29 Mar , 2012
The West Virginia Supreme Court issued a series of memorandum decisions upholding administrative rulings in 10 workers’ compensation cases on Monday.
In Booker v. West Virginia Office of Insurance Commissioner et al., No. 101481, the court affirmed the denial of benefits to Debra K. Booker for her bilateral carpal tunnel syndrome.
Two doctors had testified that her condition developed because of the nature of her occupation, but two others disagreed. The Office of Judges, Board of Review, determined Booker’s job duties did not fall within the statutorily designated “high risk” groups for the condition, and that her medical history included risk factors that can precipitate carpal tunnel syndrome symptoms. In light of this evidence, the board concluded that the preponderance of the evidence failed to demonstrate that Booker’s carpal tunnel syndrome had any direct causal relationship with her occupation.
In Kitchen v. West Virginia Office of Insurance Commissioner et al., No. 101477, the court concluded that Sherry Kitchen did not suffer a permanent impairment as a result of a June 20, 2004, occupational injury.
The court said that the Office of Judges did not err in refusing to accept an untimely filed medical report into evidence, or in ruling that without the report, Kitchen had failed to present any evidence of a permanent impairment.
In Moran v. West Virginia Office of Insurance Commissioner et al., No. 101478, the court rejected a claim by Garry W. Moran that he was entitled to a permanent partial disability award of 16% for his compensable injuries.
The Office of Judges had determined the opinion of Dr. Steinan, on which Moran relied, was inconsistent with the methods for calculating permanent impairment detailed in the American Medical Association’s Guides to the Evaluation of Permanent Impairment. It considered the opinion of Dr. Mukkamala persuasive since he was the only physician to properly apply the Guides’ calculations, and accepted his rating of 8%.
The Board of Review and the state high court both concluded this was not clearly erroneous.
In Fleming v. West Virginia Office of Insurance Commissioner et al., No. 101490, the court upheld the Office of Judges’ determination that Kenneth Fleming was not entitled to permanent total disability benefits.
“Although Mr. Fleming has sufficient whole person impairment to warrant a permanent total disability award he is nevertheless capable of substantial gainful employment,” the court said, noting that he had “ceased working because he was laid off, and that following this lay-off, he held himself out as available to work and received unemployment benefits.”
In Bender v. West Virginia Office of Insurance Commissioner et al., No. 101491, the court rejected a claim by Kermit Bender that he was entitled to a 12% permanent partial disability award for his carpal tunnel. The Office of Judges had granted him a 2% award.
Bender relied on the opinion of Dr. Carlson, who had determined impairment by using Table 16 of the American Medical Associationâ€™s Guides to the Evaluation of Permanent Impairment and then applied W.Va. Code R. Â§ 85-20-64.5 (2006).
The court explained that its 2011 decision in Davies v. West Virginia Office of Insurance Commissioner established that W.Va. Code R. Â§ 85-20-64.5 was invalid and cannot be applied when carpal tunnel syndrome impairment is assessed under Table 16. Pursuant to this precedent, the court said the Board of Review did not err in disregarding Dr. Carlson’s opinion.
In Canterbury v. West Virginia Office of Insurance Commissioner et al., No. 101480, the high court agreed with the board’s conclusion that a disc protrusion is not equivalent to a herniated disc and upheld its decision awarding only 19% permanent disability benefits to Janie Canterbury.
In Daniels v. West Virginia Office of Insurance Commissioner et al., No. 101497, the court agreed with the board’s determination that Charlie Daniels’ June 23, 2008, injury was not compensable.
The court pointed out that Daniels had not sought medical treatment for three months after the alleged injury, and that he had a history of neck problems dating back to 2005.
In Hughes v. West Virginia Office of Insurance Commissioner et al., No. 1010479, the court upheld the board’s ruling that Jonathan Hughes’ “sprain/strain of the lumbar region and unspecified thoracic/lumbar neuritis/radiculitis” should not be added as compensable components of his compensation claim, and that a left L5-S1 lumbar discectomy was not reasonable and medically necessary in this claim.
The court noted that Hughes did not complain of back pain immediately after suffering a knee injury in September 2007, and reported his pain had resolved by the time he began participating in work conditioning in February 2008.
In Puher v. West Virginia Office of Insurance Commissioner et al., No. 101483, the court concluded Leonor Puher was time-barred from reopening her claim for permanent total disability benefits.
In Harrison v. West Virginia Office of Insurance Commissioner et al., No. 101489, the court determined that Sheila Harrison was not entitled to additional permanent partial disability benefits from a December 2003 injury since she was fully compensated by a prior award.