William L. Gill v. City of Charleston , 236 W. Va. 737 ( 2016 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2016 Term
_____________
FILED
No. 14-0983
February 10, 2016
released at 3:00 p.m.
_____________ RORY L. PERRY, II CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
WILLIAM L. GILL,
Claimant Below, Petitioner
V.
CITY OF CHARLESTON,
Respondent Below, Respondent
____________________________________________________________________
Appeal from West Virginia Workers’ Compensation
Board of Review
Claim No. 2012026734
AFFIRMED
____________________________________________________________________
Submitted: January 26, 2016
Filed: February 10, 2016
Patrick K. Maroney James W. Heslep
Maroney, Williams, Weaver & Pancake, PLLC Steptoe & Johnson PLLC
Charleston, West Virginia Charleston, West Virginia
Attorney for Petitioner Attorney for Respondent
William B. Gerwig, III Lisa Warner Hunter
Charleston, West Virginia Michelle Rae Johnson
Pro Se Amicus Curiae Pullin, Fowler, Flanagan,
Brown & Poe, PLLC
Charleston, West Virginia
Attorneys for Amicus Curiae,
The Defense Trial Counsel of
West Virginia
JUSTICE DAVIS delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “In order for a claim to be held compensable under the Workmen’s
Compensation Act, three elements must coexist: (1) a personal injury (2) received in the
course of employment and (3) resulting from that employment.” Syllabus point 1, Barnett
v. State Workmen’s Compensation Commissioner, 153 W. Va. 796, 172 S.E.2d 698 (1970).
2. Pursuant to W. Va. Code § 23-4-1g(a) (2003) (Repl. Vol. 2010), a
claimant in a workers’ compensation case must prove his or her claim for benefits by a
preponderance of the evidence.
3. A noncompensable preexisting injury may not be added as a
compensable component of a claim for workers’ compensation medical benefits merely
because it may have been aggravated by a compensable injury. To the extent that the
aggravation of a noncompensable preexisting injury results in a discreet new injury, that new
injury may be found compensable.
i
Davis, Justice:
This appeal was filed by William L. Gill (“Mr. Gill”) from an adverse final
order of the Workers’ Compensation Board of Review (“the Board”). The Board’s order
reversed a decision by the Workers’ Compensation Office of Judges (“the OOJ”), which had
added four new diagnoses to Mr. Gill’s initial compensable claim for a lumbar and thoracic
sprain injury. The Board found that the additional four diagnoses were noncompensable
preexisting conditions. In this appeal, Mr. Gill seeks to have the OOJ’s decision reinstated.1
After a careful review of the briefs, the record submitted on appeal, and listening to the
argument of the parties, we affirm.
I.
FACTUAL AND PROCEDURAL HISTORY
The facts of this case involve injuries to Mr. Gill’s back. Mr. Gill’s first back
injury appears to have occurred in 1985, when he was 18 years old. This noncompensable
injury occurred “when he lifted the door handle up on his car and felt back pain[.]”2 In 1992,
Mr. Gill fell approximately 80 feet while rock climbing. Some of the noncompensable
injuries sustained in the fall included: fractured pelvis, fractured sacrum, fractured pedicle,
1
We wish to acknowledge the amicus briefs filed in this matter. The Court has
taken into consideration the arguments made on behalf of the City of Charleston by the
amicus brief of Defense Trial Counsel of West Virginia and the amicus brief filed by William
B. Gerwig, III.
2
The exact nature of the injury is not known.
1
fracture of the left tibia and fibula, and injury to internal organs. Mr. Gill’s injuries appear
to have been treated at a hospital in Pittsburgh, Pennsylvania. In spite of the severe back
injuries he sustained in 1992, Mr. Gill passed the firefighters’ physical tests in 2002 and was
hired by the City’s fire department.3
Mr. Gill received treatment at Short Chiropractic, Inc. (“chiropractic clinic”),
for back problems associated with the 1992 fall. Treatment notes from the chiropractic clinic
in April of 2004 indicated that Mr. Gill was being treated for lumbar radiculopathy (diagnosis
code 724.3), lumbar disc degenerative disc disease (diagnosis code 722.52), lumbar disc
displacement (diagnosis code 722.10), and lumbar facet syndrome (diagnosis code 724.8).
