DAVID DUFF, II, Petitioner, v. KANAWHA COUNTY COMMISSION, Respondent.
No. 23-43
Supreme Court of Appeals of West Virginia
April 22, 2024
January 2024 Term
No. 22-ICA-10
Judicial Claim No. 2021000317
REVERSED AND REMANDED WITH DIRECTIONS
FILED April 22, 2024
released at 3:00 p.m.
C. CASEY FORBES, CLERK
SUPREME COURT OF APPEALS OF WEST VIRGINIA
William B. Gerwig, III, Esq. Charleston, West Virginia Counsel for the Petitioner
Submitted: January 9, 2024
Filed: April 22, 2024
H. Dill Battle, III, Esq. Charity K. Lawrence, Esq. Spillman Thomas & Battle, PLLC Charleston, West Virginia Counsel for the Respondent
JUSTICE HUTCHISON delivered the Opinion of the Court.
CHIEF JUSTICE ARMSTEAD concurs in part, and dissents in part, and reserves the right to file a separate opinion.
JUSTICE BUNN concurs in part, and dissents in part, and reserves the right to file a separate opinion.
- It is a settled principle of statutory construction that courts presume the Legislature drafts and passes statutes with full knowledge of existing law.
- 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.
- 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. - “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 Workmen‘s Compensation Commissioner, 159 W. Va. 108, 219 S.E.2d 361 (1975).
- “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).
- 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).
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., 156 P.3d 1100, 1104 (Cal. 2007). West Virginia has adopted an apportionment statute and codified it at
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
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
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 sensory abnormalities of the lower extremities. Dr. Guberman then combined the 14% rating for range of motion abnormalities with the
Subsequently, the Respondent‘s counsel arranged for another medical evaluation to be performed on the Petitioner by David L. Soulsby, M.D. Dr. Soulsby found that the Petitioner had a 25% whole person impairment and agreed with Dr. Mukkamala that 12% of the impairment had to be apportioned to a pre-existing disease process for a
During the BOR proceedings, the Respondent submitted the Petitioner‘s chiropractic records from McKinney Chiropractic dated September 26, 2018, to June 23, 2020. These records reflected that the Petitioner had lower back pain and stiffness from the time he began working in 1999. The chiropractic records reflected a diagnosis of segmental and somatic dysfunction of the lumbar, cervical, thoracic, sacral, and sacrococcygeal region. The short-term goals of the chiropractic treatment were to improve thoracolumbar range of motion by 50%, decrease pain, restore range of motion, and improve the Petitioner‘s activities of daily living without pain.
The BOR affirmed the 13% PPD award by order of July 26, 2022. The BOR disregarded Dr. Soulsby‘s report as it did not include a low back examination form as mandated by
The BOR believed that these records established a pre-existing back condition with a definite ascertainable functional impairment because the records
dated up to less than two months before the compensable injury, establish almost a two-year history of low back pain and treatment consisting of approximately 30 office visits. The records report a lumbar diagnosis and show a loss of [range of motion] due to the pre-existing back condition as evidenced by the treatment goal to improve and restore his [range of motion]. Thus, the records do establish a pre-existing back condition with a definite ascertainable functional impairment.
The BOR concluded that the evidence established a pre-existing lumbar diagnosis and range of motion loss of the lumbar spine. The BOR stated that Dr. Guberman did not report a review of any records from Dr. McKinney, the chiropractor, and concluded that Dr. Guberman‘s opinion that the Petitioner would not have qualified for an impairment before the June 15, 2020, injury was based upon incomplete evidence.
Finally, the BOR addressed the claim that Dr. Mukkamala‘s 50-50 apportionment was arbitrary. “[N]o medical opinion in which apportionment occurs has been submitted that refutes Dr. Mukkamala‘s amount of apportionment. Whereas it has been determined that apportionment is to occur, Dr. Mukkamala‘s report is most in accordance with the evidentiary record.”
The Petitioner then appealed to the ICA which affirmed the BOR‘s decision. Duff, 247 W. Va. at 53, 882 S.E.2d at 19.
The Petitioner timely appealed from the ICA to this Court. We now reverse the ICA‘s decision.
II. Standard of Review
At this point in our opinion, we address the standard of review governing this appeal.
