IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2016 Term
_______________ FILED
June 15, 2016
No. 14-0471 released at 3:00 p.m.
_______________ RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SWVA, Inc.,
Employer Below, Petitioner
v.
EDWARD BIRCH,
Claimant Below, Respondent
____________________________________________________________
Appeal from the West Virginia Workers’ Compensation
Board of Review
Claim No. 2004040678
REVERSED
____________________________________________________________
Submitted: January 26, 2016
Filed:
-XQH
Steven K. Wellman, Esq. Edwin H. Pancake, Esq.
Jenkins, Fenstermaker, PLLC Maroney, Williams, Weaver & Pancake,
Huntington, West Virginia PLLC
Counsel for the Petitioner Charleston, West Virginia
Counsel for the Respondent
Lisa Warner Hunter, Esq.
Michelle Rae Johnson, Esq. William B. Gerwig, III
Pullin, Fowler, Flanagan, Charleston, West Virginia
Brown & Poe, PLLC Pro Se Amicus Curiae
Charleston, West Virginia
Attorneys for Amicus Curiae,
The Defense Trial Counsel
of West Virginia
JUSTICE BENJAMIN delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “An appellate court should not overrule a previous decision recently
rendered without evidence of changing conditions or serious judicial error in
interpretation sufficient to compel deviation from the basic policy of the doctrine of stare
decisis, which is to promote certainty, stability, and uniformity in the law.” Syl. pt. 2,
Dailey v. Bechtel Corp., 157 W. Va. 1023, 207 S.E.2d 169 (1974).
2. The purpose of W. Va. Code § 23-4-9b (2003) is to disallow any
consideration of any preexisting definitely ascertainable impairment in determining the
percentage of permanent partial disability occasioned by a subsequent compensable
injury, except in those instances where the second injury results in total permanent
disability within the meaning of W. Va. Code § 23-3-1 (2005).
3. In fixing the amount of a permanent partial disability award for a
compensable injury suffered by a workers’ compensation claimant who has a
noncompensable preexisting definitely ascertainable impairment, the correct
methodology pursuant to W. Va. Code § 23-4-9b (2003) is to deduct the impairment
attributed to the preexisting injury from the final whole person impairment rating as
determined under West Virginia Code of State Rules § 85-20.
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.
1
We wish to acknowledge the amicus briefs filed in this matter. The Court has
taken into consideration the arguments made on behalf of SWVA, Inc. by the amicus
brief of the Defense Trial Counsel of West Virginia and the amicus brief filed by William
B. Gerwig, III who argues on behalf of the respondent.
1
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
2
West Virginia Code of State Rules § 85-20-C is a table of PPD ranges containing
five categories of criteria for rating impairment due to lumbar spine injury. Lumbar
Category I is 0% impairment of the whole person; Category II is 5% to 8%; Category III
is 10% to 13%; Category IV is 20% to 23%; and Category V is 25% to 28%.
2
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:
3
Pursuant to W. Va. Code § 23-4-9b and W. Va. C.S.R.
§ 85-20-643 it is found that any apportionment for pre
existing 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
3
West Virginia Code of State Rules § 85-20-64 provides, in pertinent part,
64.1.
Pursuant to W. Va. Code § 23-4-3b(b), the Commission or
Insurance Commissioner, whichever is applicable, hereby
adopts the following ranges of permanent partial disability for
common injuries and diseases. Permanent partial disability
assessments shall be determined based upon the range of
motion models contained in the Guides Fourth. Once an
impairment level has been determined by range of motion
assessment, that level will be compared with the ranges set
forth below. Permanent partial disability assessments in
excess of the range provided in the appropriate category as
identified by the rating physician shall be reduced to the [sic]
within the ranges set forth below:
64.2. Lumbar Spine Impairment.
The range of motion methodology for assessing permanent
impairment shall be used. However, a single injury or
cumulative injuries that lead to a permanent impairment to the
Lumbar Spine area of one's person shall cause an injured
worker to be eligible to receive a permanent partial disability
award within the ranges identified in Table § 85-20-C. The
rating physician must identify the appropriate impairment
category and then assign an impairment within the
appropriate range designated for that category.
4
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 Hammonds 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
5
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 issues 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 §
6
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
4
Pursuant to Rule 21(e) of the Rules of Appellate Procedure, in part,
“[m]emorandum decisions may be cited in any court or administrative tribunal in this
State.”
