SWVA, Inc. v. Birch

• Decision Date: 15 June 2016
• Docket Number: No. 14-0471,14-0471
• Citation: 787 S.E.2d 664,237 W.Va. 393
• Court: West Virginia Supreme Court
• Parties: SWVA, Inc., Employer Below, Petitioner v. Edward Birch, Claimant Below, Respondent

237 W.Va. 393

787 S.E.2d 664

SWVA, Inc., Employer Below, Petitioner

v.Edward Birch, Claimant Below, Respondent

No. 14-0471

Supreme Court of Appeals of West Virginia.

Submitted: January 26, 2016

Filed: June 15, 2016

Steven K. Wellman, Esq., Jenkins, Fenstermaker, PLLC, Huntington, West Virginia, Counsel for the Petitioner

Edwin H. Pancake, Esq., Maroney, Williams, Weaver & Pancake, PLLC, Charleston, West Virginia, Counsel for the Respondent

Lisa Warner Hunter, Esq., Michelle Rae Johnson, Esq., Pullin, Fowler, Flanagan, Brown & Poe, PLLC, Charleston, West Virginia, Attorneys for Amicus Curiae, The Defense Trial Counsel, of West Virginia

William B. Gerwig, III, Charleston, West Virginia, Pro Se Amicus Curiae

SYLLABUS BY THE COURT

Benjamin

, Justice:

In this workers' compensation case, the Petitioner, SWVA, Inc., appeals an April 18, 2014, final decision of the West Virginia Workers' Compensation Board of Review (“BOR”). The BOR affirmed a November 7, 2013, Order of the Workers' Compensation Office of Judges (“OOJ”), in which the OOJ reversed a November 15, 2011, claims administrator's decision to grant the claimant, Edward Birch, an 8% permanent partial disability (“PPD”) award. The OOJ granted an additional 5% PPD award for a total of 13%. On appeal, we asked the parties to answer the following question: what is the correct methodology for apportioning the level of impairment in workers' compensation cases involving preexisting conditions? Having fully considered the parties' arguments, the record before us on appeal, and applicable legal precedent, we reverse the BOR's order.¹

I. FACTUAL AND PROCEDURAL BACKGROUND

Mr. Birch was moving a piece of metal when he slipped on some grease and injured his lower back in March 2004. The claim was held compensable for a lumbar sprain

and backache.

Mr. Birch was examined by Dr. Marsha Bailey who found him to be at maximum medical improvement in regard to his compensable back injury. Dr. Bailey found Mr. Birch to fall under Category II-E of Table 75 of the American Medical Association's Guides to the Evaluation of Permanent Impairment (4th ed. 1993) (“AMA Guides”) for a total of 12% whole person impairment (“WPI”). Dr. Bailey found no impairment for abnormal range of motion of the lumbar spine as Mr. Birch's measurements were restricted by pain and considered invalid for rating purposes. Dr. Bailey placed Mr. Birch under Lumbar Category III of West Virginia Code of State Rules § 85-20-C (2006) (“Rule 20”).² However, Dr. Bailey found that a portion of Mr. Birch's impairment should be apportioned for the preexisting conditions of degenerative joint and disc disease. Dr. Bailey apportioned 4% of Mr. Birch's impairment to these preexisting conditions and recommended 8% whole person impairment for the compensable injury. Based upon Dr. Bailey's findings, the claims administrator granted Mr. Birch an 8% PPD award. Mr. Birch protested the award.

Mr. Birch was thereafter evaluated by Dr. Bruce Guberman. Dr. Guberman, like Dr. Bailey, found Mr. Birch to have 12% WPI under Table 75 of the AMA's Guides. Dr. Guberman also found Mr. Birch to have 13% whole person impairment for abnormal range of motion of the lumbar spine. At that point, Dr. Guberman determined that preexisting degenerative changes had likely contributed to Mr. Birch's range of motion abnormalities and apportioned these preexisting conditions at 6%. Dr. Guberman then subtracted the 6% from the 13% range of motion impairment for a total range of motion impairment of 7%. Dr. Guberman then combined the diagnosis-based 12% impairment with the 7% range of motion impairment using the Combined Values Chart in the AMA Guides to find a combined whole person impairment of 18%. Because this percentage of impairment exceeded the allowable impairment range under Category III of Rule 85-20-C, which is 10 to 13%, Dr. Guberman adjusted Mr. Birch's impairment rating to 13% WPI. Dr. Guberman opined that Dr. Bailey incorrectly apportioned impairment for preexisting degenerative changes from her final impairment rating under Rule 20. As noted above, Dr. Guberman apportioned for Mr. Birch's preexisting condition and deducted this percentage from the range of motion impairment rating before utilizing the combined values chart under the AMA Guides, and then determined the final whole person impairment rating under Rule 20.