We begin by observing that the Legislature has crafted a standard of review for the ICA to apply to BOR appeals.
decision. The court may not conduct a de novo reweighing of the evidentiary record. If the court reverses or modifies a decision of the board pursuant to this subsection, it shall state with specificity the basis for the reversal or modification and the manner in which the decision of the board clearly violated constitutional or statutory provisions, resulted from erroneous conclusions of law, or was so clearly wrong based upon the evidentiary record that even when all inferences are resolved in favor of the board‘s findings, reasoning, and conclusions, there is insufficient support to sustain the decision.
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 Worker’ 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.
This is practically identical to the standard of review that the Legislature set forth in the West Virginia Administrative Procedures Act (APA) for appeals from administrative agencies to circuit court courts prior to the creation of the ICA.4 And in this
On appeal of an administrative order from a circuit court, this Court is bound by the statutory standards contained in
W. Va. Code § 29A-5-4(a) and reviews questions of law presented de novo; findings of fact by the administrative officer are accorded deference unless the reviewing court believes the findings to be clearly wrong.
(2) In excess of the statutory authority or jurisdiction of the agency;
(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.
“[T]his Court has held that it is a settled principle of statutory construction that courts presume the Legislature drafts and passes statutes with full knowledge of existing law.” Charleston Gazette v. Smithers, 232 W. Va. 449, 467, 752 S.E.2d 603, 621 (2013). This includes familiarity with the rules of statutory construction. See Syl. Pt. 4, Twentieth St. Bank v. Jacobs, 74 W. Va. 525, 82 S.E. 320 (1914) (“The Legislature is presumed to know the rules and principles of construction adopted by the courts.“). We may, therefore, presume that when it legislates, the Legislature “is aware of judicial interpretations of existing statutes when it passes new laws[,]” United States v. Place, 693 F.3d 219, 229 (1st Cir. 2012), including past judicial practices under those statutes. See In re Egebjerg, 574 F.3d 1045, 1050 (9th Cir. 2009) (“[W]e presume that when Congress legislates, it is aware of past judicial interpretations and practices.“). Hence, we presume that the Legislature was aware of our use of the language contained in
Having set forth the standard of review governing this appeal, we now turn to the merits of the parties’ arguments.
The Petitioner claims that the ICA erred in affirming the BOR‘s decision to apportion in his case. We agree.
The controlling statute in this case,
Where an employee has a definitely ascertainable impairment resulting from an occupational or a nonoccupational injury, disease or any other cause, whether or not disabling, and the employee thereafter receives an injury in the course of and resulting from his or her employment, unless the subsequent injury results in total permanent disability within the meaning of section one, article three of this chapter, the prior injury, and the effect of the prior injury, and an aggravation, shall not be taken into consideration in fixing the amount of compensation allowed by reason of the subsequent injury. Compensation shall be awarded only in the amount that would have been allowable had the employee not had the preexisting impairment. Nothing in this section requires that the degree of the preexisting impairment be definitely ascertained or rated prior to the injury received in the course of and resulting from the employee‘s employment or that benefits must have been granted or paid for the preexisting impairment. The degree of the preexisting impairment may be established at any time by competent medical or other evidence. Notwithstanding the foregoing provisions of this section, if the definitely ascertainable preexisting impairment resulted from an injury or disease previously held compensable and the impairment had not been rated, benefits for the impairment shall be payable to the claimant by or charged to the employer in whose employ the injury or disease occurred. The employee shall also receive the difference, if any, in the benefit rate applicable in the more recent claim and the prior claim.
In addressing the meaning of any statute, it is our duty to effectuate the Legislature‘s intent in passing the statute. “The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.” Syl. Pt. 1, Smith v. State Work. Comp. Comm‘r, 159 W. Va. 108, 219 S.E.2d 361 (1975). “That intention is to be garnered first and foremost from the language the legislature uses in the statute.” Freeland v. Marshall, 249 W. Va. 151, 895 S.E.2d 6, 13 (2023). In short, “[w]hen a statute is clear and unambiguous and the legislative intent is plain, it is the duty of the courts to apply the
Except as provided for in section 66 of this Rule, on and after the effective date of this rule all evaluations, examinations, reports, and opinions with regard to the degree of permanent whole body medical impairment which an injured worker has suffered shall be conducted and composed in accordance with the “Guides to the Evaluation of Permanent Impairment,” (4th ed. 1993), as published by the American Medical Association.
This administrative rule goes on to state that:
If in any particular claim, the examiner is of the opinion that the Guides or the section 64 substitutes cannot be appropriately applied or that an impairment guide established by a recognized medical specialty group may be more appropriately applied, then the examiner‘s report must document and explain the basis for that opinion. Deviations from the requirements of the Guides or the section 6 [sic] substitutes shall not be the basis for excluding evidence from consideration. Rather, in any such instance such deviations shall be considered in determining the weight that will be given to that evidence....
