Murray Am. Energy v. Titus

• Docket Number: 24-4
• Decision Date: 14 January 2025
• Parties: Murray American Energy, Inc., Employer Below, Petitioner v. Connie Titus, Claimant Below, Respondent
• Court: West Virginia Supreme Court

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Murray American Energy, Inc., Employer Below, Petitioner v. Connie Titus, Claimant Below, Respondent

No. 24-4

Supreme Court of Appeals of West Virginia

January 14, 2025

(JCN 2018016155)(ICANo. 23-ICA-233)

MEMORANDUM DECISION

PetitionerMurray American Energy, Inc. appeals the November 1, 2023 decision of the West Virginia Intermediate Court of Appeals("ICA") affirming the May 4, 2023, decision of the Workers' Compensation Board of Review("Board of Review").In its decision, the Board of Review reversed the claim administrator's November 23, 2021, order granting an additional 0% permanent partial disability and granted the claimant an additional 9% for a total award of 27% permanent partial disability.RespondentConnie Titus filed a timely response.^[1] The issue on appeal is whether the Board of Review properly granted an additional 9% permanent partial disability.Upon our review, we determine that oral argument is unnecessary and that a memorandum decision affirming the ICA's decision is appropriate.SeeW.Va. R. App. P. 21.

In January 2018, the claimant, a coal miner, was involved in a mantrip collision in the course of and resulting from her employment.In a series of orders, the claim was held compensable for multiple injuries.The claimant underwent several independent medical evaluations with David L Soulsby, M.D.In July 2018, Dr. Soulsby found that the claimant was at maximum medical improvement regarding the cervical and lumbar spines and the left shoulder.Using the American Medical Association's Guides to the Evaluation of Permanent Impairment(4th ed. 1993)("AMA Guides"), and West Virginia Code of State Rules§ 85-20(2006)("Rule 20"), Dr. Soulsby opined that the claimant had 4% impairment related to the cervical spine; 4% impairment related to the lumbar spine; and 5% impairment related to the left shoulder after apportionment due to preexisting conditions.Therefore, Dr. Soulsby found that the claimant's total impairment for the compensable injury was 13%.

In January 2019, Dr. Soulsby determined that the claimant was at maximum medical improvement regarding her right hip.Utilizing the AMA Guides, Dr. Soulsby opined that the claimant had 2% impairment related to the right hip.Dr. Soulsby combined this 2% impairment rating with the previously calculated impairment ratings and determined that the claimant had a total impairment of 15% for her compensable injury.In March 2019, Dr. Soulsby found that the claimant had 4% impairment related to her right knee.Dr. Soulsby combined this 4% impairment rating with the previously calculated impairment ratings and opined that the claimant had a total impairment of 18% related to the compensable injury according to the AMA Guides' combined values chart.In March 2019, the claim administrator granted the claimant an award of 18% permanent partial disability.

In November 2021, the claimant underwent an independent medical evaluation with Joseph E. Grady II, M.D.Using the AMA Guides and Rule 20, Dr. Grady found that 4% impairment related to the cervical spine, 4% impairment related to the lumbar spine, 9% impairment related to the left shoulder after apportionment due to preexisting conditions.Combining the remaining impairment ratings, Dr. Grady determined that the claimant had a total impairment of 18% for the compensable injury.The claim administrator granted an additional award of 0% permanent partial disability based on Dr. Grady's report.

The claimant underwent an independent medical evaluation with Bruce A. Guberman, M.D., in June 2022.Using the AMA Guides and Rule 20, Dr. Guberman found that the claimant had 8% impairment related to the cervical spine, 8% impairment related to the lumbar spine, and 13% impairment related to the left shoulder.Combining these impairments, Dr. Guberman determined that the claimant had a total impairment of 27% for the compensable injury.Dr. Guberman did not apportion any impairment due to preexisting conditions.

In May 2023, the Board of Review found that Dr. Guberman's report was more persuasive than the reports of Drs. Soulsby and Grady and granted the claimant an additional 9% for a total award of 27% permanent partial disability.In Murray American Energy, Inc. v. Titus, No. 23-ICA-233, 2023 WL 7203393(W.Va. Ct. App.Nov. 1, 2023)(memorandum decision), the ICA affirmed, finding that the Board did not clearly err in determining that Dr. Guberman authored the more persuasive report.Id. at *3.

This Court reviews questions of law de novo, while we accord deference to the lower tribunal's findings of fact unless the findings are clearly wrong.SeeSyl. Pt. 3, Duff v. Kanawha Cnty. Comm'n, 250 W.Va. 510, 905 S.E.2d 528(2024);Conley v. Worker's Comp. Div., 199 W.Va. 196, 199, 483 S.E.2d 542, 545(1997)(noting that, while legal determinations are reviewed de novo, the "clearly wrong" and "plainly wrong" standards of review apply to evidentiary findings to which deference is given if supported by substantial evidence).Applicable here, West Virginia Code § 23-4-9b provides that, unless there is a permanent total disability, a preexisting disease or injury "shall not be taken into consideration in fixing the amount of compensation allowed by reason of the subsequent injury."However, West Virginia Code § 23-4-9b requires not only a preexisting condition, but also a definitely ascertainable impairment resulting from the preexisting condition for apportionment to occur.Duff, 250 W.Va. at ____, 905 S.E.2d at 537.

On appeal, the employer argues that the medical evidence supports the decisions of Drs. Soulsby and Grady to apportion some of the claimant's...