The opinion
FILED
November 26, 2024
C. CASEY FORBES, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Jerrald Barker,
Claimant Below, Petitioner
v.) No. 22-0078 (BOR Appeal No. 2057260)
(JCN: 2018021286)
Rescare,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Jerrald Barker appeals the decision of the West Virginia Workers’ Compensation
Board of Review (“Board of Review”). Respondent Rescare filed a timely response.1 The issue on
appeal is permanent partial disability. The claim administrator granted a 7% permanent partial
disability award on September 11, 2019. The Workers’ Compensation Office of Judges (“Office
of Judges”) affirmed the decision in its August 20, 2021, order. The order was affirmed by the
Board of Review on January 20, 2022. Upon our review, we determine that oral argument is
unnecessary and that this case satisfies the “limited circumstances” requirement of Rule 21(d) of
the Rules of Appellate Procedure and is appropriate for vacation in a memorandum decision rather
than an opinion. See W. Va. R. App. P. 21.
Mr. Barker, a clinical supervisor, injured his lower back on March 3, 2018, while moving
furniture and rehanging doors. The claim was held compensable for lower back strain on April 16,
2018. The claim administrator added lumbar intervertebral disc disorder with radiculopathy to the
claim on October 24, 2018. Mr. Barker has a history of preexisting and noncompensable lower
back conditions, which includes degenerative disease and diabetic peripheral neuropathy. In 1999,
he sustained a noncompensable injury to his lower back while lifting a couch, which required a
right L4-L5 laminectomy and L5-S1 discectomy.
On August 13, 2019, Marsha Bailey, M.D., performed an independent medical evaluation
in which she noted that Mr. Barker would have the permanent work restriction of lifting no more
than fifty pounds. Dr. Bailey placed him in Category II-E from Table 75 of the American Medical
Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993) (“AMA Guides”)
for 10% impairment. He also qualified for 1% impairment under Category II-F for his lower back
surgery, and 2% under Category II-G for his second lower back surgery. Mr. Barker’s range of
1
Petitioner Jerrald Barker is represented by counsel Reginald D. Henry, and Respondent
Rescare is represented by counsel Jeffrey B. Brannon.
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motion measurement was pain restricted and invalid for determining impairment. Sensory
examination of the left lower extremity showed decreased sensation in a distribution consistent
with diabetic peripheral neuropathy. Under the Range of Motion Model, Dr. Bailey found 13%
impairment. Dr. Bailey then placed Mr. Barker in Lumbar Category III from West Virginia Code
of State Rules § 85-20-C, which allows for 10% to 13% impairment. Dr. Bailey’s finding of 13%
impairment needed no adjustment. Dr. Bailey apportioned 50% of Mr. Barker’s impairment for
his first back surgery and for his age-related degenerative spine disease. Dr. Bailey found 7%
impairment for the compensable injury. Based on Dr. Bailey’s evaluation, the claim administrator
granted Mr. Barker a 7% permanent partial disability award on September 11, 2019.
Bruce Guberman, M.D., performed an independent medical evaluation on March 18, 2020,
in which he opined that Mr. Barker was possibly a surgical candidate and he was waiting for the
opinion of a neurosurgeon. Therefore, he had not yet reached maximum medical improvement and
an impairment rating was not recommended. In an August 3, 2020, supplemental independent
medical evaluation, Dr. Guberman noted that Mr. Barker was seen by a neurosurgeon, and surgery
was not recommended. Dr. Guberman opined that Mr. Barker had reached maximum medical
improvement, and placed him in Category II-E from Table 75 of the AMA Guides for 10%
impairment. From Table 82, Dr. Guberman found 5% impairment for abnormal lateral flexion
range of motion in the lumbar spine. He determined that Mr. Barker had weakness in dorsiflexion
of the left ankle of the left extensor hallucis longus due to residual radiculopathy at L5. He assessed
3% whole person impairment from Table 21 for the deficit. Dr. Guberman’s total combined whole
person impairment rating was 17%. Dr. Guberman placed Mr. Barker in Lumbar Category III from
West Virginia Code of State Rules § 85-20-C, which allows for between 10% and 13%, and
adjusted the rating to 13%. Regarding apportionment, it was determined that Mr. Barker had no
symptoms or limitations prior to the compensable injury, and Dr. Guberman declined to apportion
the claim. All of the 13% impairment was attributed to the compensable injury.
On October 28, 2020, Michael Kominsky, D.C., conducted an independent medical
evaluation, and opined that Mr. Barker had reached his maximum degree of medical improvement.
However, Dr. Kominsky recommended that Mr. Barker return to his neurosurgeon for a repeat
MRI and consultation to determine the best course for management of his continued lower back
pain and lower extremity weakness. With respect to impairment, Dr. Kominsky opined that Mr.
