David Duff, II v. Kanawha County Commission

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

FILED

January 2024 Term

April 22, 2024

_____________________ released at 3:00 p.m.

C. CASEY FORBES, CLERK

SUPREME COURT OF APPEALS

No. 23-43 OF WEST VIRGINIA

_____________________

DAVID DUFF, II,

Petitioner,

v.

KANAWHA COUNTY COMMISSION,

Respondent.

______________________________________________________

Appeal from the Intermediate Court of Appeals of West Virginia

No. 22-ICA-10

Judicial Claim No. 2021000317

REVERSED AND REMANDED WITH DIRECTIONS

_________________________________________________________

Submitted: January 9, 2024

Filed: April 22, 2024

William B. Gerwig, III, Esq. H. Dill Battle, III, Esq.

Charleston, West Virginia Charity K. Lawrence, Esq.

Counsel for the Petitioner Spillman Thomas & Battle, PLLC

Charleston, West Virginia

Counsel for the Respondent

JUSTICE HUTCHISON delivered the Opinion of the Court.

CHIEF JUSTICE ARMSTEAD concurs in part, and dissents in part, and reserves the right

to file a separate opinion.

JUSTICE WALKER concurs and reserves the right to file a concurring opinion.

JUSTICE BUNN concurs in part, and dissents in part, and reserves the right to file a

separate opinion.

SYLLABUS OF THE COURT

1. It is a settled principle of statutory construction that courts presume

the Legislature drafts and passes statutes with full knowledge of existing law.

2. Upon judicial review of an appeal of a decision of the West Virginia

Board of Review to the Intermediate Court of Appeals of West Virginia, under West

Virginia Code § 23-5-12a(b) (eff. Jan. 13, 2022):

The Intermediate Court of Appeals may affirm the order or

decision of the Workers’ Compensation Board of Review or

remand the case for further proceedings. It shall reverse,

vacate, or modify the order or decision of the Workers’

Compensation Board of Review, if the substantial rights of the

petitioner or petitioners have been prejudiced because the

Board of Review’s findings are:

(1) In violation of statutory provisions;

(2) In excess of the statutory authority or

jurisdiction of the Board of Review;

(3) Made upon unlawful procedures;

(4) Affected by other error of law;

(5) Clearly wrong in view of the reliable,

probative, and substantial evidence on the whole

record; or

(6) Arbitrary or capricious or characterized by

abuse of discretion or clearly unwarranted

exercise of discretion.

3. On appeal of a decision of the West Virginia Workers’ Compensation

Board of Review from the Intermediate Court of Appeals of West Virginia to the Supreme

i

Court of Appeals of West Virginia, the Supreme Court of Appeals is bound by the statutory

standards contained in West Virginia Code § 23-5-12a(b) (eff. Jan. 13, 2022). Questions

of law are reviewed de novo, while findings of fact made by the Board of Review are

accorded deference unless the reviewing court believes the findings to be clearly wrong.

4. “The primary object in construing a statute is to ascertain and give

effect to the intent of the Legislature.” Syllabus Point 1, Smith v. State Workmen’s

Compensation Commissioner, 159 W. Va. 108, 219 S.E.2d 361 (1975).

5. “When a statute is clear and unambiguous and the legislative intent is

plain, it is the duty of the courts to apply the statute in accordance with the legislative intent

therein clearly expressed.” Syllabus Point 1, Jarrell v. State Workmen’s Compensation

Commissioner, 152 W. Va. 418, 163 S.E.2d 798 (1968).

6. 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).

ii

HUTCHISON, Justice:

When an employee is injured in the course of and resulting from his or her

covered employment, the employee is ordinarily entitled to workers’ compensation

benefits to compensate him or her for the disability related to the work-related injury.

Sometimes, though, the employee has a preexisting condition unrelated to the work injury

that will contribute to the employee’s overall disability. Generally, the employer becomes

liable for the entire disability resulting from a compensable accident under the “full

responsibility rule.” Some states, though, have enacted so-called apportionment statutes

which do away with the full responsibility rule. These statutes are meant to separate out a

preexisting disability from the disability arising from the current compensable injury and

impose upon employers the duty to “compensate injured workers only for that portion of

their permanent disability attributable to a current industrial injury, not for that portion

attributable to previous injuries or to nonindustrial factors.” Brodie v. Work. Comp.

