Casdorph v. W. Va. Office Ins. Comm'r, 225 W. Va. 94, 99, 690 S.E.2d 102, 107 (2009). Chief Justice Armstead would have affirmed the rulings of both the BOR and ICA, allowing the apportionment of the prior injury.

Justice Bunn concurred in part and dissented in part. She disagreed with the majority’s handling of remand. She wrote that the parties should not be held to findings of fact on appeal under a new standard without being given the chance to present evidence in accordance with that standard.

The case is a significant change in the way apportionment of preexisting impairment is proven. Greater certainty is now required on behalf of the employer to overcome a presumption that the claimant’s impairment is the result of the injuries that brought rise to the claim. This can be very difficult when claimants are not examined for the necessary impairment ratings under the AMA Guides when the prior injuries did not occur in the context of a workers’ compensation claim. The Supreme Court refused a petition for reconsideration, and employers will have to adapt to this new interpretation.

Compensability

In the fall term 2023, the West Virginia Supreme Court of Appeals discussed the “increased risk” test to analyze compensability of a fall down a set of stairs and found the employee’s act of descending a short staircase did not increase his risk of injury and affirmed the rejection of the claim. Hood v. Lincare Holdings, Inc., 21-0754, 894 S.E.2d 890 (W. Va. Nov 08, 2023).

In Hood v. Lincare Holdings, Incthe Court ruled that the fall was not compensable because the employee was injured while employed but not as a result of his employment. Justice Walker succinctly described the facts of the case:

“While descending a short set of stairs from a customer's porch after making a delivery for his employer, Robert Hood felt a “pop” and pain in his right knee. He was later diagnosed with a right knee sprain. Mr. Hood did not slip, trip, or fall, and he was not carrying anything. The West Virginia Workers’ Compensation Board of Review affirmed previous rulings rejecting the claim, and Mr. Hood appeals. Even though Mr. Hood was injured while working, he failed to show that his work caused the injury. We affirm.”

Hood v. Lincare Holdings, Inc., 894 S.E.2d 890, 893 (W.Va., 2023).

The Court explored the jurisprudence in West Virginia and noted the cases and commentaries on this topic in Arthur Larson, Lex K. Larson, Thomas A. Robinson, Larson's Workers’ Compensation (Rev. Ed. 2023)). In Syllabus Pt 4, the Court held: “In the context of workers' compensation law, there are four types of injury-causing risks commonly faced by an employee at work: (1) risks directly associated with employment; (2) risks personal to the claimant; (3) mixed risks; and (4) neutral risks.” In Syllabus Pt 5, the Court held: “The factfinder may use the increased-risk test when deciding whether an employee sustained a compensable injury under West Virginia Code § 23-4-1(a) (2018), in cases where the injury occurred while the employee was engaged in a neutral risk activity. Under the increased-risk test, even if the risk faced by the employee is not qualitatively peculiar to the employment, the injury may be compensable if he faced an increased quantity of a risk.”

Applying these principles to the facts at hand, the Court looked to the “increased risk” test and found the employee’s act of descending a short staircase did not increase his risk of injury and affirmed the rejection of the claim. Hood v. Lincare Holdings, Inc., 894 S.E.2d 890, 895 (W.Va., 2023).

Permanent Partial Disability in Occupational Pneumoconiosis Cases – Lung Transplant

Rockspring Development, Inc. v. Brown, No. 22-0135, 902 S.E.2d 785 (06/11/2024)

In Rockspring, the Court affirmed the Workers’ Compensation Board of Review’s decision affirming Brown's additional 20% PPD award for occupational pneumoconiosis (OP) impairment. Brown contracted OP based upon his coal dust exposure as an underground coal miner. In August 2016, the claims administrator granted him a 30% PPD award based upon his OP. Brown’s pulmonary function study caused the interpreting physician to diagnose him with a severe obstructive ventilatory defect, a mild restrictive ventilatory defect, and a moderate gas transfer defect. The study demonstrated that his “flow-volume loop pattern [wa]s consistent with chronic obstructive pulmonary disease.” Because the results indicated that his OP had worsened, Brown subsequently requested that his PPD claim be reopened. The claims administrator referred him to the OP Board for evaluation.

Members of the OP Board examined Brown and relevant medical records. The OP Board noted the previously diagnosis of asthma and chronic obstructive pulmonary disease in 2015, and that he was treated for pneumonia in 2017. Brown reported to the OP Board he was on the lung transplant list for several years due to progressive massive fibrosis. The OP Board ultimately determined Brown’s condition had worsened to progressive massive pulmonary fibrosis. The OP Board further relied on the October 2017 Vanderbilt pulmonary function testing, which demonstrated significant impairment. Ultimately, the OP Board concluded sufficient evidence justified an additional 20% impairment rating the diagnosis of OP, for a total of 50% when combined with the previous 30% impairment.

On December 6, 2018, the claims administrator granted Mr. Brown an additional 20% PPD award. Rockspring protested this order to the Office of Judges. During the pendency of the protest proceedings, Brown received a bilateral lung transplant on May 3, 2020. Following the surgery, Brown submitted to a pulmonary function study at Vanderbilt on August 3, 2020. The interpreting physician found no obstruction present in Brown's lungs. Because the study occurred after Rockspring's evidentiary development deadline, Rockspring moved the Office of Judges to admit the medical records regarding Brown's lung transplant and subsequent testing into evidence. The Office of Judges granted the motion.

As Justice Bunn wrote in her decision, the lower tribunals were faced with “a rare set of factual circumstances”. Rockspring Development, Inc. v. Brown, 902 S.E.2d 785, 791. The Court found that the Workers' Compensation Board of Review did not clearly err in determining that Brown was entitled to a 50% PPD award for his OP impairment following bilateral lung transplant, although certain medical documentation indicated that Brown’s pulmonary function was normal following transplant, and the OP Board used pre-transplant pulmonary function testing to determine his impairment. Members of the OP Board provided testimony before the Office of Judges that support its decision to use the pre-transplant pulmonary function testing to determine Brown's impairment, including that Brown clinically “still suffers” and that, while he had no discernable pulmonary function impairment due to the transplant surgery, he faces other medical issues due to the transplant and has a shortened life expectancy.

The Court concluded:

“There was undisputed evidence in the record below to demonstrate that Mr. Brown contracted OP and suffered a resulting measurable impairment for many years. In the absence of statutory guidance on whether and how a transplant surgery that occurs during the pendency of the claim impacts an impairment rating, we simply cannot conclude that the Board of Review erred, particularly in light of the deference they are afforded.”

Rockspring Development, Inc. v. Brown, 902 S.E.2d 785, 792 (W.Va., 2024).

Collateral Estoppel

Ruble v. Rust-Oleum Corporation, No. 22-0329, 902 S.E.2d 873 (06/12/ 2024)

The West Virginia Supreme Court of Appeals determined that the plaintiff’s workers’ compensation claim did not preclude a related civil claim from being brought under collateral estoppel. Ruble v. Rust-Oleum Corp., No. 22-0329, 902 S.E.2d 873 (06/12/ 2024). Justice Hutchison summarized the issue presented to the Court: “Specifically, we consider whether collateral estoppel (sometimes called “issue preclusion”) applies such that a finding in a West Virginia workers’ compensation decision may be used to preclude litigation of that issue against a third party in a West Virginia circuit court." Id. at 1.

In Ruble, the plaintiff sued his past and current employers, along with two chemical suppliers, claiming injury suffered at work after breathing in toxic fumes. Id. at 2-3. Contemporaneously, the plaintiff filed a workers’ compensation claim against his most recent employers and chemical suppliers in circuit court. Id. at 3. The administrative claim was denied, for which the plaintiff appealed and was again denied before the West Virginia Workers’ Office of Judges (“the OOJ”). Id. at 3-4. It important to note that there was no hearing before the OOJ, and the only evidence presented included the proffered record from the administrative claim. Id. at 3. The OOJ found that the plaintiff did prove, by a preponderance of the evidence, that he developed an occupational disease “in the course of and as a result of employment.” Id. at 4.   

