882 S.E.2d 916
W. Va. Ct. App.2022Background
- Claimant David Duff injured his low back, left hip, and pelvis lifting a 150‑lb robot on June 15, 2020; lumbar fusion (L3‑4) was authorized and performed.
- IME by Dr. Mukkamala produced a 25% whole person impairment (WPI) after applying CSR Table §85‑20‑C Category V, then apportioned 12% to preexisting degenerative changes and 13% to the compensable injury.
- Dr. Guberman rated 25% WPI but declined to apportion, believing preinjury degenerative changes were not ratable; Dr. Soulsby (excluded by Board on form grounds) recommended ~50% apportionment to preexisting disease.
- Substantial preinjury records from McKinney Family Chiropractic documented ~2 years of treatment and longstanding back complaints going back years, including treatment goals to improve thoracolumbar ROM by 50%.
- The claim administrator awarded 13% PPD (reflecting the apportioned compensable share); the Board affirmed that apportionment was proper and supported by Dr. Mukkamala’s opinion and the McKinney records.
Issues
| Issue | Plaintiff's Argument (Duff) | Defendant's Argument (Kanawha County) | Held |
|---|---|---|---|
| 1) Meaning of “definitely ascertainable/ascertained” under W. Va. Code §23‑4‑9b | Requires pre‑injury quantifiable data (e.g., ROM, prior PPD, ratable diagnosis) to ascertain preexisting impairment | Refers only to existence of a preexisting condition; degree may be established later by competent evidence | Court: “definitely ascertainable/ascertained” refers to existence of a preexisting condition, not a pre‑injury numeric impairment rating |
| 2) Whether quantifiable preinjury data is required to apportion impairment | Apportionment is speculative and impermissible absent preinjury ROM, prior awards, or ratable diagnosis/procedure | Quantifiable data not always available; other competent evidence (imaging, treatment history) can support apportionment | Court: Quantitative preinjury data is not always required; reasonable apportionment may be based on other competent evidence |
| 3) Whether roughly 50/50 apportionment without mathematical explanation is arbitrary | Assigning about half to preexisting disease is arbitrary without calculable basis | Apportionment supported here by preinjury symptomatic treatment records and IME opinion | Court: Not arbitrary on these facts; Board reasonably relied on Mukkamala and McKinney records but urged clearer physician explanations in future |
Key Cases Cited
- Justice v. W. Va. Office of Ins. Comm’n, 230 W. Va. 80, 736 S.E.2d 80 (2012) (questions of law reviewed de novo)
- In re Queen, 196 W. Va. 442, 473 S.E.2d 483 (1996) (administrative decisions presumed valid if supported by substantial evidence)
- Frymier–Halloran v. Paige, 193 W. Va. 687, 458 S.E.2d 780 (1995) (deference to administrative findings supported by substantial evidence)
- Conley v. Workers’ Comp. Div., 199 W. Va. 196, 483 S.E.2d 542 (1997) (plainly wrong standard described for administrative review)
- SWVA, Inc. v. Office of Ins. Comm’n, 222 W. Va. 435, 664 S.E.2d 776 (2008) (reinforcing Conley standard)
- Wagner v. Workers’ Comp. Div., 205 W. Va. 186, 517 S.E.2d 283 (1999) (AMA Guides: impairment requires interference with activities of daily living)