Blackhawk Mining, LLC v. Harold G. Elswick II, 25-ica-22

Harold G. Elswick II suffered injuries to his neck, left shoulder, and right knee during a work-related fall on January 16, 2023, while employed by Blackhawk Mining, LLC.
His claim was initially deemed compensable for sprain/strain injuries to the specified body parts.
Two medical evaluations produced different impairment ratings: Dr. Mukkamala assessed 9% whole person impairment (WPI) for the compensable injuries, while Dr. Guberman assessed a total of 13% WPI, with different apportionment for preexisting conditions.
The Workers’ Compensation Board of Review adopted Dr. Guberman’s findings, reversing the claim administrator and awarding Mr. Elswick a 13% permanent partial disability (PPD) award.
Blackhawk appealed, challenging the Board's reliance on Dr. Guberman's methodology and apportionment as arbitrary and unsupported.
The Intermediate Court of Appeals affirmed the Board’s decision, finding its reliance on Dr. Guberman’s report reasonable and in line with legal standards for apportionment and credibility decisions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Board erred in awarding an additional 4% PPD based on Dr. Guberman's report	Blackhawk: The Board relied on an arbitrary and unreasoned opinion for the higher WPI rating	Elswick: Dr. Guberman's apportionment was rational and consistent with medical and legal standards	The Board's adoption of Dr. Guberman’s 13% WPI was reasonable and supported by the record
Whether the Board properly discounted Dr. Mukkamala's higher apportionment to preexisting conditions	Blackhawk: Dr. Mukkamala’s analysis was more appropriate and should control	Elswick: Dr. Mukkamala’s approach was arbitrary and not supported by specific findings	The Board reasonably found Dr. Guberman’s apportionment more persuasive
Whether rounding impairment percentages upward was permissible	Blackhawk: Rounding up was unsupported and arbitrary	Elswick: The AMA Guides permit such rounding with rationale	The court found such rounding permissible under the Guides and precedent
Whether the employer met its burden to prove apportionment for preexisting conditions	Blackhawk: Sufficient proof existed justifying apportionment	Elswick: Employer did not sufficiently prove the degree attributable to prior conditions	The employer did not meet its burden under case law for greater apportionment

Duff v. Kanawha Cnty. Comm’n, 250 W. Va. 510, 905 S.E.2d 528 (W. Va. 2024) (sets the burden on employer to prove degree of apportionment for preexisting conditions)
In re Queen, 196 W. Va. 442, 473 S.E.2d 483 (W. Va. 1996) (explains the deferential standard for review of agency decisions)
Martin v. Randolph Cnty. Bd. of Educ., 195 W. Va. 297, 465 S.E.2d 399 (W. Va. 1995) (affirms deference to fact-finder’s credibility determinations)