The plaintiff appealed to the West Virginia Workers’ Compensation Board of Review (“the Board”), and was also denied. Id. 3-4. As a result, the plaintiff voluntarily dismissed their claim against both employers. Id. at 5. The chemical suppliers also moved to have the claims against them dismissed, under the doctrine of collateral estoppel, for which the court granted. Id. at 5-6. The plaintiff appealed the decision of the circuit court. Id. at 6.

Collateral estoppel is a principle that completely bars a claim from being brought if certain elements are met. Id. at 7. The only element that the Court questioned states “the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.” Id. at 7; Syl pt. 1, State v. Miller, 194 W. Va. 3, 6, 459 S.E.2d 114, 117 (1995). The Court analyzed the processes during the workers’ compensation proceedings and found that they were significantly different from the claims in circuit court. Id. Specifically, citing differences in the procedural and statutory rules in the collection, presentation, and development of discovery and evidence. Id. at 9-13. The Court found that it hindered the plaintiff’s ability to prove the claim itself and the subsequent damages. Id. The smaller award amounts allowed in workers’ compensation claims limit workers’ compensation attorney’s from spending large amounts to fully prepare claims against defendants were also noted. Id. at 13-14. For those reasons, the Court found that the plaintiff did not have a “full and fair opportunity to litigate[ ]” his claims before the workers’ compensation tribunals. See id., at 14. The Court mentioned:

“Upholding the circuit court’s dismissal would deter employees from seeking workers’ compensation until any third-party claims have been developed and resolved. . . contrary to the Legislature’s command that employees injured on the job by a third-party are allowed to purse both a workers’ compensation claim and a claim against the third party.”

Id.

Justice Armstead dissented, believing that it “unjustly call[s] into question the applicability of collateral estoppel in relation to a myriad of other administrative proceedings and agencies.” Ruble, No. 22-0329, 14-16 (W. Va. Supreme Court, June 12, 2024) (Armstead, C.J., dissenting). Finding that under the facts, the plaintiff received a “second bite at the apple” to prove causation against a third party, which the doctrine of collateral estoppel and West Virginia case law has prohibited. Id. at 1. See Steel of West Virginia, Inc. v. West Virginia Office of the Insurance Commissioner, No. 11-1607 (W. Va. Supreme Court, November 16, 2012)(memorandum decision). 

For any questions, please contact:

Dill Battle

Spilman Thomas & Battle, PLLC

hdbattle@spilmanlaw.com

304-340-3823

Several bills of interest 

Senate Bill 597 grants twenty weeks (or 5% permanent partial disability) awards of worker's compensation benefits to claimants with no measurable pulmonary impairment from occupational pneumoconiosis (OP). Additionally, claimants with an x-ray diagnosis of pulmonary massive fibrosis or complicated pneumoconiosis without measurable impairment would be granted a 25% permanent partial disability award. The OIC’s Fiscal Note Memorandum states that the additional benefits are likely to significantly increase the expenses and could cause a deficit for the Worker's Compensation Old Fund and create adverse claims development in the other funds administered by the OIC with exposure to OP claims. The increased benefits are likely to raise private insurance carrier worker's compensation insurance premium rates for employers in industries where exposure to OP exists. Senate Bill 597 is also likely to significantly increase the worker's compensation expense for self-insured employers in the coal industry. As drafted, Senate Bill 597 appears to be retroactive and would effectively restore the presumptive 5% OP award for both past (July 1, 2003 forward) and future OP claims. Additionally, it is unclear if the 5% presumptive award is to be granted in addition to the 25% award for those diagnosed with pulmonary fibrosis or complicated pneumoconiosis, or if those two awards are mutually exclusive.

Senate Bill 286 would extend the time within which a claimant may obtain an evaluation from the Occupational Pneumoconiosis Board. In its Fiscal Note Memorandum, the OIC stated it is unable to estimate the fiscal impact of SB 286. The OIC does not have data regarding any OP claim applicants being denied a hearing before the OP Board due to time limitations exceeding three years or due to the lack of an impairment diagnosis. The OIC believes that SB 286 would increase the expenses of the OIC, but the OIC is unable to quantify the increased expenses accurately at this time. The OIC funds the costs of the OP Board and any increase in the number of examinations undertaken by the OP Board would increase the expense of the OIC.

House Bill 4283 would create a new program and new Fund called the West Virginia Black Lung Program, which would create entitlement benefits and a presumptive award for those benefits for occupational pneumoconiosis. In its Fiscal Note to this proposed bill, the OIC stated it is unable to estimate all of the potential cost to the State for HB 4283. The OIC did note some technical issues with HB 4283. West Virginia Code §23-4D-2 grants the presumptive benefit to anyone who has worked in WV for a period of 10 years during the 15 years immediately preceding the Date of Last Exposure. The language in the proposed bill does not limit the exposure to coal dust, so any type of minute dust particle would appear to qualify. The language in the proposed bill does not limit the benefits to WV residents, but would be available to anyone who has worked in WV for the above specified period of employment. The benefit to be granted is a fixed amount and is to be paid in addition to any state or federal disability award. The bill appears to be retroactive in nature. HB 4283 creates a new general revenue fund, but does not clearly identify who is to administer the Fund. The OIC noted the State Tax Department should be consulted regarding the increased severance taxes and the creation of the new taxes on energy producing activities.

HB 4687 which would repeal the law making prime contractors liable for the failure of subcontractors to obtain workers’ compensation coverage. The OIC’s Fiscal Note predicted HB 4687, if enacted, would have a significant impact on the Uninsured Employers Fund (UEF). Present law provides that if a subcontractor is neither self-insured, nor covered by a workers' compensation insurance policy, then the prime contractor rather than the state's UEF is responsible for payment of statutory workers’ compensation benefits: provided, that receipt of the prime contractor of a certificate of coverage from a subcontractor shall be deemed to relieve the prime contractor of responsibility regarding the subcontractor's workers' compensation coverage. The OIC stated in its Fiscal Note that it has not had to issue an assessment in order to raise funds for the UEF since its creation in 2006. However, in the event that additional funding is needed, the OIC has the statutory authority to issue an assessment to private insurance carriers, which may be passed on to employers through a policy surcharge, as well as to self-insured employers to raise the necessary funding for the UEF.

HB 5244 relates to portable benefit plans for independent contractors. It creates a new State Portable Benefit Fund to provide portable benefit plans that individuals can purchase. A benefit plan would be assigned to an independent contractor and would not be associated with the hiring party. The statute has language that a hiring party can contribute to these plans but the contribution would not be construed as an element of an employment relationship for purposes of determining workers’ compensation coverage.

SB 170 expands coverages related to professional firefighters and a rebuttable presumption to include bladder cancer, mesothelioma, and testicular cancer to join leukemia, lymphoma, and multiple myeloma previously passed by statute. The purpose of this bill is to include three types of cancer for which rebuttable presumption of injury from employment exists for firefighters and provides that the presumption for the three types of cancer expires July 1, 2027, unless extended by the Legislature.

HB 4216 reaffirms and enhances the workers compensation exclusive remedy rule or doctrine and would repeal the deliberate intent statute in its entirety.

For the mining industry members, eight bills not included on the attached Legislative Monitor Report have been introduced to authorize the Office of Miners’ Health Safety and Training (WVMHST) to promulgate legislative rules for a variety of safety issues including substance abuse screening, standards and procedures. The bills were referred to the Judiciary Committee on 1/19/24.

