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West Virginia law, like statutes in a number of states, allows employers to try and apportion contributions to a worker’s injury, including how much a pre-existing condition may have played a role. The employer/insurer holds the burden of proof.

In a decision released this week, the West Virginia Supreme Court of Appeals found that a county commission had failed to prove that a deputy sheriff’s prior condition contributed to his back injury. The court ordered that the man’s workers’ compensation benefits be doubled.

“While proof of a preexisting condition is necessary to apportionment, it is not itself sufficient. There must be proof of the degree of ‘a definitely ascertainable impairment,'” the justices wrote in David Duff II vs. Kanawha County Commission, handed down April 22.

Duff, a member of the Kanawha Sheriff’s bomb squad, injured his back in 2020 when he lifted a bomb-detector robot out of the back of a truck. The county’s workers’ compensation insurer found the claim compensable and agreed to permanent partial disability benefits and surgery for the deputy.

An independent medical evaluation by Dr. Prasadarao Mukkamala then examined Duff’s chiropractic treatment records and decided that Duff had a 25% permanent partial disability, but apportioned half of that to a pre-existing degenerative back condition, the Supreme Court explained.

Duff appealed to the state Workers’ Compensation Board of Review and was examined by another physician.

Dr. Bruce Guberman determined that the back injury from the robot lifting had caused a 25% whole-person impairment to the deputy. And while Duff had seen a chiropractor off and on through the years, perhaps due to his wearing a 20-lb. gun belt most days, his back pain and leg pain was significantly worsened by the lifting injury.

A third doctor, obtained by the employer/insurer, agreed with the IME and apportioned. That physician failed to include an examination form, however, and his conclusion was disregarded.

The Board of Review gave more weight to Mukkamala’s IME and granted a reduced, 13% PPD to the deputy. Duff then appealed to the state’s Intermediate Court of Appeals, a court that was established in 2022. That court upheld the review board.

But the majority of Supreme Court, in its , found Mukkamala’s conclusion that half of Duff’s condition was due to a prior condition was “arbitrary” and lacked reasoning and supporting rationale.

“A non-treating doctor’s opinion must be well supported and reasoned. A conclusory medical opinion will not suffice,” Justice Elizabeth Walker wrote, citing a 1980 court opinion from Oregon. “Medical reports without reasoning and rationale are conclusory and perforce lack probative value.”

Guberman’s report, on the other hand, thoroughly explained the basis for his decision not to apportion, per the American Medical Association’s Guides to the Evaluation of Permanent Impairment.

The high court reversed the appeals court and ordered the Board of Review to grant a 25% permanent partial disability to Duff. Chief Justice Tim Armstead concurred in part, in part.

As of 2022, West Virginia law based PPD on two-thirds of the worker’s average weekly wage, not to exceed 70% of the average wage in the state, or about $707 per week, according to the state Å˽ðÁ«´«Ã½Ó³»­ Commissioner’s Office. Evaluators must use the 4^th edition of the AMA impairment guide.

The Supreme Court opinion can be seen .

Topics Workers' Compensation Virginia West Virginia