Duff v. Kanawha Cty. Comm'n

905 S.E.2d 528

David DUFF, II, Petitioner,

v.KANAWHA COUNTY COMMISSION, Respondent.

No. 23-43

Supreme Court of Appeals of West Virginia.

Submitted: January 9, 2024

Filed: April 22, 2024

Concurring and Dissenting Opinion of Chief Justice Armstead April 23, 2024

Syllabus of the Court

1. It is a settled principle of statutory construction that courts presume the Legislature drafts and passes statutes with full knowledge of existing law.

2. Upon judicial review of an appeal of a decision of the West Virginia Board of Review to the Intermediate Court of Appeals of West Virginia, under West Virginia Code § 23-5-12a(b) (eff. Jan. 13, 2022):

The Intermediate Court of Appeals may affirm the order or decision of the Workers’ Compensation Board of Review or remand the case for further proceedings. It shall reverse, vacate, or modify the order or decision of the Workers’ Compensation Board of Review, if the substantial rights of the petitioner or petitioners have been prejudiced because the Board of Review’s findings are:

(1) In violation of statutory provisions;

(2) In excess of the statutory authority or jurisdiction of the Board of Review;

(3) Made upon unlawful procedures;

(4) Affected by other error of law;

(5) Clearly wrong in view of the reliable, probative, and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

3. On appeal of a decision of the West Virginia Workers’ Compensation Board of Review from the Intermediate Court of Appeals of West Virginia to the Supreme Court of Appeals of West Virginia, the Supreme Court of Appeals is bound by the statutory standards contained in West Virginia Code § 23-5-12a(b) (eff. Jan. 13, 2022). Questions of law are reviewed de novo, while findings of fact made by the Board of Review are accorded deference unless the reviewing court believes the findings to be clearly wrong.

4. "The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." Syllabus Point 1, Smith v. State Workmens Compensation Commissioner, 159 W. Va. 108, 219 S.E.2d 361 (1975).

5. "When a statute is clear and unambiguous and the legislative intent is plain, it is the duty of the courts to apply the statute in accordance with the legislative intent therein clearly expressed." Syllabus Point 1, Jarrell v. State Workmen’s Compensation Commissioner, 152 W. Va. 418, 163 S.E.2d 798 (1968).

6. 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).

Appeal from the Intermediate Court of Appeals of West Virginia, No. 22-ICA-10, Judicial Claim No. 2021000317

William B. Gerwig, III, Esq., Charleston, West Virginia, Counsel for the Petitioner H. Dill Battle, III, Esq., Charity K. Lawrence, Esq., Spillman Thomas & Battle, PLLC, Charleston, West Virginia, Counsel for the Respondent

HUTCHISON, Justice:

When an employee is injured in the course of and resulting from his or her covered employment, the employee is ordinarily entitled to workers’ compensation benefits to compensate him or her for the disability related to the work-related injury. Sometimes, though, the employee has a preexisting condition unrelated to the work injury that will contribute to the employee’s overall disability. Generally, the employer becomes liable for the entire disability resulting from a compensable accident under the "full responsibility rule." Some states, though, have enacted so-called apportionment statutes which do away with the full responsibility rule. These statutes are meant to separate out a preexisting disability from the disability arising from the current compensable injury and impose upon employers the duty to "compensate injured workers only for that portion of their permanent disability attributable to a current industrial injury, not for that portion attributable to previous injuries or to nonindustrial factors." Brodie v. Work. Comp. Appeals Bd., 40 Cal.4th 1313, 57 Cal.Rptr.3d 644, 156 P.3d 1100, 1104 (2007). West Virginia has adopted an apportionment statute and codified it at West Virginia Code § 23-4-9b (2003).

The Petitioner, David Duff II, was injured on the job. He applied for workers’ compensation benefits and the workers’ compensation carrier for the Respondent, the Kanawha County Commission, ultimately awarded the Petitioner a 13% Permanent Partial Disability (PPD) award. This award was based upon a medical report that, while finding the Petitioner had a 25% whole person impairment, apportioned 12% of the whole person impairment to an alleged preexisting condition.¹ The Petitioner then protested that 13% PPD award to the West Virginia Workers’ Compensation Board of Review (BOR) where he produced a medical evaluation showing he was entitled a full 25% PPD award as no apportionment was indicated. The BOR affirmed the 13% PPD award finding that "[t]he evidence on [sic] record indicated that apportionment should occur and is proper." The Petitioner appealed to the Intermediate Court of Appeals of West Virginia (ICA) arguing that apportionment was not proper in his case. The ICA disagreed and affirmed the BOR. Duff v. Kanawha County Comm’n, 247 W. Va. 550, 882 S.E.2d 916 (Ct. App. 2022). The Petitioner now appeals the ICA’s judgment to this Court.