• HB 4090: Authorizing the WVMHST to promulgate a legislative rule relating to safety provisions for clearing crews

• HB 4091: Authorizing the WVMHST to promulgate a legislative rule relating to protective clothing and equipment

• HB 4092: Authorizing the WVMHST to promulgate a legislative rule relating to reporting requirements for independent contractors

• HB 4093: Authorizing the WVMHST to promulgate a legislative rule relating to assessing health and safety violation penalties

• HB 4094: Authorizing the WVMHST to promulgate a legislative rule relating to the application

• HB 4095: Authorizing the WVMHST to promulgate a legislative rule relating to governing the program for the sharing of information between employers

• HB 4096: Authorizing the WVMHST to promulgate a legislative rule relating to substance abuse screening, standards and procedures

• HB 4097: Authorizing the WVMHST to promulgate a legislative rule relating to operating diesel equipment in underground mines in West Virginia

Dill Battle, Executive Secretary

West Virginia Workers’ Compensation Association

www.wvwca.net

o 304-340-3823

m 304-206-1986

dbattle@spilmanlaw.com

West Virginia Supreme Court of Appeals

Statute of Limitations for filing Occupational Pneumoconiosis claim

Argus Energy, LLC v. Marenko, 887 S.E.2d 223, 225–31 (W.Va., 05/01/2023)

http://www.courtswv.gov/supreme-court/docs/spring2023/21-0209-hutchison-p.pdf

In Argus Energy, LLC v. Marenko, 887 S.E.2d 223, 225–31 (W.Va., 2023), the Court affirmed the Board of Review’s finding that Marenko timely filed his application for occupational pneumoconiosis benefits under W. Va. Code § 23-4-15(b) because it was filed within three years from and after a diagnosed impairment due to occupational pneumoconiosis was made known to the claimant by a physician. Relying on the Supreme Court's ruling in Pennington v. West Virginia Office of the Insurance Commissioner, 241 W.Va. 180, 820 S.E.2d 626 (2018), the Court affirmed the Board of Review’s order that specifically found, “'[o]n the Physician's Report of Occupational Pneumoconiosis, the medical provider said [Mr. Marenko's] capacity for work has been impaired by occupational pneumoconiosis.’” Even though the signature on the Physician's Report of Occupational Pneumoconiosis is not legible, the Court found it “undisputed that the Report was signed by someone and the report form was itself entitled ‘Physician's Report of Occupational Pneumoconiosis[.]’ (emphasis added). Since the form in question was a Physician's Report of Occupational Pneumoconiosis, and since Argus submitted no evidence in rebuttal, we do not believe that the [Board of Review] clearly erred in finding that the pertinent requirements of Pennington were satisfied—that Mr. Marenko filed his Occupational Pneumoconiosis claim within three years from and after a diagnosed impairment due to occupational pneumoconiosis was made known to him by a physician.”

Intermediate Court of Appeals of West Virginia

Compensability of Preexisting Conditions

Blackhawk Mining, LLC v. Argabright, ___ S.E.2d ___, 2023 WL 3167476, (W.Va. App., 05/01/2023)

http://www.courtswv.gov/intermediate-court/docs/Spring2023/22-ICA-262-greear.pdf

The ICA continues to wrestle with the questions of the compensability of preexisting conditions and the impact on more recent workplace injury. The ICA analyzed the Supreme Court decisions in Gill v. City of Charleston, 236 W. Va. 737, 783 S.E.2d 857 (2016) and Moore v. ICG Tygart Valley, LLC, 247 W. Va. 292, 879 S.E.2d 779 (2022). When those two cases are read in unison, they do not render preexisting injuries compensable. According to the ICA in Blackhawk Mining, LLC v. Argabright, compensability of preexisting injuries is limited only to discrete new injuries and disabilities that manifest following the compensable injury.

Harris Argabright, an electrician for Blackhawk Mining, was injured at work on February 26, 2021, when he tightened a strap on a speed reducer and felt something pull in his lower back/pelvis. Mr. Argabright sought medical treatment that day and was diagnosed with a lumbar sprain. X-rays revealed no acute abnormality, mild L3-L4 disc space narrowing, mild L5-S1 disc space narrowing, and bilateral facet arthropathy.

Lumbar spine MRI performed several weeks after the injury showed degenerative disc desiccation and suggestion of mild disc bulge at T11-T12, and minimal to mild disc bulges from L2-L3 through L5-S1. Claimant’s treating physician recommended a referral to a pain specialist, Dr. Patel, due to unresolved pain, and noting an increase of pain, a decrease in range of motion, and a worsening symptoms. In an IME performed on May 11, 2021, Dr. Mukkamala diagnosed lumbar sprain superimposed upon preexisting noncompensable degenerative spondyloarthropathy, and found that Mr. Argabright had reached maximum medical improvement. Dr. Mukkamala recommended an 8% whole person impairment and apportioned 5% to preexisting conditions. Dr. Mukkamala also found there was no indication to refer Mr. Argabright for surgery or any other treatment, as there was no objective evidence of radiculopathy and no spinal instability. Based on this report, the claim administrator issued an order dated May 17, 2021, which denied the request for a referral to Dr. Patel.

On June 21, 2021, Dr. Muscari submitted a diagnosis update requesting that “disc bulge L2, L3, L5, S1” be added as compensable conditions in the claim on the basis that the MRI showed multiple disc bulges. The claim administrator denied this request. Evidence submitted by Mr. Argabright included Dr. Muscari’s explanation that the referral to Dr. Patel was necessary because of Mr. Argabright's continuing symptoms and disability. Dr. Muscari also explained Mr. Argabright was able to work his entire adult life as a coal miner prior to this work-related injury and had no previous lumbar pain.

On January 15, 2022, Michael Brooks, M.D., issued an age of injury analysis upon review of the March 9, 2021, MRI. Dr. Brooks opined that the findings on the MRI were consistent with chronic, degenerative disc disease and facet joint arthrosis.

On May 19, 2022, the Office of Judges reversed the claim administrator's orders, found the disc bulges at L2-L3 through L5-S1 to be compensable, and ordered a referral to Dr. Patel. The OOJ reasoned that Mr. Argabright's preexisting disease or condition was asymptomatic prior to the compensable injury, but after that injury, his symptoms appeared and were continuously manifested. The OOJ found that based on the preponderance of the evidence, Mr. Argabright had shown that the disc bulges at L2-3 through L5-S1 should be held compensable, and that the referral to Dr. Patel was medically related and reasonably required. The Board of Review affirmed the OOJ's decision in its October 21, 2022, order. Blackhawk appealed the BOR’s order but Blackhawk's appeal was limited solely to the issue of compensability of the disc bulges; it did not appeal the referral to Dr. Patel.

On appeal, Blackhawk asserted the BOR committed clear legal error determining that Mr. Argabright's disc bulges at L2-L3 through L5-S1 were compensable. Blackhawk argues that the preponderance of the evidence establishes these conditions were chronic and preexisting and, while aggravated or exacerbated, were not discrete new injuries, and thus, not compensable. Mr. Argabright response argument was twofold. First, he argues that there was a lack of evidence in the record to show the bulging discs existed prior to his compensable injury. Second, he argues compensability under Moore v. ICG Tygart Valley, LLC, 247 W. Va. 292, 879 S.E.2d 779 (2022) based on the manifestation of his symptoms after the compensable injury.

The ICA first addressed the sufficiency of the evidence to support a determination that Mr. Argabright's disc bulges were caused by the compensable injury. The March 9, 2021, MRI report revealed degenerative disc desiccation, as well as minimal to mild disc bulges, and the report does not indicate that the injuries were of a traumatic nature. Dr. Mukkamala, after completing an IME of Mr. Argabright and reviewing relevant records, diagnosed Mr. Argabright with lumbar sprain superimposed upon preexisting degenerative spondyloarthropathy. Dr. Mukkamala found that while the lumbar sprain was caused by the compensable injury, the degenerative condition was preexisting. Dr. Brooks authored an age of injury analysis and determined that Mr. Argabright suffered from chronic degenerative disc disease and chronic facet joint arthrosis from L2-3 through L5-S1. The ICA found that the MRI and the reports of Drs. Mukkamala and Brooks support a conclusion that the disc bulges were preexisting.

