Preexisting Injuries Pose No Problem for W.Va. Mechanic’s Claim

Case File

The West Virgina top court upheld an Office of Judges' decision that found in a worker's favor on the basis that the employer didn't connect the dots between an alleged preexisting condition and his impairment following an occupational injury. Find the full text of the case on Simply Research.

Case: Murray American Energy Inc. v. Falcone, No. 22-0489 (W.Va. 08/01/24).

What happened: A mechanic working in a coal mine completed a report of injury indicating that he experienced an injury the day before when he twisted his torso while lifting an oxygen tank. The physician section of the report indicated that the mechanic sustained an occupational injury of mild and low back strains. The claim was held compensable for low back strain.

Due to increased symptoms, the mechanic underwent an MRI, which documented a mild focal central disk herniation and a central annular tear. The claim administrator approved the updated diagnosis.

The mechanic underwent an independent medical evaluation, which found a 3% whole person impairment from the compensable injury. Thus, the administrator granted a 3% permanent partial disability award.

The mechanic protested the administrator's decision and underwent an evaluation, which concluded that the mechanic had an 8% whole person impairment.

The Office of Judges found that appropriation was not appropriate in the case and that it was not until after the workplace injury that the mechanic developed consistent lumbar and lower extremity complaints. Ultimately, the Office of Judges reversed the administrator's order and awarded the mechanic and additional 5% permanent partial disability award. The Board of Review adopted the Office of Judges' findings and affirmed.

The employer appealed to the West Virginia Supreme Court of Appeals, arguing that the Office of Judges erred in not considering apportionment for the mechanic's preexisting spondylosis and disk disease.

Rule of law: West Virginia Code § 23-4-9b functions to disallow consideration of preexisting definitely ascertainable impairment in determining the percentage of PPD occasioned by a subsequent compensable injury except in cases where the second injury results in total permanent disability.

To prove that apportionment is warranted in a West Virginia case, the employer must prove that the claimant has a definitely ascertainable impairment resulting from preexisting conditions, which requires that the employer prove that the preexisting conditions contributed to the claimant's overall impairment after the compensable injury and prove the degree of impairment attributable to the claimant's preexisting conditions. See Duff v. Kanawha County Commission, No. 23-43 (W.Va. 04/22/24).

What the West Virginia Supreme Court of Appeals said: The order of the Office of Judges was not clearly wrong based upon the evidentiary record, so the court affirmed the Board of Review's decision.

Although the employer argued that the record documented preexisting degenerative changes to the mechanic's lumbar spine and complains of radiculopathy pain prior to the date of injury in the claim at issue, there was no evidence from the mechanic's medical history to suspect that a definitely ascertainable portion of his whole person impairment preexisted his occupational injury.

Takeaway: In West Virgina, a preexisting injury won't automatically affect a PPD rating without showing a definitely ascertainable contribution from the preexisting injury to a whole-person impairment.

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