879 S.E.2d 779
W. Va.2022Background
- On November 14, 2016 James A. Moore, Jr. suffered a work injury (shuttle‑car impact) and the claim was held compensable for right shoulder sprain, upper back strain, and neck pain.
- Post‑injury MRIs showed preexisting cervical degenerative disc disease that was asymptomatic before the accident.
- After the accident Moore developed cervical radiculopathy and underwent anterior cervical discectomy and fusion (ACDF) at C5‑6; treating physicians (Vaglienti, France, Guberman) opined the radiculopathy was causally related to the work injury.
- The claims administrator denied adding C5‑6 spondylosis with C6 radiculopathy and denied reopening TTD; Moore protested and the Office of Judges and Board of Review affirmed, focusing on the diagnosis form and questioning objective support for radiculopathy.
- The Supreme Court of Appeals reversed, holding cervical (C6) radiculopathy compensable, remanding to add that diagnosis, to reopen for TTD as justified by medical evidence, and to assess PPD.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether cervical radiculopathy is a compensable, discrete new injury | Moore: radiculopathy is a new, compensable injury caused/triggered by the compensable accident (Gill) | ICG: the request really sought to add degenerative spondylosis (noncompensable); Gill does not support adding preexisting degenerative diagnoses | Court: reversed — C6 radiculopathy (M54.12) is compensable and must be added |
| Effect of preexisting asymptomatic degenerative disease on compensability | Moore: under Charlton, an asymptomatic preexisting disease does not bar compensability when the accident superinduces a new disabling condition | ICG: degenerative spondylosis is noncompensable and cannot be added merely because symptoms followed the injury | Court: adopted a rebuttable presumption — if a preexisting condition was asymptomatic and symptoms began and continuously manifested after the accident, causation is presumed unless employer rebuts; applied Charlton/Gill to find compensability |
| Whether the Office of Judges properly assessed evidence versus form | Moore: OJ erred by elevating the diagnosis code on the update form and failing to apply physicians’ office notes and opinions | ICG/OJ: OJ/Board maintained the form reflected spondylosis with radiculopathy and questioned objective support for radiculopathy | Court: OJ committed legal error by deferring to form over the substance of treating physicians’ opinions and record; reversal warranted |
Key Cases Cited
- Gill v. City of Charleston, 236 W. Va. 737, 783 S.E.2d 857 (2016) (noncompensable preexisting injury may not be added simply because it was aggravated; aggravation that results in a discrete new injury may be compensable)
- Charlton v. State Workmen's Comp. Comm'r, 160 W. Va. 664, 236 S.E.2d 241 (1977) (preexisting asymptomatic disease does not preclude compensation where the work injury superinduces disability)
- Barnett v. State Workmen's Comp. Comm'r, 153 W. Va. 796, 172 S.E.2d 698 (1970) (three elements of compensability)
- Sowder v. State Workmen's Comp. Comm'r, 155 W. Va. 889, 189 S.E.2d 674 (1972) (claimant bears burden but need not exclude all other causes)
- Hammond v. Fid. & Cas. Co. of New York, 419 So. 2d 829 (La. 1982) (rebuttable presumption that disabling condition that was asymptomatic before an accident and continuously manifested after results from the accident)