Did Past Falls Justify Trashing Part of Garbage Man’s Compensation for Concussion?

In West Virginia, employees are not entitled to compensation for the portion of an injury that is the result of pre-existing conditions. One case shows why it’s important for employers to ensure that at least one doctor considers those conditions before a workers’ compensation judge or board rules on the claim.

The claimant, a man named “Workman,” was working for a solid waste authority when he fell several feet off a truck and was knocked unconscious. He sustained permanent partial disability based on: a concussion; a scalp abrasion; and a right shoulder contusion.

Prior to the incident, Mr. Workman had a history of vertigo, falling, and concussions. He and the solid waste authority disputed the extent to which his current injuries were compensable under the workers' compensation statute. 

Three doctors provided opinions concerning apportionment:

Dr. M: 

5% Vertigo from concussion;
0% Abrasion of scalp;
1% Contusion of shoulder.

Dr. M. found 6% whole person impairment.

Based on this recommendation, the claim administrator granted Mr. Workman a 6% permanent partial disability award .

Dr. G.

9% Disequilibrium
5% Reduced range of motion from shoulder contusion

Dr. G. found a 14% whole person impairment.

Dr. K.

9% Disequilibrium
5% Reduced range of motion from shoulder contusion

Dr. K. diagnosed a myriad of conditions including concussion and memory loss for a total of a14% whole person impairment.

Dr. S.
7% Shoulder contusion

Dr. S. assessed 9% whole person impairment but found that all of it was due to prior injuries. 

Regarding the shoulder contusion, Dr. S. assessed a 7% whole person impairment. Dr. S. found just 3% was due to compensable injury, with 4% due to preexisting injuries). He found a 3% whole person impairment.

Under West Virginia law, injured workers, unless they are permanently totally disabled, cannot receive compensation for any portion of the injury that’s preexisting. The employer, however, has to show what portion of the injury is due to a pre-existing condition.

Was 6% apportionment proper?

A. No. Dr. G and Dr. K recommended 14 percent.

B. Yes. The two doctors who recommended more didn’t address the prior injuries.

If you selected B, you agreed with the court in Workman v. Raleigh County Solid Waste Authority, No. 24-231 (W. Va. 01/14/25), which held that the Authority showed that it was proper to award 6%.

First, the employee had a prior history of multiple head injuries resulting in dizziness and issues with disequilibrium. 

Second, Dr. M. acknowledged the preexisting conditions and attributed five percent impairment to the employee’s compensable concussion-related complaints. 

Third, Dr. S. apportioned all of the 9% impairment that he found to the natural progression of the employee’s pre-existing disease, bolstering the conclusion that the prior injuries played a major role in the employee’s current state of health.

Fourth, the recommendations of Dr. G and Dr. K were not reliable for establishing impairment, the court stated, because each physician failed to tie any of the impairment to the prior injuries.

“Dr. [M’s] 6% whole person impairment, as noted by the [appeals court], closely resembles the true impairment arising from the compensable injury,” the court wrote.

The court affirmed that decision.

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