Mr. Gill was treated by the chiropractic clinic for thoracic and lumbar complaints during the
years 2005, 2006, 2008, 2009, 2011, and 2012. In treatment notes, dated February 7, 2012,
the chiropractic clinic indicated Mr. Gill was being treated for thoracalgia (diagnosis code
724.1), sciatica (diagnosis code 724.3), degeneration of lumbar or lumbosacral IVD
(diagnosis code 722.52), and muscle spasm (diagnosis code 728.85).
On February 8, 2012, Mr. Gill injured his back while lifting a practice dummy
during firefighter training. This injury was ruled compensable and diagnosed as lumbar
3
In 2003, Mr. Gill allegedly sustained a back injury while playing basketball,
purportedly as part of his employment physical training. The extent of the injury is not
known, and Mr. Gill did not file a workers’ compensation claim for the injury.
2
(diagnosis code 847.2) and thoracic (diagnosis code 847.1) sprain. In March of 2012, Dr.
David Weinsweig examined Mr. Gill and reported that “he suffers from pain temporally
related to the injury at work with degenerative disc disease and an element of radiculopathy.”
In June of 2012, Dr. Bill Hennessey performed an independent medical evaluation of Mr.
Gill. Dr. Hennessey reported that Mr. Gill had reached maximum medical improvement and
had made a full recovery from the compensable injury without any impairment. As a result
of Dr. Hennessey’s evaluation, in July of 2012 Mr. Gill was denied a permanent partial
disability award for the compensable injury.
In August of 2012, the chiropractic clinic requested authorization for injections
to treat Mr. Gill for neuritis/radiculitis (diagnosis code 724.4), sciatica (diagnosis code
724.3), degeneration of lumbar or lumbosacral IVD (diagnosis code 722.52), and facet
syndrome (diagnosis code 724.8). The Claim Administrator denied the request based upon
Dr. Hennessey’s report.4 Mr. Gill protested the denial of the injections to the OOJ.
While the case was pending before the OOJ, an independent medical evaluation
4
The Claim Administrator had issued orders in July of 2012 that denied
authorization for lumbar epidural injections and additional chiropractic treatment. The OOJ
reversed the orders and held that the requested treatment “was the result of a compensable
aggravation of preexisting conditions[.]” The Board reversed the OOJ decision and
remanded for further development of the record. The current status of the issues in that
litigation is not known.
3
was performed on Mr. Gill by Dr. P.B. Mukkamala. A medical opinion rendered by Dr.
Mukkamala in January of 2013 concluded that Mr. Gill’s compensable injury had reached
maximum medical improvement and did not aggravate his preexisting injuries.
The OOJ treated the request for authorization for injections for four diagnoses
as a request to add the four diagnoses as compensable components of the claim. The OOJ
eventually issued an order finding that the four diagnoses, neuritis/radiculitis (diagnosis code
724.4), sciatica (diagnosis code 724.3), degeneration of lumbosacral IVD (diagnosis code
722.52), and facet syndrome (diagnosis code 724.8), were compensable. The OOJ reasoned
as follows:
The record designation demonstrates that the claimant’s injury
of February 8, 2012, catalyzed or precipitated a disabling
aggravation of his preexisting lumbar spine condition. Such
aggravation of a preexisting condition by a compensable
injury . . . necessarily sanctions the inclusion of the aggravated,
preexisting condition as a compensable element of the injury[.]
The City appealed the OOJ decision to the Board. By order entered August 29,
2014, the Board reversed the decision of the OOJ and concluded “that the additional
diagnoses are not compensable components of the claim.” Mr. Gill filed this appeal.5
5
While the case was pending, this Court asked the parties to brief the following
issue: “Whether aggravations of pre-existing conditions by work-related injuries are
compensable?” The parties filed supplemental briefs in response to the question.
