eNotes: Workers’ Compensation – June 2024 – West Virginia

SIGNIFICANT CASE SUMMARIES

West Virginia Case Summary

Logan-Mingo Area Mental Health, Inc. v. David M. Lester
Supreme Court of Appeals of West Virginia
No. 22-0275
Decided: June 10, 2024

Background

The Claimant sustained a prior 1999 lumbar spine and thoracic spine injury. He received a permanent partial disability (PPD) award based on 20% whole person impairment under the AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition. He was deemed at 14% for the lumbar spine and 7% for the thoracic, which under the Combined Values Chart of the Guides was reduced to 20%. The Claimant sustained a subsequent work injury in 2017 to multiple body parts, including the lumbar, thoracic, and cervical spines, left shoulder, and bilateral knees. Dr. Bruce Guberman performed an IME, finding the Claimant at 19% whole person impairment. The doctor found the Claimant at 8% lumbar spine, 7% thoracic, 8% cervical, 4% left shoulder, 4% right knee, and 4% left knee. As the impairment ratings for the 1999 lumbar and thoracic components were greater than the 2017 injury, the doctor deemed the Claimant at 0% for these body parts. For the other body parts, impairment totaled 20%, which under the Combined Values Chart was reduced to 19%. The claim administrator obtained a medical expert records review. That physician disregarded the individual lumbar and thoracic ratings for the 1999 injury, with Dr. Guberman’s ratings totaling 30% impairment using the Combined Values Chart. As the Claimant was awarded 20% impairment for the 1999 injury, the Employer granted a 10% PPD award for the 2017 injury. The Claimant appealed to the Office of Judges, which affirmed the award. However, on further appeal the Board of Review reversed and granted 19% impairment based on Dr. Guberman’s report.

Holding

The Court reversed the Board of Review and reinstated the original PPD award of 10%. It held that when a Claimant has pre-existing, ascertained impairments to multiple body parts for a prior injury and then sustains new compensable injuries to the same body parts, the proper apportionment method is to determine the total unapportioned impairment for the subsequent injury using the Combined Values Chart. Then, the total impairment from the prior injury must be deducted from the total, unapportioned impairment to calculate the PPD award for the subsequent injury.

Takeaway

This case is highly significant when multiple injury dates are involved regarding apportionment of impairment. It confirms that the Combined Values Chart is not to be used piecemeal for the same
individual body parts involved in multiple injuries. Rather, it is to be used for all body parts in the aggregate for each injury, with apportioned based strictly on impairment for the whole prior injury
under the Combined Values Chart.

Questions about this case can be directed to Evan J. Jenkins at (412) 926-1419 or ejenkins@tthlaw.com.