Id. (emphasis added).
the burden of production and persuasion). Third, apportionment is comparable to the tort concept of comparative negligence, on which the defendant carries the burden of proof. See Cowin, 860 P.2d at 538-39. See generally 65A C.J.S. Negligence § 790 (March 2023 update) (“Comparative negligence is an affirmative defense, and the party asserting the defense bears the burden of proving that the negligence of the other party was a cause in fact of the accident.“). And finally, public policy supports placing the burden of proof on the employer: issues of apportionment can be unusually complicated because of the difficulty in attributing and apportioning disability among various causes, so it should be “the employer whose working conditions have admittedly caused harm to the employee’ who should bear the burden of “medical imprecision” inherent in the apportionment analysis. See Cowin, 860 P.2d at 538; cf. Walls v. Hodo Chevrolet Co., 302 So. 2d 862, 865-66 (Miss. 1974) (concluding that it was appropriate to place the burden on the employer to not only prove the existence of a pre-existing condition for purposes of apportionment but to present medical evidence that the pre-existing disease contributed to the employee‘s disability).
Barker v. Labor Comm‘n, 528 P.3d 1260, 1265 (Utah Ct. App.), cert. denied, 534 P.3d 751 (Utah 2023).
It has been recognized that “most of the probative value of a medical opinion comes from its reasoning.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); cf. Kosik v. Dir., Off. of Work. Comp. Programs, 50 F. App‘x 509, 512 n.7 (3d Cir. 2002) (“[A] non-treating doctor‘s opinion must be well supported and reasoned. A conclusory medical opinion will not suffice.“). Medical reports without reasoning and rationale are conclusory and perforce lack probative value. See In the Matter of the Compensation of
66.1 The evidentiary weight to be given to a report will be determined by how well it demonstrates that the evaluation and examination that it memorializes were conducted in accordance with the applicable Guides and that the opinion with regard to the degree of permanent whole body medical impairment suffered by an injured worker was arrived at and composed in accordance with the requirements of the applicable Guides.
. . .
66.4 To the extent that factors other than the compensable injury may be affecting the injured worker‘s whole body medical impairment, the opinion stated in the report must, to the extent medically possible, determine the contribution of those other impairments whether resulting from an occupational or a nonoccupational injury, disease, or any other cause.
We read these subsections together as a cohesive whole. See, e.g., State ex rel. McGraw v. W. Va. Ethics Comm‘n, 200 W. Va. 723, 727, 490 S.E.2d 812, 816 (1997) (“Every part of a statute must be construed in connection with the whole, so as to make all
In this case, the entirety of Dr. Mukkamala‘s report regarding apportionment provided:
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.
Moreover, Dr. Mukkamala‘s unexplained 50-50 apportionment is arbitrary. “A decision is arbitrary if it is without a rational basis, is based alone on one‘s will and not upon any course of reasoning and exercise of judgment, is made at pleasure, without adequate determining principles, or is governed by no fixed rules or standards.” Painter v. Ballard, 237 W. Va. 502, 510, 788 S.E.2d 30, 38 (2016) (quoting Deese v. S.C. State Bd. of Dentistry, 332 S.E.2d 539, 541 (S.C. Ct. App. 1985)). We cannot approve of the practice of automatically selecting a 50-50 split in apportionment cases. Cf. Stout v. North Dakota Work. Comp. Bureau, 253 N.W.2d 429, 431 (N.D. 1977) (“We do not approve of this practice of arbitrarily selecting an apportionment figure of fifty percent in heart attack cases.“).
On the other hand, Dr. Guberman‘s report thoroughly explained the basis for his decision not to apportion, applying the AMA Guides:
In my opinion, [the 25% Whole Person Impairment] should entirely be apportioned for [the June 15, 2020] injury. Although imaging studies do reveal evidence of degenerative joint and disc disease of the lumbar spine, which was at least in part present before the current injury, so far as can be determined, the claimant would not have qualified for any impairment rating using either the Range of Motion Model or Table 85-20-C before the current injury. He did have occasional pain in his lumbar spine but that did not radiate into his legs, and he did not have numbness, tingling or weakness of his legs due to the low back pain before the current injury and was only intermittent and did not cause ongoing significant interference with activities of daily living, functional limitations or interference with work. Therefore, in my opinion, the claimant would not have received any impairment rating in regards to the lumbar spine before the current injury. Furthermore, even if one were to attempt to apportion for any preexisting condition, there is no objective medical, logical rationale for determining any specific portion of the impairment to apportion for any preexisting conditions. Therefore, in my opinion, the claimant receives a 25 percent impairment of the whole person for this injury.