4
II.
STANDARD OF REVIEW
The standard of review applicable to this Court’s consideration of workers’
compensation appeals has been set out under W. Va. Code § 23-5-15 (2005) (Repl. Vol.
2010), in relevant part, as follows:
(b) 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[.]
....
(d) 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 not conduct a de novo re-weighing of the
evidentiary record. . . .
See Hammons v. West Virginia Office of Ins. Comm’r, 235 W. Va. 577, ___, 775 S.E.2d 458,
463-64 (2015). As we previously recognized in Justice v. West Virginia Office Insurance
Commission, 230 W. Va. 80, 83, 736 S.E.2d 80, 83 (2012), we apply a de novo standard of
review to questions of law arising in the context of decisions issued by the Board. See also
Davies v. West Virginia Office of Insurance Comm’r, 227 W. Va. 330, 334, 708 S.E.2d 524,
5
528 (2011). With these standards in mind, we proceed to determine whether the Board
committed error in reversing the decision of the OOJ.
III.
DISCUSSION
In this proceeding, Mr. Gill asks this Court to reinstate the OOJ decision that
added four preexisting noncompensable conditions to his claim. Before we address the
merits of Mr. Gill’s appeal, we first must place this case in its proper context.
To begin, the record is clear in showing that no physician requested the
diagnostic codes 724.4 (neuritis/radiculitis), 724.3 (sciatica), 722.52 (degeneration of
lumbosacral IVD), and 724.8 (facet syndrome) be added as compensable elements of Mr.
Gill’s February 8, 2012, injury. The chiropractic clinic requested authorization from the
Claim Administrator to provide Mr. Gill with injections to treat only the four diagnostic
codes. After the request was denied by the Claim Administrator, Mr. Gill protested the denial
of authorization for the injections. Subsequent to the protest being filed with the OOJ, the
OOJ sua sponte treated the protest as a request to add the four diagnostic codes to the
compensable claim. It does not appear that an objection was made by the City, at the
administrative level, to the OOJ’s conversion of the protest. In the appeal to this Court, the
City has pointed out that no formal request was ever made to add the four diagnostic codes
6
to the claim.6 Insofar as no objection was made at the administrative level, we find the issue
waived for purposes of this appeal. See Hoover v. West Virginia Bd. of Med., 216 W. Va.
23, 26, 602 S.E.2d 466, 469 (2004) (“[I]f a party fails to properly raise a nonjurisdictional
‘defense during [an] administrative proceeding, that party waives the defense and may not
raise it on appeal.’” (quoting Fruehauf Trailer Corp. v. Workers’ Comp. Appeal Bd., 784
A.2d 874, 877 (Pa. Cmwlth. 2001))). Even though the issue has been waived, it helps to
explain, as will be shown, why there is a lack of medical evidence to support the OOJ
decision.
This Court has set out the framework for finding a workers’ compensation
claim compensable as follows: “In order for a claim to be held compensable under the
Workmen’s Compensation Act, three elements must coexist: (1) a personal injury (2)
received in the course of employment and (3) resulting from that employment.” Syl. pt. 1,
Barnett v. State Workmen’s Comp. Comm’r, 153 W. Va. 796, 172 S.E.2d 698 (1970). See
also W. Va. Code § 23-4-1(a) (2008) (Repl. Vol. 2010) (“[W]orkers’ compensation benefits
shall be paid the Workers’ Compensation Fund, to the employees of employers subject to this
chapter who have received personal injuries in the course of and resulting from their covered
employment[.]” (emphasis added)). All three of these elements must be satisfied for an injury
to be held compensable.
6
Counsel for the City in this appeal was not counsel below.