Barker had 13% whole person impairment and stated:
This patient did not have any pre-existing residual pain or loss of function prior to
the injury. He was functioning at a high level of his functional capacity during his
essential work task at his job. Also, he was not undergoing any treatments for his
low back prior to this injury. He also had no radicular symptoms, no interference
of activities of daily living and there was no impairment rating on record. Therefore,
in my opinion within a reasonable degree of medical certainty, the 13% whole
person impairment is entirely related to his 03/03/2018 injury and no apportionment
is considered in this case.
Dr. Kominsky further stated that if any previous awards have been given for the conditions that he
rated, they should be subtracted from the final impairment.
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Mr. Barker was seen by David Soulsby, M.D., on January 27, 2021, for an independent
medical evaluation. Dr. Soulsby reviewed the records, conducted an examination, and determined
that Mr. Barker had reached maximum medical improvement. In accordance with the AMA
Guides, Dr. Soulsby found 29% impairment. However, using Table § 85-20-C, the calculated
impairment was adjusted to 13%. In discussing apportionment, Dr. Soulsby noted that Mr. Barker
had previously undergone a lumbar laminectomy for herniated disc at L4-5, in addition to having
multilevel degenerative disc disease and spinal stenosis. Because of Mr. Barker’s preexisting
disease and comorbidities, Dr. Soulsby concluded that only 50% of the observed impairment was
found to be related to the injury which occurred on March 3, 2018. Therefore, he recommended
7% whole person impairment. Dr. Soulsby also reviewed the reports from Drs. Guberman and
Kominsky and opined that both doctors correctly found 13% impairment under the AMA Guides.
However, Dr. Soulsby found that both physicians failed to apportion for Mr. Barker’s prior disc
herniation requiring laminectomy and his other preexisting conditions and comorbidities.
The Respondent obtained a supplemental record review and opinion report from Dr.
Bailey. In her report dated May 7, 2021, Dr. Bailey opined that Dr. Guberman’s physical
examination findings were inconsistent with Mr. Barker’s known long standing history of chronic
diseases, which included chronic lower back pain, lower extremity radiculopathy, diabetic
peripheral neuropathy, and lower extremity vascular disease. Dr. Bailey concluded that Dr.
Guberman overlooked Mr. Barker’s substantial confounding personal medical conditions when he
made the decision not to apportion his impairment rating. It was Dr. Bailey’s opinion that Mr.
Barker’s most accurate and true impairment as a result of his March 3, 2018, injury was 7% whole
person impairment.
In a decision dated August 20, 2021, the Office of Judges affirmed the September 11, 2019,
order of the claim administrator awarding a 7% permanent partial disability award. The Office of
Judges noted that Mr. Barker had preexisting conditions unrelated to his work. It was noted that
he was evaluated by sound independent medical evaluators, all of whom found 13% whole person
impairment utilizing the AMA Guides. However, it was noted that both Drs. Soulsby and Bailey
apportioned half of Mr. Barker’s impairment of 13% to his preexisting non-compensable
conditions and determined 7% would be rating for the compensable injury. Referencing West
Virginia Code § 23-4-9b, the Office of Judges concluded that “it is clear in this case that the
claimant had pre-existing conditions related to the compensable body party and two medical
professionals opined as to the percentage unrelated to the injury at issue.” As such, the Office of
Judges determined that the physicians who apportioned presented a more reliable reflection of Mr.
Barker’s condition, and that he had 7% whole person impairment attributable to the injury on
March 3, 2018. On January 20, 2022, the Board of Review adopted the findings of facts and
conclusions of law of the Office of Judges and affirmed the decision.
This Court may not reweigh the evidentiary record, but must give deference to the findings,
reasoning, and conclusions of the Board of Review, and when the Board’s decision affirms prior
rulings by both the Workers’ Compensation Commission and the Office of Judges, we may reverse
or modify that decision only if it is in clear violation of constitutional or statutory provisions, is
clearly the result of erroneous conclusions of law, or is based upon a material misstatement or
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mischaracterization of the evidentiary record. See W. Va. Code § 23-5-15(c) & (d). We apply a de
novo standard of review to questions of law. See Justice v. W. Va. Off. Ins. Comm’n, 230 W. Va.
80, 83, 736 S.E.2d 80, 83 (2012).
Mr. Barker argues that the preponderance of the evidence establishes that he sustained
more than 7% whole person impairment from his compensable injury. He asserts that evidence
was ignored by the Office of Judges indicating that he had not had any symptoms or treatment for
his lower back since the time of his recovery from his 1999 surgery, and that he was working full-
time and performing laborious duties at the time of the instant injury. Mr. Barker maintains that
Dr. Guberman’s and Kominsky’s reports should have been given greater weight by the Office of
Judges. In contrast, the employer argues that when the applicable law to this claim is applied to
the facts and evidence of record, it is clear that the opinions of Dr. Guberman and Dr. Kominsky
are not reliable. The primary difference in the recommendations of permanent partial impairment
for the compensable injury was apportionment.