In contrast, the ICA found minimal justification to support Dr. Muscari’s request that the disc bulges be made compensable as caused by the compensable injury. The ICA found that to the extent that the Board of Review's order finds that the disc bulges were caused by the compensable injury, that finding is clearly wrong.

Next, Mr. Argabright argued that because his preexisting condition was asymptomatic until the compensable injury, his preexisting disc bulges should be found compensable under the rebuttable presumption announced in Moore. The ICA disagreed and found Mr. Agrabright's argument failed  to consider the Moore presumption in unison with the Supreme Court of Appeals of West Virginia's (“SCAWV”) ruling in Gill v. City of Charleston, 236 W. Va. 737, 783 S.E.2d 857 (2016), which Moore explicitly reaffirmed:

“[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.” Syl. Pt. 3, Gill v. City of Charleston, 236 W. Va. 737, 783 S.E.2d 857 (2016).

Syl. Pt. 4, Moore, 247 W. Va. 292, 879 S.E.2d 779 (2022). The Moore Court then expanded on Gill, holding:

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 other facts of the case, raises a natural inference of causation. This presumption is not conclusive; it may be rebutted by the employer.

Syl. Pt. 5, 247 W. Va. 292, 879 S.E. 2d 779 (2022).

The ICA found that Gill unambiguously held that a discrete new injury may be compensable when it arises from an aggravation of a preexisting injury. The preexisting condition itself does not become compensable, only the discrete new injury. Moore reaffirmed and expanded on the holding in Gill and therefore the holdings in both cases must be considered together. When read in unison, Gill and Moore do not render preexisting injuries compensable. Compensability is limited only to discrete new injuries and disabilities that manifest following the compensable injury.

In the case before it, the ICA found that the Board of Review only addressed syllabus point five of Moore and determined the compensability of Mr. Argabright's preexisting disc bulges based on the manifestation of his symptoms following the compensable injury. Because the Board of Review did not consider Moore and Gill together, the ICA reversed the Board of Review's order, in part, and found that it erred in summarily concluding that Mr. Argabright's preexisting disc bulges were compensable.

Even though the disc bulges are not compensable under this analysis, the treatment of the newly symptomatic disability is appropriate, according to the ICA. In Moore, the SCAWV found cervical radiculopathy as a compensable condition, not the preexisting cervical degenerative disc disease that was asymptomatic prior to the compensable injury. It reasoned that the evidence showed the compensable injury caused Mr. Moore to develop cervical radiculopathy, a new distinct injury. In the case before it, the ICA found that Mr. Argabright's preexisting discs and degenerative disc desiccation were asymptomatic prior to the compensable injury. Following the compensable injury, Mr. Argabright developed pain in the areas affected by the preexisting conditions. The ICA found that the treatment of that pain is presumed to flow from the compensable injury, not the preexisting condition. In this matter, Blackhawk did not rebut the presumption, nor did it contest the order for referral to Dr. Patel on appeal. Accordingly, the ICA affirmed the Board of Review's order, in part, with respect to the referral to Dr. Patel at the pain clinic. The ICA reversed, in part, and affirmed, in part, the Board of Review's October 21, 2022, order.

Compensability – Injury Not Resulting From Employment

Kittle v. ACNR Resources, Inc., No. 22-ICA-204, 2023 WL 3167482 (W.Va. App. 05/01/2023)

http://www.courtswv.gov/intermediate-court/docs/Spring2023/22-ICA-204-greear.pdf

Mr. Kittle was injured on September 29, 2021, while employed by ACNR Resources, Inc., (“ACNR”). Mr. Kittle was relocating fans in ACNR's shower house when he felt a popping sensation in his foot followed by immediate foot pain and difficulty walking. Mr. Kittle did not actually have a fan in his hand at the time of injury. Mr. Kittle does not allege that there were any defects in the floor of ACNR's shower house. Mr. Kittle promptly reported his injury to ACNR's safety personnel and was advised to seek medical treatment at the emergency room. However, Mr. Kittle attempted to continue to work despite his injury. On September 30, 2021, Mr. Kittle sought medical treatment at MedExpress. MedExpress ordered non-weight bearing x-rays, which showed no fracture in Mr. Kittle's foot but did show degenerative changes. Mr. Kittle was diagnosed with a left foot sprain. On October 7, 2021, the claim administrator denied Mr. Kittle's claim on the basis that the injury did not result from his employment with ACNR. Mr. Kittle protested this order.

On appeal, Mr. Kittle asserted that the BOR committed clear legal error in its determination that his foot injury was not a result of his employment. Mr. Kittle argues that he was moving large fans from one part of the ACNR shower house to another, a duty of his employment, when his injury occurred, and that walking is a necessary required function of his duties.  ACNR argues in response that the BOR did not err in finding that Mr. Kittle was not injured in a manner “resulting from this employment” as Mr. Kittle was “simply walking.”

On October 19, 2021, Mr. Kittle was examined by Daniel Fijalkowski, M.D., a podiatrist. Dr. Fijalkowski ordered weightbearing x-rays, which showed a fracture of the fourth metatarsal of Mr. Kittle's left foot. Dr. Fijalkowski diagnosed Mr. Kittle with a fracture, fitted him with a boot to immobilize his foot, and opined that he was unable to work until he could be medically cleared.

On April 1, 2022, the Office of Judges affirmed the claim administrator's order rejecting Mr. Kittle's claim, reasoning that Mr. Kittle's injury was not a result of employment. On September 27, 2022, the Board of Review affirmed the OOJ's order, and Mr. Kittle filed an appeal.

The ICA held that in order to satisfy the direct causal connection required in workers’ compensation claims, a claimant has the burden of establishing, by a preponderance of the evidence, that the injury complained of was caused by or contributed to some condition or aspect of employment that created an increased risk of injury. Failure to establish an employment specific element that increased the risk of injury will bar recovery. 

The ICA found that it is undisputed that Mr. Kittle did not have a fan in his hand at the time of injury and did not allege any defects in the floor of the shower house. Had Mr. Kittle been carrying an industrial fan at the time of his injury, then he may have been able to meet his burden. Similarly, if Mr. Kittle had been walking down a steep incline or on an uneven surface, a different result may have been compelled. Mr. Kittle's injury clearly occurred during an activity (walking) that did not present an increased risk of injury. Thus, the injury in question was received “in the course of” Mr. Kittle's employment, but was not “resulting from” that employment.

Compensability – Injury Resulted After Deviation from Employment

West Virginia Heating & Plumbing Company v. Carroll, No. 22-ICA-167, 2023 WL 3579092 (W.Va. App. 05/22/2023)

http://www.courtswv.gov/intermediate-court/docs/Spring2023/22-ICA-167_so.pdf

Claimant Tyler J. Carroll was a passenger in a company van driven by his supervisor Mr. Bragg. They were employees of West Virginia Heating and Plumbing Company (“WVHP”), and were returning to Charleston from a job assignment in Pittsburgh. The van stopped at the scene of an accident on Interstate 79. Mr. Carroll suffered serious injuries after exiting the van in an attempt to render aid to the driver of a truck that had just been involved in the accident. WVHP appealed the decision of the Office of Judges which reversed the claim administrator's order rejecting Mr. Carroll's application for benefits. The OOJ decision held Mr. Carroll's claim compensable, stating that his injuries were sustained in the course of and as a result of his employment. WVHP argued on appeal that the OOJ's decision was clearly wrong because the evidence shows Mr. Carroll's injury did not occur as a result of his employment. Specifically, WVHP argued Mr. Carroll was not injured as a result of his employment because prior to his injury, he left and deviated from his duties of employment when he exited the company van and crossed I-79 to render aid to a driver of a truck that had just crashed. WVHP argues that Mr. Carroll was injured as a result of this deviation from his employment, and therefore, Mr. Carroll was not injured as a result of his employment.