7
In the instant proceeding, the record is clear in showing that the four diagnostic
codes added by the OOJ were conditions that Mr. Gill was being treated for prior to the
occurrence of the compensable injury of February 8, 2012. The OOJ’s order specifically
stated that “the requested diagnostic codes . . . were also part of the claimant’s diagnostic
portrait prior to the compensable injury[.]” In view of this fact, we find as a matter of law
that the four diagnostic codes were not compensable injuries. We have long held that “[i]n
determining whether an injury resulted from a claimant’s employment, a causal connection
between the injury and employment must be shown to have existed.” Syl. pt. 3, Emmel v.
State Comp. Dir., 150 W. Va. 277, 145 S.E.2d 29 (1965). No such causal connection with
the four diagnostic codes was shown below or in this appeal.
Having determined that the four diagnostic codes were not compensable
injuries, we must determine whether any basis existed for the OOJ to rule that these
diagnoses were compensable. In making the compensability determination, the OOJ found
as follows:
[T]he fact that the requested diagnostic codes . . . were also part
of the claimant’s diagnostic portrait prior to the compensable
injury, does not preclude their inclusion as compensable
elements of the injury due to their disabling exacerbation by the
compensable injury.
(Emphasis added). From this statement, it is clear that the OOJ found that (1) there was
sufficient evidence in the record to show that the compensable injury aggravated the four
8
preexisting diagnostic codes and (2) because of such aggravation, the preexisting injuries
could be added as compensable claims. We will address these two issues separately.
1. Evidence that compensable injury aggravated preexisting injuries. As
previously noted, the OOJ found that Mr. Gill presented sufficient evidence to show that his
compensable injury of February 8, 2012, aggravated his preexisting injuries. “We have
traditionally held that a workers’ compensation claimant has the burden of proving his or her
claim by proper and satisfactory proof.” Casdorph v. West Virginia Office Ins. Comm’r, 225
W. Va. 94, 99, 690 S.E.2d 102, 107 (2009) (citation omitted). However, pursuant to W. Va.
Code § 23-4-1g(a) (2003) (Repl. Vol. 2010), a claimant in a workers’ compensation case
must prove his or her claim for benefits by a preponderance of the evidence. See City of
Wheeling v. Marriner, No. 14-0498, 2015 WL 465652, at *3 (W. Va. Feb. 3, 2015)
(memorandum decision) (“In light of the preponderance of the evidence standard set forth
in West Virginia Code § 23-4-1g (2003), [the Board] held that Mr. Marriner was entitled to
a 10% permanent partial disability award.”); Sheets v. West Virginia Office of Ins. Comm’r,
No. 11-0100, 2012 WL 3023404, at *1 (W. Va. June 27, 2012) (memorandum decision)
(“Mr. Sheets is entitled to a 6% permanent partial disability award based on the
preponderance of the evidence standard contained in West Virginia Code § 23-4-1g
(2003).”). The record does not support the OOJ’s conclusion that Mr. Gill carried his
burden.
9
The only medical evidence relied upon by the OOJ to find that the four
diagnostic codes were aggravated by the compensable injury was a statement by Dr.
Weinsweig in a March 2012 report. In a treatment note, Dr. Weinsweig reported that Mr.
Gill “suffers from pain temporally related to the injury at work with degenerative disc disease
and an element of radiculopathy.” The OOJ interpreted this statement to mean that Dr.
Weinsweig “opined that the claimant’s current condition was temporarily related to the
compensable injury.” The OOJ’s interpretation is misleading.
When Dr. Weinsweig examined Mr. Gill in March of 2012, it was only a few
weeks after the compensable injury of February 8, 2012. Thus, the pain Dr. Weinsweig
referred to was pain “temporally related” to the compensable injury. This pain was consistent
with the expected duration of the compensable injury. As will be shown, Mr. Gill’s
compensable injury was expected to be treated for up to four weeks, and not to exceed eight
weeks. The OOJ, for reasons unknown, interpreted Dr. Weinsweig’s statement to mean that
the pain associated with the August 2012 request for authorization for injections by the
chiropractic clinic was the same pain that Dr. Weinsweig noted in March of 2012. The
record does not support such an interpretation.