The claimant previously received a 30 percent impairment of the whole person for this injury based on an independent medical evaluation performed by Dr. Mukkamala dated 6/9/2021. At that time, he also recommended a 25 percent impairment of the whole person of the claimant‘s lumbar spine from Table 85-20-C. However, as stated in the sixth paragraph of page 9 of his report he allocated “12[%] to the preexisting degenerative spondyloarthropathy and 13[%] to the compensable injury of 6/15/2020.” However, as mentioned above, there is no evidence the claimant would have had any impairment rating in regard to his lumbar spine before the current injury. Furthermore, degenerative spondyloarthropathy in and of itself would not entitle the claimant to any impairment rating using either the Range of Motion Model or Table 85-20-C. Furthermore, Dr. Mukkamala does not offer any rationale for why he split the impairment rating in half (and then rounded up from 12.5 to 13 percent impairment of the whole person for the injury).
Therefore, in my opinion, the entire 25 percent impairment of the whole person should be apportioned for this injury. Since the claimant has already received a 13 percent impairment of the whole person for this injury, I am recommending he receive an additional 12 percent impairment of the whole person for this injury in accordance with Rule 20, Section VII.
For all the above reasons, the judgment of the ICA must be reversed.9
IV. Conclusion
The judgment of the Intermediate Court of Appeals of West Virginia is reversed, and this case is remanded to the West Virginia Workers’ Compensation Board of Review to enter an order granting the Petitioner an additional 12% Permanent Partial Disability award for a total Permanent Partial Disability award of 25%.
Reversed and remanded with directions.
Notes
(c) In reviewing a decision of the Board of Review, the Supreme Court of Appeals shall consider the record provided by the board and give deference to the board‘s findings, reasoning, and conclusions, in accordance with subsections (d) and (e) of this section.
(d) If the decision of the board represents an affirmation of a prior ruling by both the commission and the Office of Judges that was entered on the same issue in the same claim, the decision of the board may be reversed or modified by the Supreme Court of Appeals only if the decision is in clear violation of constitutional or statutory provision, is clearly the result of erroneous conclusions of law, or is based upon the board‘s material misstatement or mischaracterization of particular components of the evidentiary record. The court may not conduct a de novo reweighing of the evidentiary record. If the court reverses or modifies a decision of the board pursuant to this subsection, it shall state with specificity the basis for the reversal or modification and the manner in which the decision of the board clearly violated constitutional or statutory provisions, resulted from erroneous conclusions of law, or was based upon the board‘s material misstatement or mischaracterization of particular components of the evidentiary record.
(e) If the decision of the board effectively represents a reversal of a prior ruling of either the commission or the Office of Judges that was entered on the same issue in the same claim, the decision of the board may be reversed or modified by the Supreme Court of Appeals only if the decision is in clear violation of constitutional or statutory provisions, is clearly the result of erroneous conclusions of law, or is so clearly wrong based upon the evidentiary record that even when all inferences are resolved in favor of the board‘s findings, reasoning, and conclusions, there is insufficient support to sustain the decision.
The court may affirm the order or decision of the agency or remand the case for further proceedings. It shall reverse, vacate, or modify the order or decision of the agency if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decision, or order are:
(1) In violation of constitutional or statutory provisions;
First, apportionment is “an exception to the general rule of compensability,” so once an employee has established entitlement to compensability, it should be the employer‘s burden to demonstrate that an exception applies. See Cowin & Co. v. Medina, 860 P.2d 535, 537-38 (Colo. App. 1992). Second, the employer should bear the burden of proof because it is the party that will benefit from a finding of apportionment. See Deschenes v. Transco, Inc., 288 Conn. 303, 953 A.2d 13, 25 n.18 (2008); see also Cowin, 860 P.2d at 538 (explaining that if an employee has established entitlement to compensation and there was no evidence of a non-occupational disease, then the default position would be no apportionment; the employer must therefore show the existence of a non-industrial disease for apportionment to be considered); cf. Koesling v. Basamakis, 539 P.2d 1043, 1046 (Utah 1975) (explaining that the “proponent of a proposition” generally has