              On appeal, the ICA analyzed WHCP’s assignments of error with respect to the OOJ’s findings on the legal principles of the “Going and Coming Rule”, Erin’s Law, and the Good Samaritan and positional risk doctrines. The ICA reversed and remanded the OOJ’s decision to the Board of Review for a proper analysis under the applicable West Virginia law in accordance with the ICA’s opinion.

After a lengthy discussion of the “well established” jurisprudence of the “going and coming rule” in West Virginia, the ICA acknowledged the parties conceded Mr. Carroll was in the course of employment at the time of his injury. The ICA found the issues of the “going and coming rule” not dispositive of the ultimate issue in the case whether Mr. Carroll was injured as a result of his employment, and therefore the ICA did not further address the rule.

The ICA examined the OOJ’s interpretation of West Virginia Code §§ 17C-4-1(a) and 17C-4-3(b), known as Erin’s Law. The OOJ found that Mr. Carroll was legally obligated to stop and render aid under the statute. Erin’s Law requires individuals who are “involved in a crash” to stay at the scene, provide information, and render “reasonable assistance” to an injured person “if physically able to do so.” §§ 17C-4-1(a), 17C-4-3(b). In regard to Erin's Law, the ICA found that Carroll’s need to take evasive action to avoid the out of control truck did not make him “involved in a crash” such that he had a statutory duty to remain at the scene and render aid placing his rescue within the scope of employment. The ICA found Carroll not to be involved in the accident since he was able to avoid involvement in the accident, and there is no evidence that he caused the accident. The ICA found the OOJ erred in finding that Carroll had a statutory duty under W. Va. Code § 17C-4-1(a) and §17C-4-3(b) to undertake rescue.

The ICA noted that applying the Good Samaritan, rescue, and the positional risk doctrines in the workers’ compensation context is a matter of first impression in West Virginia. The ICA’s opinion relied on Professor Larson’s discussion of these topics and noted:

Each legal doctrine is understood as a separate concept in Larson's treatise on workers’ compensation. See 3 Arthur Larson & Lex K. Larson, Larson's Workers’ Compensation Law § 27.02[2][a], § 28.01[1] (2022).

West Virginia Heating & Plumbing Company v. Carroll, 2023 WL 3579092, at *6 (W.Va.App., 2023).

With respect to the Good Samaritan doctrine, the ICA noted “Larson discusses the Good Samaritan doctrine in the context of employees performing small favors and generating goodwill among the public; however, the act must still confer a benefit of some kind to the employer. [Larson's Workers’ Compensation Law] § 27.02[2][a].” (Footnote omitted.) The ICA disagreed with the OOJ that WVHP benefitted by Carroll’s actions in rescuing the truck driver because he had a statutory duty to stop and render aid. Because Erin’s Law does not apply, Carroll’s actions did not benefit the employer according to the ICA. Also, the benefit of Carroll returning WVHP’s tools in the company van to Charleston has no connection with leaving the work van to render aid on a public road. Therefore, the ICA found the OOJ erred in concluding Claimant was injured in the course of and resulting from his employment.

In its analysis of the positional risk doctrine, the ICA noted it is an extension of the traditional rescue doctrine but does not require that an employee’s act confer a benefit to the employer, citing Larson § 28.02[3]. In the case before the ICA, the ICA found that the requirements and performance of Carroll’s employment thrust him into contact with an emergency situation. His employment brought him to a place where it was probable that he and his co-worker and driver of the van would have a natural reaction to help the injured truck driver. However, in the absence of any West Virginia legislation or controlling authority by the West Virginia Supreme Court providing for the adoption of the positional risk doctrine in a workers’ compensation setting, the OOJ erred in applying it to this case. The ICA was not prepared on its own to adopt the positional risk doctrine in workers’ compensation law. The ICA found that based on the applicable law in West Virginia, the OOJ committed error applying a doctrine not yet recognized in West Virginia workers’ compensation jurisprudence:

Although Mr. Carroll's acts are clearly a laudable, selfless response, this Court is not prepared on its own to adopt the positional risk doctrine in workers’ compensation law. Based on the applicable law before the OOJ, it was error to apply a doctrine not yet recognized in West Virginia's workers’ compensation jurisprudence.

West Virginia Heating & Plumbing Company v. Carroll, 2023 WL 3579092, at *7 (W.Va.App., 2023).

The ICA concluded that the Legislature or the West Virginia Supreme Court of Appeals must recognize the positional risk doctrine. Thus, absent such law, Carroll’s injuries are not compensable because they did not occur as a result of his employment under the doctrines discussed in the ICA’s opinion. The ICA found that a question remains as to why Carroll temporarily stepped outside his employment when he exited the company van on the interstate to render aid to a driver injured in an accident in which he was not involved, whether any company policies or procedures caused him to do so, or whether he reacted to the statements and/or actions of his supervisor, which amount to express or implied authorization to engage in such conduct. The ICA remanded the case for consideration by the Board of Review of evidence related to these issues.

Payment of Permanent Partial Disability Benefits

Thompson v. Western Construction, Inc., ___ W. Va. ___, 889 S.E.2d 300 (W.Va. App. 6/15/2023)

http://www.courtswv.gov/intermediate-court/docs/Spring2023/23-ICA-26%20Signed%20Opinion.pdf

In Thompson v. Western Construction, Inc., ___ W. Va. ___, 889 S.E.2d 300 (W.Va. App. 6/15/2023), the ICA addressed the question of whether a claimant was entitled to compensation under West Virginia Code § 23-4-6(e)(2) (2005) at the rate of six weeks for each percent of disability because he was not employed by Western Construction when he was released to return to work. The claim administrator granted Mr. Thompson a 7% permanent partial disability award, and the 7% permanent partial disability award was paid out at a benefit rate of four weeks for each percent of disability pursuant to West Virginia Code § 23-4-6(e)(1). The claim administrator based its decision Mr. Thompson was entitled to compensation at the rate of four weeks for each percent of disability because he was terminated from his job in January of 2020, and was not a current employee at the time the award was paid because Mr. Thompson was not released to return to work until September 14, 2021. The Board of Review affirmed the decision and Mr. Thompson appealed. The Court of Appeals held that Mr. Thompson did not have to be a current employee to recover six weeks of compensation for each percent of disability.

West Virginia Code § 23-4-6 states that:

Where compensation is due an employee under the provisions of this chapter for personal injury, the compensation shall be as provided in the following schedule:

. . . .

(e)(1) For all awards made on or after the effective date of the amendment and reenactment of this section during the year two thousand three, if the injury causes permanent disability less than permanent total disability, the percentage of disability to total disability shall be determined and the award computed on the basis of four weeks' compensation for each percent of disability. . . .

(2) If a claimant is released by his or her treating physician to return to work at the job he or she held before the occupational injury occurred and if the claimant's preinjury employer does not offer the preinjury job or a comparable job to the employee when a position is available to be offered, the award for the percentage of partial disability shall be computed on the basis of six weeks of compensation for each percent of disability.

West Virginia Code § 23-4-6(e)(1) requires a four-week benefit rate for each percent of disability. Under West Virginia Code § 23-4-6(e)(2), the benefit rate increases to six weeks when the employer fails to reinstate the employee in his or her preinjury job or offer a similar position. Mr. Thompson claimed the 7% permanent partial disability should have been paid at a benefit rate of six weeks, as opposed to four weeks, because Western Construction did not offer a preinjury position or a comparable position.