In June of 2012, Dr. Hennessey performed an independent medical evaluation
of Mr. Gill. In his report, Dr. Hennessey made the following relevant findings:
10
2. Mr. Gill has reached maximum medical improvement in
regard to his right thoracic and lumbar strains of
02/08/12. There is insufficient objective medical
evidence of any residual physical impairment. He has
made a full recovery.
3. Mr. Gill has a very significant medical history of
pre-existing back pain dating back to 18 years of age. At
about 300 pounds, he is expected to have back pain.
Approximately a 100 pound weight loss is recommended.
Such weight loss would also very likely improve his
longevity in addition to most certainly eliminating his
hypertension and his need for blood pressure medication.
4. Treatment. No further medical treatment is
recommended. . . . Furthermore, as per West Virginia
Rule 20, it is noted in regard to spine injuries, such as
those of the low back pain that “the estimated duration of
care is 0-4 weeks; not to exceed 8 weeks[.]” He is well
beyond this time frame. . . .
5. Physical capacities. In the absence of any physical
impairment, by definition, there is no applicable
disability. . . . Furthermore, in regard to his area of pain
which is in the lowest right thoracic region (flank) he has
the same thoracic spine MRI findings now as he did back
in 2008 and he can work with the same anatomy in 2012
as he did in 2008, 2009, 2010, 2011 and early 2012.
It is clear from Dr. Hennessey’s report that Mr. Gill did not have any pain from his
compensable injury in June of 2012, and that the pain he was experiencing was the same pain
he had before the compensable injury. In other words, Dr. Hennessey reported that the
preexisting injuries were not aggravated by the compensable injury.
The conclusion reached by Dr. Hennessey also was reached by Dr. Mukkamala
11
in his report of January 2013. Dr. Mukkamala’s report set out the following relevant
findings:
1. Has the claimant reached maximum medical improvement
with regard to the injury of 2/8/2012?
I conclude that the claimant has reached maximum degree of
medical improvement with relation to the compensable injury
dated 2/8/2012.
2. Is the claimant in need of additional treatment, specifically
injections and continued chiropractic care, as a result of the
injury on 2/8/2012?
It is my professional opinion that the claimant does not require
any additional treatment other than a home exercise program,
There is no indication for any additional chiropractic treatment.
3. What conditions, if any, does the claimant have directly
resulting from the injury of 2/8/2012 other than the compensable
lumbar and thoracic sprain/strains?
I conclude that the claimant had 847.1 thoracic sprain and 847.2
lumber sprain resulting from the compensable injury dated
2/8/1012. . . . There were no other conditions caused by this
compensable injury. . . .
It is clear that Dr. Mukkamala found that the compensable injury resolved itself and that it
did not aggravate any preexisting injuries.
In summation, Mr. Gill failed to produce any medical evidence that his
compensable injury of February 8, 2012, aggravated his preexisting noncompensable injuries.
The only medical evidence in the record submitted in this appeal that addressed the issue of
12
the impact of the compensable injury on preexisting injuries was provided by Dr. Hennessey
and Dr. Mukkamala. Both physicians concluded that the compensable injury did not
aggravate the preexisting injuries.
The conclusion we have reached on this issue also was addressed in Johnson
v. Advanced Diesel Technologies, LLC, No. 14-0068, 2015 WL 2166822, at *2 (W. Va. May
7, 2015) (memorandum decision). In Johnson, the claimant injured his back on June 17,
2011, while at work, and filed a claim for workers’ compensation benefits. The claim was
held compensable for a lumbar strain. The claimant underwent numerous examinations
because of pain that was not consistent with the compensable injury. In spite of such
complaints of pain, the claimant was eventually found to have reached maximum medical
improvement related to his compensable lumbar sprain. A physician subsequently submitted
a request that displacement of lumbar intervertebral disc be added as a compensable
condition of the claim. This request was denied on the grounds that the injury was a
preexisting condition that was not aggravated by the compensable lumbar strain. On appeal,
this Court affirmed as follows:
Mr. Johnson has not demonstrated that he suffered displacement
of lumbar or unspecified intervertebral discs. The imaging
studies in the record indicate that Mr. Johnson’s L3-4 and L4-5
disc bulges pre-existed the June 17, 2011, injury. . . . The
evidence in the record further indicates that this pre-existing
condition was not aggravated by the June 17, 2011, injury
because his disc protrusions were symptomatic immediately
prior to the injury in this claim. Although Mr. Johnson’s
13
requests include two distinct diagnosis codes, in its February 5,
2014, Order, the Office of Judges correctly determined that both
diagnoses referred to the same pre-existing condition.