7
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 affirmed
the Board’s decision. See also Blair v. Mason Mining, LLC, No. 11-0537, 2014 WL
443367 (W. Va. February 4, 2014) (memorandum decision); Preece v. Health Mgm.t
Assocs. of WV, Inc., No. 11-1749, 2014 WL 485923 (W. Va. February 6, 2014)
(memorandum decision); Boone v. SWVA, Inc., No. 12-0221, 2014 WL 2619520 (W. Va.
June 11, 2014) (memorandum decision); Lowes Home Centers, Inc. v. Ramsey, No. 12
0752, 2014 WL 2619523 (W. Va. June 11, 2014) (memorandum decision); Kimble v.
UCB, No. 11-1685, 2014 WL 2619515 (W. Va. June 11, 2014) (memorandum decision);
Lewis v. Laurel Coal Corp., No. 12-0354, 2014 WL 2619521 (W. Va. June 11, 2014)
(memorandum decision); McClure v. Bluestone Coal Co., No. 13-0392, 2014 WL
2922795 (W. Va. June 27, 2014) (memorandum decision); Shreves v. Town of Rivesville,
No. 11-1463, 2014 WL 4977102 (W. Va. October 3, 2014) (memorandum decision);
Manyley v. Patriot Coal Co., No. 13-0509, 2014 WL 5258311 (W. Va. October 15, 2014)
(memorandum decision); Whitt v. Alcan Rolled Products-Ravenswood, LLC, No. 13
0643, 2014 WL 5326561 (W. Va. October 20, 2014) (memorandum decision); Roberts v.
Roberts, No. 13-0867, 2014 WL 5822656 (W. Va. November 10, 2014) (memorandum
decision); Young v. Heartland Emp’t Servs., LLC, No. 13-1169, 2014 WL 6839394 (W.
Va. December 3, 2014) (memorandum decision); Schultz v. Heartland Publ’ns, No. 13
1035, 2015 WL 3513887 (W. Va. June 1, 2015) (memorandum decision); Martin v.
8
Magnum Coal Co., No. 13-1026, 2015 WL 4546132 (W. Va. July 27, 2015)
(memorandum decision); and Thomas v. Pine Ridge Coal Co., LLC, No. 14-1194, 2015
WL 5446914 (W. Va. September 16, 2015) (memorandum decision).
We find that the doctrine of stare decisis supports our decision in this case.
This Court has held:
[a]n appellate court should not overrule a previous
decision recently rendered without evidence of changing
conditions or serious judicial error in interpretation sufficient
to compel deviation from the basic policy of the doctrine of
stare decisis, which is to promote certainty, stability, and
uniformity in the law.
Syl. pt. 2, Dailey v. Bechtel Corp., 157 W. Va. 1023, 207 S.E.2d 169 (1974). We discern
no changing conditions or serious judicial error in interpretation sufficient to compel
deviation from our recent memorandum decisions disapproving of Dr. Guberman’s
methodology at issue in this case.
This Court’s recent memorandum decisions are consistent with the plain
language of W. Va. Code § 23-4-9b (2003), which is the applicable statute in this case.
The pertinent language of W. Va. Code § 23-4-9b states:
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 [§ 23
9
3-1], 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 comensation
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.
It is clear from this language, and we hold, that the purpose of W. Va. Code § 23-4-9b
(2003) is to disallow any consideration of any preexisting definitely ascertainable
impairment in determining the percentage of permanent partial disability occasioned by a
subsequent compensable injury, except in those instances where the second injury results
in total permanent disability within the meaning of W. Va. Code § 23-3-1 (2005).5
Dr. Guberman’s methodology is not consistent with the purpose and
language of W. Va. Code § 23-4-9b. Both Dr. Bailey and Dr. Guberman found a
diagnoses-based 12% whole person impairment under the AMA Guides and both doctors
agreed that at least some portion of Mr. Birch’s overall lumbar impairment is attributable
5
In the recent case of Gill v. City of Charleston, ___ W. Va. ___, 783 S.E.2d 857
(2016), this Court dealt with the issue of preexisting aggravating injuries. In syllabus
point 3 of Gill, we held:
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.
10
to a non-compensable degenerative condition. However, unlike Dr. Bailey, Dr.