After reviewing the parties’ briefs and appendix records, consulting pertinent authority, and considering the parties’ oral arguments in this Court, we conclude the ICA erred in affirming the BOR. We therefore, reverse the ICA’s decision and remand this case to the BOR with directions.

I. Facts and Procedural Background

The Petitioner was a Kanawha County Deputy Sheriff in the Department’s bomb squad on June 15, 2020, when he injured his back lifting a bomb detector robot out of the back of a truck. The Respondent’s workers’ compensation insurer claims examiner found the injury compensable. On September 24, 2020, the claims’ examiner authorized lumbar interbody fusion surgery for the Petitioner. Robert Crow, M.D., performed a successful L3-L4 posterior lumbar interbody fusion on the Petitioner.

After the Petitioner underwent surgery, the claims examiner referred the Petitioner to Prasadarao Mukkamala, M.D. for an independent medical evaluation. In his report, Dr. Mukkamala indicated that he reviewed office records from McKinney Family Chiropractic dated July 1 to October 21, 2020, a lumbar spine MRI dated July 14, 2020, office records from West Virginia OrthoNeuro (Dr. Crow’s medical practice) dated August 5, 2020, through March 19, 2021, as well as "[m]ultiple physical therapy records[.]" Dr. Mukkamala concluded in his report that the Petitioner "has reached [the] maximum degree of medical improvement from the compensable injury dated 6/15/2020."

Based upon the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993) (AMA Guides), Dr. Mukkamala opined that the Petitioner had a total whole person impairment of 25% for the lumbar spine. Dr. Mukkamala apportioned 12% to pre-existing degenerative spondyloarthropathy and 13% to the compensable injury. The entirety of Dr. Mukkamala’s apportionment decision contained in his report was:

Please note that the 25% whole person Impairment is resulting from the preexisting degenerative spondyloarthropathy as well as the compensable injury of 6/15/2020.

I will apportion Impairment and allocate 12% to the preexisting degenerative spondyloarthropathy and 13% to the compensable injury of 6/15/2020.

Based upon Dr. Mukkamala’s report, the claims examiner awarded the Petitioner a 13% PPD award. The Petitioner protested to the BOR and his counsel arranged for the Petitioner to be examined by Bruce Guberman, M.D. Dr. Guberman’s report related, among other things, that the Petitioner unsuccessfully received chiropractic treatment from McKinney Chiropractic commencing on July 1, 2020. Dr. Guberman’s report also reflected that the Petitioner told him that before his injury he had had occasional lower back pain. He also informed Dr. Guberman that he had been seeing Dr. McKinney intermittently after joining the Sheriff’s Department and that Dr. McKinney offered discounts to law enforcement officers. The Petitioner relayed to Dr. Guberman that his treatment was primarily massage due to tightness in his muscles from wearing a 20-pound gun belt, which he experienced about once a week. The Petitioner also told Dr. Guberman that before his injury the pain never radiated into his legs, and he has never had numbness, tingling, or weakness in his legs.

Dr. Guberman opined that the Petitioner had reached maximum medical improvement with 12% whole person impairment for the lumbar spine. He also rated 14% whole person impairment for range of motion abnormalities of the lumbar spine. Another 1% whole person impairment was found for sen- sory abnormalities of the lower extremities. Dr. Guberman then combined the 14% rating for range of motion abnormalities with the 12% whole person impairment from Table 75 of the AMA Guides by the Combined Values Chart to arrive at a total of 25% whole person impairment. Dr. Guberman opined the entire impairment should be apportioned to the June 15, 2020, injury. He further opined that although the Petitioner had imaging studies that revealed evidence of degenerative joint and disc disease of the lumbar spine which was present before the injury, he would not have qualified for an impairment rating using either the Range of Motion Model or Table 85-20-C before the current injury. Dr. Guberman...