The ICA found that the definition of “employees” under § 23-4-6(e)(2) is not limited to current employees, and Mr. Thompson’s permanent partial disability award was to be paid at the six-week benefit rate rather than the four-week benefit rate.

W. Va. Code § 23-4-6 uses the word “employee,” but it is not limited to claimants who are currently employed based on the language of the statute. The word “shall” in § 23-4-6(e)(2) is used to afford a mandatory connotation that the claimant must be paid at the six week rate if the employer did not offer a preinjury job or a similar position. Additionally, the statute does not state that the claimant must be a current employee to be entitled to the six-week benefit rate – the relevant factor is that the claimant was an employee at the time of the injury. W. Va. Code § 23-4-6(e)(2) only requires (1) a claimant; (2) be released by a physician to return to work at the job he held before the occupational injury occurred, and (3) that the employer does not reinstate the preinjury job or a comparable position. All conditions were met in this case.

The ICA found that a claimant does not have to be a current employee under W. Va. Code § 23-4-6(e)(2) because the statute does not expressly state this requirement. The ICA reversed the Board of Review’s order and instructed Mr. Thompson to be paid his permanent partial disability award at the six-week benefit rate.

Article prepared by:

H. Dill Battle III, Esquire

Spilman Thomas & Battle, PLLC

300 Kanawha Blvd, East

Charleston, West Virginia 25301

304-340-3800

hdbattle@spilmanlaw.com

The West Virginia Workers' Compensation Board of Review has implemented a new procedure for a claimant to file a protest to a claim administrator's order that does not include a Jurisdictional Claim Number. Claim administrators who are not following claim reporting procedures will be tracked by the Offices of the Insurance Commissioner. 

The Board of Review has changed the process for submitting a protest to a claim administrator's order that does not include the JCN. Claimants and their attorneys will no longer be required to call the claim administrator or the OIC's Claims Services in an effort to track down a JCN. Since a protest cannot be submitted on the Board of Review's portal without a JCN, please follow this process if you are submitting a protest to a claim administrator's order that does not include the JCN:

· Fax or mail the protest to the Board of Review (PO Box 2628, Charleston, WV  25329; 304-558-1322)

· A Temporary JCN will be assigned and the protest will be acknowledged.

· The Board will issue an order requiring the claim administrator to provide the JCN to the Board and the parties, in writing, within 15 calendar days from the date of the Board's order.  A copy of the Board's order will be provided to the OIC in order to track claim administrators who are failing to follow reporting procedures.

The Board of Review can be contacted by calling Beth Suter at 304-414-1027.

04/04/2023

West Virginia News: Employer and Co-Employee Immunity, COVID-19 Compensability, and Intentional Tort Damages Cap

West Virginia Supreme Court of Appeals

http://www.courtswv.gov/supreme-court/docs/spring2023/21-0841-hutchison-p.pdf

In Precision Pipeline, the Supreme Court reinforced what it termed as “sweeping” immunity from common law tort liability provided to employers by the workers’ compensation statute. The workers’ compensation act shields an insured employer from liability outside the workers’ compensation system for workplace injuries. Similarly, an employee of an insured employer who negligently injures a fellow employee during the course of their employment is not liable to respond in damages to the injured fellow employee for the personal injuries caused.

Mr. Weese was injured in course and scope of his employment with Precision Pipeline and brought claims of negligent hiring, retention, and supervision against his employer with respect to co-employees, negligence claims against the employer and co-employees, a vicarious liability claim against his employer, and a claim for punitive damages. The Court reversed the circuit court’s order denying a motion to dismiss because workers’ compensation immunity bars the employee’s claims.

Weese severely injured his left leg at work and was treated at the accident scene by an on-site EMT Vanessa Stromberg who also was employed by Precision. Weese argued the EMT was not licensed and “provided no actual medical assistance or intervention on site;” and that “no ambulance or outside medical assistance” was summoned in violation of West Virginia law and public policy to treat medical emergencies. Weese alleged that he has been unable to work and has suffered permanent injuries as a direct result of Precision's negligence “in seeking acute medical care for [him]” and “the lack of competent immediate [sic] medical care.” Weese also alleged in his complaint that “supervisors and other Precision Pipeline employees received monetary bonuses based in part on workplace safety and limiting reportable workplace injuries[,]” and that petitioners “conspired to provide the bare minimum emergency medical response to [respondent] to ensure that safety bonuses were not affected.” Because Weese’s injury occurred in the course and scope of his employment, he received workers’ compensation benefits for his injury. He also claimed negligent hiring, retention, and supervision against Precision with respect to a co-employee superintendent and the co-employee EMT (Count 1); negligence against Precision Pipeline and the two co-employees (Count 2); vicarious liability against Precision (Count 3); and punitive damages (Count 4). The defendants moved to dismiss asserting workers’ compensation immunity under W. Va. Code § 23-2-6 (2003) and § 23-2-6a (1949). 

The Court described workers’ compensation immunity from common law tort liability as sweeping:

The Legislature intended for W.Va. Code § 23-2-6 (1991) to provide qualifying employers sweeping immunity from common-law tort liability for negligently inflicted injuries. As this Court succinctly stated in State ex rel. Frazier v. Hrko, 203 W.Va. 652, 659, 510 S.E.2d 486, 493 (1998), ‘[w]hen an employer subscribes to and pays premiums into the Fund, and complies with all other requirements of the Act, the employer is entitled to immunity for any injury occurring to an employee and ‘shall not be liable to respond in damages at common law or by statute.’ W. Va. Code § 23–2–6 [1991].

Precision Pipeline, LLC v. Weese, 2023 WL 2365328, at *3 (quoting Bias v. E. Assoc'd. Coal Corp., 220 W. Va. 190, 194, 640 S.E.2d 540, 544 (2006)).

The Court noted that the workers’ compensation immunity extends to negligent co-workers:

The sweeping immunity afforded to employers by West Virginia Code § 23-2-6 extends to acts of fellow employees by virtue of West Virginia Code § 23-2-6a, which provides: ‘The immunity from liability set out in the preceding section shall extend to every officer, manager, agent, representative or employee of such employer when he is acting in furtherance of the employer's business and does not inflict an injury with deliberate intention.’

Precision Pipeline, LLC v. Weese, 2023 WL 2365328, at *3.

The Court found it was undisputed Weese filed for workers’ compensation benefits for his injury, and Weese’s receipt of workers’ compensation benefits “. . . necessarily embraces a determination that his injuries were sustained during the course of and as a result of his employment.” Precision Pipeline, 2023 WL 2365328, at *4 (quoting with emphasis added Bennett v. Buckner, 150 W. Va. 648, 653, 149 S.E.2d 201, 204 (1966)). Citing no supporting legal authority, Weese claimed Precision's negligence in hiring, retaining, and supervising the employee as an EMT is not the type of employer negligence contemplated by West Virginia’s workers’ compensation law such that immunity should bar his claim. See id. The Court found this argument ignored the clear and unambiguous language of the statute expressing a clear legislative intent to provide immunity.

West Virginia Code § 23-2-6 expressly provides that qualified employers are “not liable to respond in damages at common law ... for the injury or death of any employee, however occurring[.]” Id., in pertinent part (emphasis added). As we have already noted, “however occurring” means “an employee who is injured in the course of and as a result of his employment, and one who, under the common-law principles of master and servant, could have maintained an action against his employer.” Falls, 223 W. Va. at 72, 672 S.E.2d at 208 (emphasis added). Clearly, respondent, who concedes that he was injured in the course of and as a result of his employment, could have maintained an action against Precision under the common law principles of master and servant. Accordingly, workers’ compensation immunity bars respondent's claim for negligent hiring, retention, and supervision.

