New decision heightens employers’ burden of proof in WV workers’ comp cases

On April 22, 2024, the West Virginia Supreme Court of Appeals substantially redefined the burden of proof employers must meet to establish the degree of impairment that can be apportioned to a preexisting condition in the case Duff v. Kanawha County Commission. Over the past several years, the issue of such apportionment has been the most frequently litigated in workers’ compensation. 

Background

The claimant in Duff injured his back at work and had lumbar fusion surgery three months later. The physician who performed the medical evaluation on the employer’s behalf found the claimant to have a 25% whole-person impairment rating but assigned 12% of the impairment to his preexisting degenerative condition without supporting explanation.

The claimant’s examiner reached the same rating but declared that although the claimant had had treatment for back pain before his workplace injury and the post-injury MRI revealed a degenerative condition, an impairment rating wasn’t warranted. The protested award was upheld by the Workers’ Compensation Board of Review and the Intermediate Court of Appeals.