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By Steven K Wellman Of Jenkins Fenstermaker, PLLC on 06/13/2024
New Ruling Issued on WV Permanent Partial Disability Calculation

The West Virginia (WV) Supreme Court of Appeals issued a decision on June 10, 2024, in a case we argued on behalf of the employer and claim administrator. Logan-Mingo Area Mental Health, Inc. v. Lester addresses the Combined Values Chart of the AMA Guides® to the Evaluation of Permanent Impairment, Fourth Edition. The case has significant ramifications in how WV permanent partial disability (PPD) awards are calculated where a claimant has multiple claims and awards.

Addressing Preexisting Impairments in WV PPD Awards

In the Lester case, the claimant had received a 20 percent permanent partial disability award for a 1999 injury, consisting of 14 percent for his lumbar spine and 7 percent for his thoracic spine, which was reduced to 20 percent under the Combined Values Chart. Then, in 2017, the claimant suffered a second compensable injury to his lumbar spine, thoracic spine, and other parts of his body. The case arose due to a dispute regarding the allocation of preexisting and new impairments in the permanent partial disability calculation.

WV PPD Calculations in Logan-Mingo v. Lester

Dr. Bruce Guberman performed an independent medical examination (IME) of the claimant related to the 2017 injury. The doctor opined that the claimant suffered the following impairments:

  • Eight percent, lumbar spine;
  • Eight percent, cervical spine;
  • Seven percent, thoracic spine;
  • Four percent, left shoulder;
  • Four percent, right knee; and
  • Four percent, left knee.

Dr. Guberman reasoned that the lumbar spine impairment should be zero percent because the claimant received a prior rating of 14 percent for the lumbar spine, and for the same reason, the thoracic spine impairment should also be zero. Therefore, his final impairment rating was eight percent for the cervical spine, four percent for the left shoulder, four percent for the right knee, and four percent for the left knee. While these would be added to 20 percent, under the Combined Values Chart, they are “combined” for a total of 19 percent permanent partial disability.

The claim administrator consulted with an in-house physician and determined that if the Combined Values Chart of the AMA Guides is applied, these impairments “combine” to 30 percent. Since 20 percent was awarded in the 1999 claim, the claim administrator granted a 10 percent PPD award, nine percent less than Dr. Guberman calculated. The claimant protested this decision.

The WV Workers’ Compensation Office of Judges affirmed the award, but the Board of Review reversed and granted a 19 percent permanent partial disability award, based upon Dr. Guberman’s method of calculation. The employer appealed to the West Virginia Supreme Court.

The WV Supreme Court Ruling on Permanent Partial Disability Benefits

The Court reversed the Board of Review and reinstated the award as calculated by the claim administrator and affirmed by the Office of Judges. The Court issued the following new Syllabus point:

  • When a claimant has preexisting, definitely ascertained impairments to multiple body parts and then sustains new compensable injuries that affect the previously impaired body parts, the proper method for apportioning the preexisting impairments is to first determine the claimant’s total, unapportioned whole-person impairment using the Combined Values Chart of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993). Then, the total amount of the claimant’s preexisting impairment that has been definitely ascertained must be deducted from the total, unapportioned whole-person impairment to calculate the amount of the claimant’s Permanent Partial Disability award.

This case is significant in two ways. First, it confirms that the Combined Values Chart applies to all body parts, across all claims filed by the same claimant. Second, it applies even where the prior impairment/award was higher for one or more body parts than the impairment in the current claim.

As noted previously, Mr. Lester was awarded 14 percent for his lumbar spine in the 1999 claim. The impairment for his lumbar spine in the 2017 claim was found to be only 8 percent. Nevertheless, the entire 14 percent was part of the single impairment calculation.

The case is grounded upon the principle that a person has only one body, and thus, only one whole-person impairment. The 1999 claim established a “definitely ascertainable” preexisting impairment of 20 percent. The new claim/award must consider this preexisting impairment. Thus, the total impairment calculation upon application of the Combined Values Chart should have been to “combine” all the impairments that Dr. Guberman calculated. These impairments may equal 35 percent, but they “combine” to 30 percent under the AMA Guides. Then, 30 percent minus the previous award of 20 percent leaves 10 percent attributable to the newest claim.

WV Workers’ Compensation Attorneys for PPD Disputes

The decision in the Lester case has very significant implications for managing WV permanent partial disability awards when the claimant has had multiple claims/awards. Please feel free to contact the WV workers’ compensation attorneys at Jenkins Fenstermaker, PLLC to discuss how the case may apply to any claim you may be handling. You can reach us by calling (304)523-2100 or completing this online contact form.