West Virginia Chief Justice Armstead issues dissent to groundbreaking workers' comp ruling

The key syllabus point in the state Supreme Court’s ruling is that “under West Virginia Code § 23-4-9b (2003), the employer has the burden of proving apportionment is warranted in a workers’ compensation case. This requires the employer to prove the claimant ‘has a definitely ascertainable impairment resulting from’ a preexisting condition(s). This requires that employer prove that the preexisting condition(s) contributed to the claimant’s overall impairment after the compensable injury and prove the degree of impairment attributable to the claimant’s preexisting condition(s).”

Before now, that burden of proof on employers wasn’t specified, according to Justice John Hutchison’s majority opinion.

Armstead believes the majority got that wrong, and also got wrong their decision sending the case back in favor of the workers’ comp claimant.

In the case before the court, a Kanawha deputy assigned to the bomb squad hurt himself June 15, 2020, while lifting an explosives detector robot out of the back of a truck, according to the opinion.

Two doctors agreed that the deputy suffered a 25% permanent disability, but the physicians disagreed on whether all of that disability was due to the June 15, 2020, incident or whether some of the disability involved a preexisting condition.

The Board of Review sided with the doctor who would have had the state on the hook for just 13% disability instead of 25%. The Intermediate Court’s affirmation of that ruling then was appealed to the state Supreme Court by Charleston attorney William Gerwig III on behalf of the deputy.

The justices’ decision found that the doctor who apportioned the 25% basically in half — 13% for the incident and 12% for the pre-existing back condition — didn’t offer any reasoning or rationale that the preexisting condition did anything to stop the deputy from performing his work. The other doctor’s report, meanwhile, went into depth in explaining its findings, a point noted by most of the justices.

“By shifting the burden to the employer, the majority is treating apportionment as an affirmative defense. West Virginia Code § 23-4-9b does not contain any language providing that apportionment should be treated as an affirmative defense that the employer is responsible for asserting,” Armstead wrote.

Indeed, the legislature knows how to set forth when affirmative defenses apply and has done so explicitly in a number of statutes. See W. Va. Code § 48-5-403(b), in part, (‘[A]n allegedly guilty party who relies upon an affirmative defense must assert such defense by both pleadings and proof. Affirmative defenses include . . . condonation, connivance, collusion, recrimination, insanity and lapse of time.’) (Emphasis added) Unlike the foregoing, West Virginia Code § 23-4-9b does not include any specific mention that apportionment is an affirmative defense,” Armstead wrote.

“Moreover, requiring the employer to assert apportionment as an affirmative defense is inconsistent with the clear requirement that the employee bears the burden to prove that the impairment resulted from his or her employment. See Casdorph, 225 W. Va. at 99, 690 S.E.2d at 107.”

Justice Haley Bunn was on board with the majority opinion, but dissented in not sending the matter back to the Board of Review for further development of the record. Instead, the majority opinion sent the case back to the Board of Review “to enter an order granting [the deputy] an additional 12% permanent partial disability award for a total permanent partial disability award of 25%.”

“This case should have been remanded to permit the employer, the Kanawha County Commission, an opportunity to present evidence to meet its newly established burden of proof, and to allow the tribunals who are tasked with granting disability awards in workers’ compensation cases to consider, in the first instance, any new evidence presented in light of the guidance provided in the majority opinion,” Bunn wrote.

Armstead, meanwhile, thought the Board of Review and Intermediate Court got it right. He cited medical records that he said showed the workers’ compensation claimant had been treated for lower back pain and stiffness since 1999. Also, in the two years before the injury, the claimant had received chiropractic treatment about 30 times, according to Armstead.

In a separate filing, Justice Beth Walker underscored her support for the majority opinion while expressing her “respectful disagreement” with dissent to the opinion.

“Under West Virginia Code § 23-4-9b, any preexisting impairment does not have to be ‘definitely ascertained or rated prior to’ the compensable injury; the degree of the impairment ‘may be established at any time by competent medical or other evidence.’ ... But it must be ‘definitely ascertainable[.]’ ... Simply stated, to be apportionable, “an impairment must have been independently producing some degree of disability before the accident, and must be continuing to operate as a source of disability after the accident,’” Walker wrote.

Additionally, the employer “failed to offer competent, objective medical evidence in this case to support apportionment under West Virginia Code § 23-4-9b,” Walker wrote. That was the employer’s chance to show that the award should have been less than 25%, according to Walker, who doesn’t favor giving the Kanawha County Commission a second chance with the Board of Review.

Also, “I emphasize that states enact apportionment statutes with the intent to relieve the employer of the burden of paying for disabilities that are not attributable to the work-related accident for which the entitlement to workers’ compensation arises,” Walker wrote.

“Even though West Virginia Code § 23-4-9b does not identify which party bears the burden of proof when it comes to apportionment, the majority rightly places that burden on the employer, as the proponent of the benefit reduction. As the majority notes, other ‘[c]courts have offered several convincing rationales for allocating the burden of proof in an apportionment case to the employer[.] ... Apportionment is akin to an affirmative defense, and the employer has the burden of proof to establish entitlement to the reduction of the claimant’s permanent partial disability benefits. ...,” Walker wrote.

The Intermediate Court was established by the West Virginia Legislature in 2021. The court began operating July 1, 2022.