Johnson, 2015 WL 2166822, at *3. See also Destefano v. Severstal Wheeling, Inc., No. 12­
0002, 2013 WL 5989270, at *3 (W. Va. Nov. 7, 2013) (memorandum decision) (“The
evidence in the record shows that Mr. Destefano did not suffer an aggravation of his
pre-existing degenerative disc disease as a result of his compensable injury.”).
2. Finding noncompensable preexisting injuries to be compensable when
aggravated by a compensable injury. We have concluded that no evidence supported the
determination of the OOJ that Mr. Gill’s compensable injury aggravated his preexisting
injuries. Because of this conclusion, ordinarily there would be no need to reach the second
issue resolved by the OOJ. That is, the determination by the OOJ that, as a result of the
compensable injury aggravating the preexisting injuries, the preexisting injuries can be added
as compensable injuries. This erroneous finding by the OOJ was the basis of this Court’s
request that the parties brief the following issue: “Whether aggravations of pre-existing
conditions by work-related injuries are compensable?” Insofar as this Court asked the parties
to brief the question, we will address it in the context of the erroneous ruling of the OOJ.
In finding that noncompensable preexisting injuries could be added to a claim
as compensable injuries, when they are aggravated by a compensable injury, the OOJ relied
14
upon the decisions in Charlton v. State Workmen’s Compensation Commissioner, 160 W. Va.
664, 236 S.E.2d 241 (1977), and Jordan v. State Workmen’s Compensation Commissioner,
156 W. Va. 159, 191 S.E.2d 497 (1972). Neither case supported the OOJ’s conclusion on
this issue.
To begin, in Charlton the claimant developed ulcerated feet as a result of
working in mine water containing magnetite, sulphuric acid, grease, oil, and kerosene. The
claimant filed a workers’ compensation claim as a result of his ulcerated feet. The claim was
denied because the claimant had a preexisting noncompensable blood vessel disease known
as Buerger’s Disease. The claim was denied even though the evidence showed that the
claimant’s ulcerated feet may have resulted from an aggravation of the Buerger’s Disease.
On appeal, this Court reversed. In doing so, we relied upon two previous decisions rendered
by this Court. Charlton noted that, in Hall v. Compensation Commissioner, 110 W. Va. 551,
159 S.E. 516 (1931), this Court held:
“The fact that an employee, injured in performing
services arising out of and incidental to his employment, was
already afflicted with a progressive disease that might some day
have produced physical disability, is no reason why the
employee should not be allowed compensation, under
Workmen’s Compensation Act, for the injury which, added to
the disease, superinduced physical disability.”
Charlton, 160 W. Va. at 667, 236 S.E.2d at 243 (quoting Syl., Hall, 110 W. Va. 551, 159
S.E. 516). The decision in Charlton also cited to Manning v. State Compensation
15
Commissioner, 124 W. Va. 620, 22 S.E.2d 299 (1942), where it was held:
“A diseased workman who in the course of and resulting
from his employment receives an injury, which aggravates or
accelerates the disease, to the extent of causing a disability
sooner than would otherwise have occurred, is entitled to
compensation from Workmen’s Compensation Fund.”
Charlton, 160 W. Va. at 667, 236 S.E.2d at 243 (quoting Syl. pt. 3, Manning, 124 W. Va.
620, 22 S.E.2d 299).