Guberman found that the restrictions in the respondent’s various ranges of motion were
valid and reproducible and not pain-restricted. Dr. Guberman found a total of 13%
impairment in various range of motion restrictions, and he allocated one-half of the
impairment for these restrictions to claimant’s pre-existing condition and rounded 6.5%
up to 7%. Combining the diagnosed-based 12% WPI under the AMA Guides with the
remaining 7% range of motion impairment, Dr. Guberman found Mr. Birch to have a
combined total of 18% WPI. Because this percentage falls beyond the allowed range for
Rule 20, he reduced the final rating to 13%. Significantly, this is the same maximum
award to which the respondent would have been entitled whether or not he had a
preexisting condition. Such a result is at odds with the purpose and language of W. Va.
Code § 23-4-9b, which is to disallow any consideration of any preexisting definitely
ascertainable impairment in arriving at the percentage of disability occasioned by a
subsequent injury. Therefore, Dr. Guberman’s methodology in determining the
respondent’s permanent partial disability in this case is deemed incorrect.
This Court likewise finds that the OOJ’s rationale for choosing Dr.
Guberman’s recommendation over that of Dr. Bailey is erroneous. In adopting Dr.
Guberman’s report as the most reliable and accurate assessment of the respondent’s
permanent partial disability in this claim, the OOJ reasoned that “impairment and
compensation are not synonymous.” The OOJ explained that
11
[i]mpairment 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.
In so reasoning, however, the OOJ misapprehended the applicable law
regarding the nature of permanent partial disability awards in West Virginia Workers’
Compensation law. According to W. Va. Code § 23-4-6(i) (2003), in part,
For the purposes of this chapter, with the exception of
those injuries provided for in subdivision (f) of this section
and in section six-b [§ 23-4-6b] of this article, the degree of
permanent disability other than permanent total disability
shall be determined exclusively by the degree of whole body
medical impairment that a claimant has suffered. . . . Once the
degree of medical impairment has been determined, that
degree of impairment shall be the degree of permanent partial
disability that shall be awarded to the claimant.
It is well-settled that “[w]orkers’ Compensation statutes dealing with the same subject
matter are to be read in pari materia.” Nelson v. Merritt, 176 W. Va. 485, 489 n.5, 345
S.E.2d 785, 788 n.5 (1985) (citation omitted). When W.Va. Code §§ 23-4-9b and -6(i)
are read together, these two statutes indicate that a claimant’s PPD award is based upon
the claimant’s whole-body medical impairment. This means that for the purpose of
compensating a claimant only in the amount that would have been allowable had the
claimant not had the preexisting impairment pursuant to W. Va. Code § 23-4-9b, there is
no legal distinction between a claimant’s degree of medical impairment and his or her
12
disability award. Therefore, we find that the OOJ’s decision drawing a distinction
between the terms “impairment” and “disability” herein is erroneous as a matter of law.
In light of the foregoing, we hold that in fixing the amount of a permanent
partial disability award for a compensable injury suffered by a workers’ compensation
claimant who has a noncompensable preexisting definitely ascertainable impairment, the
correct methodology pursuant to W. Va. Code § 23-4-9b (2003) is to deduct the
impairment attributable to the preexisting injury from the final whole person impairment
rating as determined under West Code of State Rules § 85-20.
Dr. Bailey’s methodology in determining the respondent’s PPD award
conforms to our holding above. Dr. Bailey found that Mr. Birch has a 12% impairment
under Rule 20. Dr. Bailey then apportioned 4% of Mr. Birch’s final impairment to his
preexisting condition leaving Mr. Birch with a final impairment rating of 8% for his
compensable injury. This Court’s reading of the OOJ decision indicates that the OOJ
rejected Dr. Bailey’s report primarily because of the OOJ’s legal finding that the
apportionment for preexisting impairment should be made from Mr. Birch’s WPI as
determined under the AMA Guides and range of motion model, not from the final PPD
rating as determined under Rule 20. As indicated above, the OOJ’s legal finding
constitutes error.
13
IV. CONCLUSION
Based on the foregoing, this Court finds that the April 18, 2014, final
decision of the BOR that affirmed the OOJ’s decision is clearly the result of an erroneous
conclusion of law. Accordingly, we reverse the decision of the BOR and reinstate the
claims administrator’s order of November 15, 2011, granting the respondent an 8% PPD
award.
Reversed.
14
SWVA, Inc. v. Edward Birch
Combined Opinion