Summary
The West Virginia Supreme Court of Appeals affirmed a decision awarding Larry J. Shepherd 9% permanent partial disability benefits for compensable cervical and lumbar sprains. The court concluded that the evidence supported apportionment for preexisting degenerative conditions and that Shepherd had not shown entitlement to a greater award.
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Practice areas
Questions Presented
- Whether Shepherd established entitlement to a permanent partial disability award greater than 9% for his compensable lumbar and cervical sprains.
- Whether the Board of Review's affirmance of the 9% award was clearly erroneous under the review standard applicable to workers’ compensation appeals.
Holdings
- Shepherd failed to prove entitlement to a permanent partial disability award greater than 9%; the evidence supported the 9% award based on the compensable injuries after accounting for preexisting impairment.
- The Court may not reverse or modify the Board's decision affirming prior rulings on the same issue absent a clear constitutional or statutory violation, an erroneous conclusion of law, or a material misstatement or mischaracterization of the evidentiary record, and it may not reweigh the evidence de novo.
Key quotations
“The court may not conduct a de novo reweighing of the evidentiary record . . . .” (at 1)
“Pre-existing impairments and an aggravation thereof shall not be taken into consideration in determining the amount of permanent partial disability an employee is entitled to.” (at 4)
Factual background
Shepherd, a drywall finisher, injured his lower back and neck in an August 10, 2016, fall, and the claim was held compensable for lumbar and cervical sprains. Medical records and imaging showed that he had preexisting degenerative disease, chronic lumbar pain, radiculopathy, and related treatment before the compensable injury. The physicians who evaluated Shepherd assessed impairment ratings ranging from 8% to 15%, but the Office of Judges relied on Dr. Bachwitt's 9% assessment because Dr. Guberman's higher assessment did not apportion for symptomatic preexisting impairment. The Board of Review affirmed the 9% award.
Procedural history
The claims administrator granted Shepherd a 9% permanent partial disability award. The Workers’ Compensation Office of Judges affirmed that decision on October 5, 2020, and the Board of Review affirmed on April 22, 2021. The Supreme Court of Appeals of West Virginia reviewed the Board's decision and affirmed.