By decision dated November 7, 2013, the OOJ reversed the claims administrator's decision and granted an additional 5% PPD for a total of 13% PPD relying on Dr. Guberman's recommendation. In doing so, the OOJ reasoned as follows:

Pursuant to W. Va. Code § 23–4–9b

and W. Va. C.S.R. § 85–20–64³ it is found that any apportionment for preexisting impairment should be made from a claimant's whole person impairment as determined under the range of motion model, and not from the final PPD rating as determined under Rule 20. W. Va. Code § 23–4–9b refers to both ascertainable impairment related to a pre-existing condition and the award of compensation; however, impairment and compensation are not synonymous. Impairment is a medical assessment based upon the AMA Guides, while permanent partial disability is a legal measure of the amount of compensation to which the claimant is entitled. According to the clear language of the statute, W. Va. Code § 23–4–9b provides for the apportionment of impairment related to a pre-existing injury, not the apportionment of permanent partial disability.

On April 18, 2014, the BOR affirmed the OOJ decision. SWVA appealed to this Court. Both SWVA and Mr. Birch ultimately filed supplemental briefs to address the following question posed by this Court: What is the correct methodology for apportioning the level of impairment in workers' compensation cases involving preexisting conditions?

II. STANDARD OF REVIEW

We indicated in Hammons v. West Virginia Office of Insurance Commissioner , 235 W.Va. 577, 582, 775 S.E.2d 458, 463 (2015)

, that “[t]he standard of review applicable to this Court's consideration of workers' compensation appeals from the Board of Review is set forth in W. Va. Code §§ 23–5–15(b–d) (2005) (Repl. Vol. 2010).” Because the BOR decision at issue represents a reversal of the claims administrator, subsections (b) and (d) are applicable in the instant case. These sections provides in pertinent part:

(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.

The sole issue in this case is legal in nature. “[W]e apply a de novo standard of review to questions of law arising in the context of decisions issued by the Workers' Compensation Appeal Board.” Justice v. W. Va. Office Ins. Comm'n , 230 W.Va. 80, 83, 736 S.E.2d 80, 83 (2012)

(citation omitted). With these standards in mind, we proceed to determine whether the BOR committed error in affirming the decision of the OOJ which reversed the decision of the claims administrator.

III. ANALYSIS

The issue in this case concerns the correct methodology for apportioning the level of impairment in workers' compensation cases involving preexisting conditions. Dr. Bailey, in her rating of the respondent's whole person impairment, subtracted the preexisting impairment at the end of the process after applying Rule 20. The method utilized by Dr. Guberman, and adopted by the OOJ, was to deduct any apportionment for preexisting impairment from the respondent's whole person impairment as determined under the AMA Guides or range of motion model earlier in the process and then determine the final permanent partial disability award under Rule 20. SWVA contends on appeal that pursuant to prior decisions of this Court and a plain reading of W. Va. Code § 23–4–9b

, the proper method of allocation is to subtract the preexisting impairment last after applying Rule 20, not before applying Rule 20.

This Court agrees with SWVA. We have rejected Dr. Guberman's methodology of allocating preexisting injuries in several recent memorandum decisions.⁴ For example, in Varney v. Brody Mining LLC , No. 11–1483, 2014 WL 2619508 (W. Va. June 11, 2014)

(memorandum decision), the claims administrator held the claim compensable for sprain/strain of the neck and contusion of multiple sites and granted the claimant a 3% PPD award. The OOJ reversed the claims administrator's decision and granted an 8% PPD award in addition to a previous 5% PPD award. In doing so, the OOJ relied on a recommendation of Dr. Guberman in which he deducted the claimant's prior PPD award from his range of motion impairment rating prior to utilizing Rule 20.

The BOR concluded that the OOJ erred in relying on Dr. Guberman's recommendation. The BOR credited the recommendation of Dr. Randall L. Short who concluded that the deduction of prior PPD awards should be made after an evaluator has applied Rule 20. Dr. Short deducted the petitioner's prior 5% PPD award from the WPI and recommended that the claimant receive a 3% PPD award. The BOR concluded that the deduction of prior PPD awards should be performed after an evaluator applied Rule 20 and reinstated the claims administrators decision granting the claimant a 3% PPD award. This Court agreed with the reasoning and conclusions of the BOR and...