In the instant case, the decision in Charlton does not support the decision of
the OOJ to add four preexisting back conditions as compensable components of Mr. Gill’s
claim. This is because Charlton did not state that the preexisting Buerger’s Disease was a
compensable injury. Instead, Charlton held that the claim of ulcerated feet was compensable,
even though it may have resulted only because of the noncompensable disease. Assuming,
for the sake of argument, that Mr. Gill’s lumbar and thoracic injuries on February 8, 2012,
resulted only because of his preexisting injuries, Charlton would require adding only the
lumbar and thoracic injuries as compensable claims. Thus, Charlton did not support the
decision of the OOJ to add the preexisting injuries as compensable injuries.
In the Jordan decision relied upon by the OOJ, the claimant alleged that he
injured his back while lifting a box at work. At the time of the injury, the claimant had a
noncompensable preexisting back injury. At the administrative level it was determined that
16
the claimant did not suffer a compensable injury at work. On appeal, this Court affirmed
after concluding that the evidence was conflicting as to whether the claimant actually
sustained an injury at work. The opinion went on to discuss the issue of a work injury and
a preexisting injury:
This Court has often recognized that a preexisting
infirmity of an employee does not disqualify him from
prosecuting a successful claim for compensation based upon a
new injury arising from his employment. . . . But where there
is evidence of a preexisting like injury, his new claim will not be
treated as compensable unless it is directly attributable to a
definite, isolated and fortuitous occurrence, that is to say, from
a definable incident resulting from his employment. The
preexisting condition . . . does not dispense with the necessity of
showing that the injury was actually caused by an accident or
injury received in the course of and arising from the
employment. . . . Our statute so requires. . . .
Although recognizing that the employer must take the
employee as he finds him–with all of his attributes and all of his
previous infirmities, it is also axiomatic that the employer, by
subscribing to the workmen’s compensation fund, does not
thereby become the employee’s insurer against all ills or injuries
which may befall him. . . .
Jordan, 156 W. Va. at 165-66, 191 S.E.2d at 501 (internal quotations and citations omitted).
Although the decision in Jordan recognized that a compensable injury cannot be denied
because of the existence of a noncompensable preexisting injury, that case rejected the notion
that a noncompensable preexisting injury could, in and of itself, be deemed compensable.
Nothing in Jordan supported the decision of the OOJ to add Mr. Gill’s preexisting injuries
as compensable components of the claim.
17
In the recent decision in AT&T Mobility Services, LLC v. Spoor, No. 14-0396,
2015 WL 6840126 (W. Va. Nov. 4, 2015) (memorandum decision), we applied Charlton and
Jordan to uphold the compensability of injuries occurring because of a preexisting condition.
In AT&T, the claimant, while standing, injured her back when she merely turned around to
answer a question by a co-worker. The claimant was diagnosed with cervical, thoracic, and
lumbar sprain, as well as a right knee sprain. The Claim Administrator rejected the claim.
The OOJ reversed and found that the claimant was injured during the course of and as a
result of her employment. The Board affirmed. The employer appealed and argued that the
claimant had a preexisting back problem that caused the injuries and therefore
compensability could not be found. We affirmed the compensability determination after
citing to Charlton and Jordan for the proposition that a preexisting injury does not preclude
a new compensable injury from arising. We stated that “[b]ecause the evidence establishes
that she was injured in the course of and as a result of her employment, the Office of Judges
and Board of Review were correct in holding the claim compensable for a cervical strain,
thoracic spine strain, lumbar strain, and a right knee injury.” AT&T, 2015 WL 6840126, at
*2. See also Robinson v. General Glass Co., No. 14-0643, 2015 WL 6844975, at *4 (W. Va.
