Galaxy Distributing of WV, Inc. v. Lewis D. Spangler

Summary

The West Virginia Supreme Court of Appeals affirmed a decision awarding Lewis D. Spangler 23% permanent partial disability benefits for a compensable right shoulder injury. The court held that the employer failed to establish a definitely ascertainable preexisting impairment under West Virginia Code § 23-4-9b sufficient to support apportionment of impairment. The court issued the opinion as a per curiam memorandum decision under Rule 21.

Holdings

1. Apportionment was improper because the record did not establish that Spangler had a definitely ascertainable preexisting impairment before the compensable injury.
2. The Board of Review’s decision granting a 23% permanent partial disability award was supported by the record and was not clearly erroneous.

Questions Presented

1. Whether the Board of Review properly rejected the apportionment of 11% impairment to preexisting arthrosis under West Virginia Code § 23-4-9b.
2. Whether the evidence supported a 23% permanent partial disability award rather than the 12% award granted by the claims administrator.

Disposition

affirmed