Precision Pipeline, LLC v. Weese, 2023 WL 2365328, at *4 (quoting Falls v. Union Drilling, Inc., 223 W. Va. 68, 72, 672 S.E.2d 204, 208 (2008)).

The Court similarly found that Weese’s co-employees are immune from suit.

It is beyond cavil that Stromberg and other employees were acting in furtherance of Precision's business when they attended to respondent following his injury. The allegations in respondent's complaint state that Petitioner Vanessa Stromberg, a supposed EMT employed by Precision, was summoned to the site where respondent was injured, that she failed to provide medical assistance, and that she and other Precision employees drove past a nearby hospital in order to transport respondent first to Precision's office, transferring him to another vehicle, and finally driving him to MedExpress. Respondent's own account of the events at issue – including that the employees’ actions were motivated by monetary safety bonuses allegedly offered by their employer – clearly shows that they were acting in furtherance of their employer's business, albeit negligently so. As such, Stromberg and her fellow employees are immune from suit.

Precision Pipeline, LLC v. Weese, 2023 WL 2365328, at *5.

Intermediate Court of Appeals

In the Spring Term of Court in 2023, the Intermediate Court of Appeals of West Virginia (ICA) continues to issue decisions of importance in workers’ compensation cases. Two opinions of note address the question whether a COVID infection is an ordinary disease of life or an occupational disease.

COVID Compensability

PrimeCare Medical of WV, Inc., v. Brittany Foster, No. 22-ICA-138, 2023 WL 2364951 (W. Va. App. 03/06/2023)

http://www.courtswv.gov/intermediate-court/docs/Spring2023/22-ICA-138_greear.pdf

In the first signed opinion in the Spring Term of 2023, the ICA reversed the Board of Review and remanded the case to determine whether claimant met the six statutory factors for establishing a communicable disease of ordinary life was compensable. The ICA found that the Board of Review's order failed to provide sufficient findings of fact and conclusions of law to support its ruling. West Virginia Code § 23-4-1(f) (2021) provides that no ordinary disease of life to which the general public is exposed outside of employment is compensable under workers’ compensation unless the disease was incurred in the course of and resulted from employment. To make such a determination, a detailed analysis of the six factors listed in West Virginia Code § 23-4-1(f) must be completed. No such analysis was completed by the BOR, so the ICA vacate the BOR's final order and remanded the case with direction to make specific findings of fact and conclusions of law for each of the individual factors under West Virginia Code § 23-4-1(f). PrimeCare Medical of WV, Inc. v. Foster, 2023 WL 2364951, at *1 (W.Va. App., 2023).

Foster was employed by PrimeCare as the Health Services Administrator at Southern Regional Jail, and had administered COVID-19 tests to inmates in the medical unit at the jail. When testing, Foster wore full personal protective equipment including an N95 mask. Foster attended a management staff meeting with the heads of each department in the jail. Several days after the meeting, PrimeCare sent everyone who attended the meeting home to quarantine, due to members of the staff testing positive for COVID-19. During Foster’s quarantine period, she engaged in several non-work related activities, including a trip to a drive-through zoo with her mother, father, and two nieces and a visit to the emergency room on August 4, 2020. On August 4, 2020, Foster submitted to a COVID-19 test at Summers County Appalachian Regional Healthcare Hospital, which was negative. On August 11, 2020, Foster took a second COVID-19 test, which was positive. Foster was hospitalized from August 11, 2020, to August 24, 2020, due to pneumonia. As of August 20, 2020, Ms. Foster tested negative for COVID-19.

Foster's medical records note that she has a history of recurrent bronchitis, suffers from morbid obesity, and had an issue with sinus tachycardia over the last few years. Beginning August 31, 2020, and continuing through March 9, 2022, Foster underwent treatment from multiple doctors for COVID-19, major depressive disorder, morbid obesity, asthma, congestive heart failure, dyspepsia, and tachycardia. PrimeCare Medical of WV, Inc. v. Foster, 2023 WL 2364951, at *1 (W. Va. App., 2023).

Claimant filed an application for workers’ compensation benefits (“WC-1”) alleging direct COVID-19 exposure while at work. The physician’s portion of the WC-1 form diagnosed Foster with COVID-19 but indicated “N/A” in response to whether the condition was a direct result of employment. Claimant completed a second WC-1 form again alleging direct COVID-19 exposure while at work. The physician completing the physician's portion of the second WC-1 form indicated “non-occupational condition” in response to whether the condition was a direct result of employment. On March 1, 2022, the claim administrator denied Foster's claim for COVID-19. This order was appealed.

Bruce Guberman, M.D., conducted an IME of Foster and determined that Foster's contraction of COVID-19 was an “occupational disease” based on the medical records and medical history reported by Foster. Dr. Guberman was subsequently deposed and acknowledged that no medical or scientific tests were available to determine the exact source of Foster's COVID-19 infection. Thomas Parker, M.D., issued a medical review report opining that Foster had COVID-19 in August of 2020, but that the condition was not an occupational disease. Further, Dr. Parker opined that Foster recovered from COVID-19 pneumonia very quickly based on the total lung capacity pulmonary function test from September 1, 2020. Dr. Parker attributed Foster's continuing pulmonary problems to asthma and tachycardia, which were well established in her medical records and pre-dated her COVID-19 diagnosis.

On August 29, 2022, the Board of Review reversed the claim administrator, held Foster's workers’ compensation claim compensable for COVID-19, and awarded her temporary total disability benefits from August 10, 2020, through March 9, 2022, to continue thereafter as substantiated by proper medical evidence.

The ICA examined the different routes some state legislatures have taken in addressing COVID-19 in the context of workers’ compensation, and the Court noted the limited number of appellate courts addressing the compensability of COVID-19 in workers’ compensation. The ICA also discussed the enactment by the West Virginia Legislature in March 2021 of the COVID-19 Job Protection Act in W. Va. Code § 55-19-6, that provides that workers’ compensation benefits are the sole remedy for any injury, disease, or death when the work-related injury, disease, or death is caused by COVID-19 received in the course of and resulting from covered employment.

COVID-19 is not compensable as an occupational disease unless it is incurred in the course of and resulting from employment. W. Va. Code § 23-4-1(f). No ordinary disease of life to which the general public is exposed outside of the employment is compensable except when it follows as an incident of occupational disease. “To determine if an ordinary disease of life follows as an incident of occupational disease, a six-factor analysis must be completed, and all factors must be met.” PrimeCare Medical of WV, Inc., 2023 WL 2364951, at *3.

W. Va. Code 23-4-1(f) provides the six-factor compensability test as follows:

A disease is considered to have been incurred in the course of or to have resulted from the employment only if it is apparent to the rational mind, upon consideration of all the circumstances: (1) that there is a direct causal connection between the conditions under which work is performed and the occupational disease; (2) that it can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment; (3) that it can be fairly traced to the employment as the proximate cause; (4) that it does not come from a hazard to which workmen would have been equally exposed outside of the employment; (5) that it is incidental to the character of the business and not independent of the relation of employer and employee; and (6) that it appears to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence, though it need not have been foreseen or expected before its contraction: Provided, That compensation is not payable for an occupational disease or death resulting from the disease unless the employee has been exposed to the hazards of the disease in the State of West Virginia over a continuous period that is determined to be sufficient, by rule of the board of managers, for the disease to have occurred in the course of and resulting from the employee's employment.

The Court held:

With this statutory framework in mind, we hold that although there is no prohibition on a claim for workers’ compensation benefits arising from or relating to COVID-19, it is generally not compensable, as it is a disease of ordinary life, unless the six factors contained in § 23-4-1(f) are met. While this undoubtedly creates a high burden on the claimant in establishing his or her case, it does not bar the compensability of COVID-19 claims when this burden is met.

PrimeCare Medical of WV, Inc., 2023 WL 2364951, at *4.