The controlling statute for apportionment is West Virginia Code § 23-4-9b (2003), which
provides, in part:
Where an employee has a definitely ascertainable impairment resulting
from an occupational or a nonoccupational injury, disease or any other cause,
whether or not disabling, and the employee thereafter receives an injury in the
course of and resulting from his or her employment, unless the subsequent injury
results in total permanent disability within the meaning of section one, article three
of this chapter, the prior injury, and the effect of the prior injury, and an
aggravation, shall not be taken into consideration in fixing the amount of
compensation allowed by reason of the subsequent injury. Compensation shall be
awarded only in the amount that would have been allowable had the employee not
had the preexisting impairment.
This Court has previously held that,
[t]he purpose of W. Va. Code § 23-4-9b (2003) is to disallow any
consideration of any preexisting definitely ascertainable impairment in determining
the percentage of permanent partial disability occasioned by a subsequent
compensable injury, except in those instances where the second injury results in
total permanent disability[.]
Syl. Pt. 2, in part, SWVA, Inc. v. Birch, 237 W. Va. 393, 787 S.E.2d 664 (2016).
In a recent case, this Court established a new standard for evaluating definitely
ascertainable preexisting impairment under West Virginia Code § 23-4-9b. See Syl. Pt. 6, Duff v.
Kanawha Cnty. Comm’n, 250 W. Va. 510, 905 S.E.2d 528 (2024). In Duff, we held:
Under West Virginia Code § 23-4-9b (2003), the employer has the burden
of proving apportionment is warranted in a workers’ compensation case. This
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requires the employer to prove the claimant “has a definitely ascertainable
impairment resulting from” a preexisting condition(s). This requires that employer
prove that the preexisting condition(s) contributed to the claimant’s overall
impairment after the compensable injury and prove the degree of impairment
attributable to the claimant’s preexisting condition(s).
Id.
The record indicates that Mr. Barker has a history of preexisting conditions. Drs. Guberman
and Kominsky did not apportion in this case, but Drs. Soulsby and Bailey apportioned half of Mr.
Barker’s impairment of 13% to his preexisting noncompensable conditions. However, the issue of
whether or not Mr. Barker has a definitely ascertainable impairment resulting from his preexisting
conditions, and how those conditions contributed to his overall impairment, must still be
determined. Accordingly, we vacate the Board of Review’s decision and remand the case to the
Board for further development of the evidentiary record and analysis under Duff.
Vacated and remanded with directions.
ISSUED: November 26, 2024
CONCURRED IN BY:
Justice Elizabeth D. Walker
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
DISSENTING:
Chief Justice Tim Armstead
Armstead, Chief Justice, dissenting:
The majority determines that under the Court’s holding in Duff v. Kanawha Cnty. Comm’n,
250 W. Va. 510, 905 S.E.2d 528 (2024), the Board of Review’s ruling must be vacated and the
case must be remanded for further evidentiary development. See Syl. Pt. 6, Duff (“Under West
Virginia Code § 23-4-9b (2003), the employer has the burden of proving apportionment is
warranted in a workers’ compensation case. This requires the employer to prove the claimant ‘has
a definitely ascertainable impairment resulting from’ a preexisting condition(s). This requires that
employer prove that the preexisting condition(s) contributed to the claimant’s overall impairment
after the compensable injury and prove the degree of impairment attributable to the claimant’s
preexisting condition(s).”). While I agree that applying our ruling in Duff leads to this result, I
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dissent because I disagree with the Court’s holding in Duff. As I explained in my separate opinion
in that case:
the majority’s interpretation of West Virginia Code § 23-4-9b is not
supported by the plain language of the statute or by our long-
standing recognition that a workers compensation claimant has the
burden of proof, [therefore] I disagree with the majority’s ruling that
the employer bears the burden to prove (1) that the claimant has a
definitely ascertainable impairment resulting from a preexisting
condition; (2) that the preexisting condition contributed to the
claimant's overall impairment after the compensable injury; and (3)
the precise degree of impairment that is attributable to the
preexisting condition.
By shifting the burden to the employer, the majority is
treating apportionment as an affirmative defense. West Virginia
Code § 23-4-9b does not contain any language providing that
apportionment should be treated as an affirmative defense that the
employer is responsible for asserting.
Duff, 250 W. Va. at ____, 905 S.E.2d at 542-43 (Armstead, C.J., concurring, in part, and
dissenting, in part).
By applying our ruling in Duff to the present case, I believe that this Court continues to
misapply the plain language of West Virginia Code § 23-4-9b. Therefore, I dissent.
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