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Whole Body Medical Impairment Threshold under Consideration by WV Supreme Court

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Employers across the state of West Virginia are waiting for the West Virginia Supreme Court of Appeals to issue its decision in a case involving permanent total disability (PTD). Argued on February 14, 2017, the case involves the proper application of West Virginia Code § 23-4-6(n)(1), the West Virginia Code of State Rules § 85-20-64.1 (Rule 20), as well as the court's previous holding in Bowles v. The New West Virginia Mining Co., No. 14-1066 (July 9, 2015), as they relate to the required threshold of impairment for PTD.

Facts Underlying Cooper v. Appalachian Power Co.

Claimant Thomas Cooper was a long-term employee of Appalachian Power Company ("AEP" or "APCO"). He had suffered multiple injuries both at work and off-the-job. Over the years, Mr. Cooper saw many different doctors for his conditions. He received permanent partial disability awards for some of his work-related injuries, such as a 1976 back injury and a 1985 spine injury. Psychiatric conditions alone received a 10% whole body medical impairment.

The most recent report, and the only one that attempted to address all of Mr. Cooper's compensable conditions, was issued by Dr. Marsha Bailey in 2013.

Prior Proceedings Relevant to the Whole Body Impairment Threshold

Claimant Cooper asserted that he was entitled to permanent total disability (PTD) under West Virginia Code § 23-4-6(n)(1). Under that law, before a claimant is eligible for a PTD determination, he or she must meet one of two thresholds:

· permanent partial disability awards totaling at least 50 percent; or

· at least 35 percent in statutory awards.

A self-insured employer, AEP's claims administrator issued an order in 2014 denying Mr. Cooper PTD benefits, noting that the PTD Review Board had found that he did not meet the whole body impairment threshold.

Mr. Cooper filed a protest with the Workers' Compensation Office of Judges (OJ), where an administrative law judge (ALJ) remanded the matter for a new evaluation on the whole body impairment issue. The ALJ's 2015 decision found that Dr. Bailey's report contained a "fundamental flaw" that prevented it from being credible: Dr. Bailey had allegedly improperly applied the provisions of Rule 20 to Cooper's lumbar and cervical spine injuries.

Ultimately, the Workers' Compensation Board of Review (BOR) reversed the ALJ's decision, finding that it prejudiced AEP's substantial rights due to an error of law. In short, the BOR found that the application of Rule 20 was consistent with West Virginia Supreme Court precedent in Bowles. It therefore reversed and vacated the ALJ's decision and reinstated the claims administrator's order denying the PTD award. Mr. Cooper filed an appeal with the Supreme Court of Appeals of West Virginia.

Arguments on the Whole Body Impairment Issue before the WV Supreme Court

The Supreme Court heard oral argument on February 14, 2017.

Petitioner Cooper appealed from the denial of a (PTD) award. Petitioner's counsel argued that the PTD Review Board, which functions under the direction of the West Virginia Insurance Commissioner, improperly recommended that Petitioner's claim be denied because claimant did not meet the statutory whole body medical impairment of 50% from one or more compensable occupational injuries or diseases.

Petitioner Cooper argued that the court should not allow the PTD Review Board to assess whole body medical impairment in this claim since most of the Petitioner's permanent partial disability (PPD) awards of 63% resulted from medical examiners' use of the AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition, and further that the PTD Review Board should not apply the Rule 20 tables for spinal impairment in making its whole body medical impairment determinations.

Petitioner further argued that PPD awards were the same as whole body medical determinations and that re-evaluation of impairment was prejudicial to claimants. Respondent AEP, a self-insured employer, argued that the West Virginia Legislature intended for the PTD Review Board to make its impartial determinations of whether a PTD applicant met the 50% whole body medical impairment threshold before deciding whether an applicant was permanently and totally disabled by compensable workplace injuries or diseases.

AEP also argued that the statute authorized the PTD Review Board to either have an applicant examined or that it could examine the applicant. Finally, Respondent argued that the PTD Review Board should apply the Rule 20 spine impairment tables in a determination of an applicant's compensable cervical, thoracic, or lumbar spine whole person impairment. The court's decision should be issued during this term.

If you have any questions about the proper application of Rule 20 spine impairment tables in a whole body medical impairment, please do not hesitate to contact Henry Bowen, Steven K. Wellman, or another experienced workers' compensation attorney at Jenkins Fenstermaker, PLLC. We have decades of experience advising and representing West Virginia employers and carriers in workers' compensation claims. Contact us today by calling (866) 617-4736 or by completing our Contact form.

This article should be considered advertising material, Steven K. Wellman, responsible attorney. This article is being provided for informational purposes only and should not be construed as legal advice pertaining to any particular situation or circumstance.

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