COVID Compensability

Vaughn Hutchison v. Raytheon Corp., No. 22-ICA-105, 2023 WL 2568817 (W. Va. App. 03/20/2023) (memorandum decision)

http://www.courtswv.gov/intermediate-court/memo-decisions/Spring2023/22-ICA-105md.pdf

In Hutchison v. Raytheon Corp., No. 22-ICA-105, 2023 WL 2568817 (W. Va. App. 03/20/2023) (memorandum decision), the ICA held that a determination of COVID-19 as an occupational disease requires the Board of Review to meaningfully assess the facts of each claim under the six-factors set forth in W. Va. Code 23-4-1(f), as discussed in PrimeCare Medical of WV, Inc., v. Brittany Foster, No. 22-ICA-138, 2023 WL 2364951 (W. Va. App. 03/06/2023). Hutchison failed to satisfy all of the six factors and the denial of his COVID-19 claim was affirmed.

Hutchison was employed by Raytheon as a builder of aircraft de-icing units. During the shut downs caused by the COVID-19 pandemic, Hutchison and his co-workers were deemed “essential workers” and the Raytheon facility operated normally with no reduction in the number of employees working any given shift. Hutchison testified co-workers were in close proximity to one another, and no social distancing or masking protocols were in place at the facility. Hutchison alleged he was exposed to and contracted COVID-19 in his workplace during an outbreak among employees when he and eight others tested positive. Hutchison v. Raytheon Corporation, 2023 WL 2568817, at *1.

Hutchison admitted that he attended church approximately three times monthly where congregation attendance consisted of approximately two hundred people. Hutchison was not aware of the health department considering his church to be a place of COVID-19 outbreak. The record is silent as to whether any COVID-19 safety protocols were employed by the church.

After contracting COVID-19, Hutchison was hospitalized and treated for atypical pneumonia from COVID-19 infection and dyspnea. He also reported to the hospital emergency department for shortness of breath, viral pneumonitis, and a respiratory tract infection from COVID-19. Hutchison completed a West Virginia Workers’ Compensation Employees’ and Physicians’ Report of Occupational Injury or Disease (“WC-1”) form alleging that he had contracted COVID-19 due to his workplace exposure. The physician's portion of the application was completed by Zach Halsey, D.O., who confirmed the diagnosis of COVID-19. Hutchison v. Raytheon, 2023 WL 2568817, at *2.

The claim administrator denied Hutchison's workers’ compensation claim based upon a lack of a causal connection between Hutchison's COVID-19 diagnosis and his work per W. Va. Code § 23-4-1(f), as COVID-19 is a disease of ordinary life to which the public is exposed outside of work. Hutchison protested and the Office of Judges affirmed the order of the claim administrator, concluding that COVID-19 is a disease of life to which the public at large is exposed and Hutchison's exposure at work did not arise to a level where such exposure could be deemed to have arisen in the course of and resulting from his employment. The Board of Review affirmed the decision of the Office of Judges.

On appeal, the ICA stated that an analysis of compensability of COVID-19 required Hutchison to satisfy all six factors set forth in W. Va. Code § 23-4-1(f) to prove compensability. In this case, the Board of Review found that COVID-19 is a disease of life to which the public at large is exposed and concluded that Hutchison's exposure at work did not arise to a level which could be deemed to have arisen in the course of and resulting from his employment. The Board of Review determined that even if it were to concede factors one, two, and three, that Hutchison could not satisfy the remaining factors. Specifically, after discussing the evidence introduced regarding Hutchinson's exposure at work and potential exposure at other locations including church, the Board of Review found “as the claimant described his exposure at Raytheon Corp., it would be difficult to find that COVID-19 comes from a hazard to which a workman would have been not exposed outside of employment.” The Board of Review also concluded that the exposure was not incidental to the character of the business, and that it did not have its origin in a risk connected with the employment. Hutchison v. Raytheon, 2023 WL 2568817, at *3.

The ICA agreed and concluded that the Board of Review was not clearly wrong in finding that Hutchison failed to meet his burden to prove that his contraction of COVID-19 was the result of his employment. “Per our decision in PrimeCare, if the BOR finds that the claimant has failed to satisfy any of the six factors under West Virginia Code § 23-4-1(f), further analysis is unwarranted.” Hutchison v. Raytheon, 2023 WL 2568817, at *3 (emphasis in original).

Jurisdiction

In Jessica Cassel v. Aspen Builders, Inc., No. 22-ICA-211, 2023 WL 2366502 (W. Va. App., 03/06/2023) (memorandum decision), the ICA addressed the question whether a fatal dependents’ benefits claim was properly filed in West Virginia when the employee’s death occurred on a job site in Kentucky. The claim administrator issued an order denying dependent benefits for lack of jurisdiction because Mr. Cassel was killed while working in Kentucky on a non-temporary basis. To be entitled to benefits under the West Virginia Workers’ Compensation system an employee's work in another state must be on a temporary or transitory basis. See West Virginia Code § 23-2-1a (2021). Cassel v. Aspen Builders, Inc., 2023 WL 2366502, at *1. The ICA found that the Board of Review was not clearly wrong in finding that Mr. Cassel’s work in Kentucky was not temporary or transitory due to testimony from the employer that Mr. Cassel would be working in Kentucky for over thirty days and the project he was working on when he sustained the fatal injury did continue beyond thirty days. The ICA found no error in the Board of Review’s ruling that Ms. Cassel is not entitled to Workers’ Compensation benefits in West Virginia.

West Virginia Legislative Session 2023

Intentional Tort Legislation Damages Cap

House Bill 3270 amends West Virginia Code § 23-4-2 and the deliberate intent exception to the exclusive remedy of workers’ compensation insurance for employee recovery for workplace injuries. The amendments limit noneconomic damages to $500,000 and heightens the burden of proof in deliberate intent cases based on occupational pneumoconiosis. The bill is effective 90 days from passage on June 8, 2023. The section applies to causes of action accruing on or after July 1, 2023.

House Bill 3270 created a new section W. Va. Code § 23-4-2a. In any deliberate intent lawsuit, the maximum amount recoverable as compensatory damages for noneconomic loss may not exceed the higher of two times the economic damages before the workers’ compensation offset or $500,000 for each person, regardless of the number of plaintiffs or defendants or, in the case of wrongful death, the number of distributees.

House Bill 3270 also sets a higher standard of proof necessary to bring a deliberate intent case when the underlying workplace claim is for occupational pneumoconiosis, set forth in W. Va. Code § 23-4-2(d)(2)(B)(v)(IV). House Bill 3270 added a threshold requirement that “the employee asserting a cause of action based upon this clause must prove that the employer fraudulently concealed or manipulated dust samples or air quality samples.”

Preferential Recall of Injured Employee

Another bill of interest to businesses in West Virginia is Senate Bill 661 that amends West Virginia Code §23-5A-3, relating to the preferential recall rights of an employee who is off work due to a compensable injury. The changes in the new statute include the employee’s demand for reinstatement to his/her former position must be in writing and delivered to the employer’s address by U.S. Mail with return receipt requested. The preferential recall time period remains one year provided the employee provides the employer a current mailing address during the one-year period. Finally, the new bill provides for a preferential recall time period of no greater than 120 days after the employee is released to return to work by a licensed physician when the injured employee is employed by contractors as defined by W. Va. Code §30-42-3 of the West Virginia Contractor Licensing Act. The employee of such an employer has an obligation to continually seek the possibility of employment during the preferential recall period, and the employee’s right to preferential recall terminates once the employer offers the employee his or her former position or a comparable position. The bill was signed by Governor Justice on March 29, 2023, and is effective 90 days from passage on June 9, 2023.

For any questions, please contact:

Dill Battle

Spilman Thomas & Battle, PLLC

hdbattle@spilmanlaw.com

304-340-3823