Nov. 4, 2015) (memorandum decision) (“While there was ample evidence of previous back
and hip problems, this Court has consistently held that a preexisting condition will not bar
a claimant from receiving workers’ compensation benefits for an injury that occurs in the
course of and as a result of their employment.”); Johnson v. Mid-Ohio Valley Transit Auth.,
18
Inc., No. 14-0152, 2014 WL 6461647, at *2 (W. Va. Nov. 14, 2014) (memorandum decision)
(“The Office of Judges found that the evidence of record demonstrating the existence of
pre-existing neck pain fails to prove that Mr. Johnson did not sustain a new work-related
injury to his neck on October 14, 2011.”); Fulton v. West Virginia Office of Ins. Comm’r, No.
101267, 2012 WL 3176364, at *2 (W. Va. June 14, 2012) (memorandum decision) (“[A]
claim may be held compensable when a work-related injury aggravates a preexisting
condition.”).
Mr. Gill also has cited to the decision in Dunlap v. State Workmen’s
Compensation Commissioner, 152 W. Va. 359, 163 S.E.2d 605 (1968), as support for the
decision of the OOJ. In Dunlap, the claimant injured her back at work while lifting a one
or two pound cafeteria tray. The injury was ruled compensable as a back sprain. The
employer appealed the compensability ruling. This Court found that there was evidence that
the claimant had a prior back injury. However, we affirmed the compensability ruling
because it did “not appear from the record that the diagnoses of low back strain or sprain
could have been confused with the preexisting condition disclosed by the X-ray report.”
Dunlap, 152 W. Va. at 365, 163 S.E.2d at 609. Dunlap is consistent with Charlton and
Jordan and does not support the decision of the OOJ in this case.
The Charlton, Jordan, and Dunlap line of cases all recognize compensability
19
of an injury that may have occurred only because of a preexisting injury. These cases do not
stand for the proposition that merely because a noncompensable preexisting injury was
aggravated, it is fully compensable. It is only a new injury resulting from the aggravation of
the preexisting injury that becomes compensable. This proposition is consistent with our
apportionment statute, W. Va. Code § 23-4-9b (2003) (Repl. Vol. 2010).7
The apportionment statute is invoked when a claimant seeks a disability award.
This statute reads, in relevant part, as follows:
Where an employee has a definitely ascertainable
impairment resulting from an occupational or a nonoccupational
injury . . . and the employee thereafter receives an injury in the
course of and resulting from his or her employment, . . . 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. . . .
The apportionment “statute is designed to separate out preexisting disability from the
disability arising from the current compensable injury where less than total disability is
sought.” Gallardo v. Workers’ Comp. Comm’r, 179 W. Va. 756, 760 n.5, 373 S.E.2d 177,
181 n.5 (1988). That is, it “directs that any preexisting impairment be deducted from any
7
“The term ‘apportionment’ is used because the statute is designed to separate
out preexisting disability from the disability arising from the current compensable injury
where less than total disability is sought.” Gallardo v. Workers’ Comp. Comm’r, 179 W. Va.
756, 759 n.5, 373 S.E.2d 177, 180 n.5 (1988).
20
impairment resulting from an occupational injury.” Rose v. West Virginia Office of Ins.
Comm’r, No. 101552, 2012 WL 3205835, at *2 (W. Va. June 18, 2012) (memorandum
decision).
Insofar as the apportionment statute does not permit a claimant to receive a
permanent partial disability award for a noncompensable preexisting injury, it stands to
reason that such a preexisting injury cannot be ruled compensable. We therefore make clear,
and so hold, that a noncompensable preexisting injury may not be added as a compensable
component of a claim for workers’ compensation medical benefits merely because it may
have been aggravated by a compensable injury. To the extent that the aggravation of a
noncompensable preexisting injury results in a discreet new injury, that new injury may be
found compensable.8
8
Our holding is not applicable to this case because Mr. Gill failed to produce
any medical evidence to show that his compensable injury aggravated his preexisting injuries
and because Mr. Gill’s noncompensable preexisting injuries did not result in a discreet new
injury.
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IV.
CONCLUSION
In view of the foregoing, the order of the Workers’ Compensation Board of
Review, dated August 29, 2014, is affirmed.
Affirmed.
22