Appeals Bd., 156 P.3d 1100, 1104 (Cal. 2007). West Virginia has adopted an

apportionment statute and codified it at West Virginia Code § 23-4-9b (2003).

The Petitioner, David Duff II, was injured on the job. He applied for workers’

compensation benefits and the workers’ compensation carrier for the Respondent, the

Kanawha County Commission, ultimately awarded the Petitioner a 13% Permanent Partial

Disability (PPD) award. This award was based upon a medical report that, while finding

the Petitioner had a 25% whole person impairment, apportioned 12% of the whole person

1

impairment to an alleged preexisting condition.1 The Petitioner then protested that 13%

PPD award to the West Virginia Workers’ Compensation Board of Review (BOR) where

he produced a medical evaluation showing he was entitled a full 25% PPD award as no

apportionment was indicated. The BOR affirmed the 13% PPD award finding that “[t]he

evidence on [sic] record indicated that apportionment should occur and is proper.” The

Petitioner appealed to the Intermediate Court of Appeals of West Virginia (ICA) arguing

that apportionment was not proper in his case. The ICA disagreed and affirmed the BOR.

Duff v. Kanawha County Comm’n, 247 W. Va. 550, 882 S.E.2d 916 (Ct. App. 2022). The

Petitioner now appeals the ICA’s judgment to this Court.

After reviewing the parties’ briefs and appendix records, consulting pertinent

authority, and considering the parties’ oral arguments in this Court, we conclude the ICA

erred in affirming the BOR. We therefore, reverse the ICA’s decision and remand this case

to the BOR with directions.

I. Facts and Procedural Background

The Petitioner was a Kanawha County Deputy Sheriff in the Department’s

bomb squad on June 15, 2020, when he injured his back lifting a bomb detector robot out

1

Although the terms impairment and disability are technically distinct, under

West Virginia Code § 23-4-6(i) (2005), the terms impairment and disability are

functionally synonymous since “[o]nce the degree of medical impairment has been

determined that degree of impairment shall be the degree of permanent partial disability

that shall be awarded to the claimant.”

2

of the back of a truck. The Respondent’s workers’ compensation insurer claims examiner

found the injury compensable. On September 24, 2020, the claims’ examiner authorized

lumbar interbody fusion surgery for the Petitioner. Robert Crow, M.D., performed a

successful L3-L4 posterior lumbar interbody fusion on the Petitioner.

After the Petitioner underwent surgery, the claims examiner referred the

Petitioner to Prasadarao Mukkamala, M.D. for an independent medical evaluation. In his

report, Dr. Mukkamala indicated that he reviewed office records from McKinney Family

Chiropractic dated July 1 to October 21, 2020, a lumbar spine MRI dated July 14, 2020,

office records from West Virginia OrthoNeuro (Dr. Crow’s medical practice) dated August

5, 2020, through March 19, 2021, as well as “[m]ultiple physical therapy records[.]” Dr.

Mukkamala concluded in his report that the Petitioner “has reached [the] maximum degree

of medical improvement from the compensable injury dated 6/15/2020.”

Based upon the American Medical Association’s Guides to the Evaluation of

Permanent Impairment (4th ed. 1993) (AMA Guides), Dr. Mukkamala opined that the

Petitioner had a total whole person impairment of 25% for the lumbar spine. Dr.

Mukkamala apportioned 12% to pre-existing degenerative spondyloarthropathy and 13%

to the compensable injury. The entirety of Dr. Mukkamala’s apportionment decision

contained in his report was:

Please note that the 25% whole person Impairment is resulting

from the preexisting degenerative spondyloarthropathy as well

as the compensable injury of 6/15/2020.

3

I will apportion Impairment and allocate 12% to the preexisting

degenerative spondyloarthropathy and 13% to the

compensable injury of 6/15/2020.

Based upon Dr. Mukkamala’s report, the claims examiner awarded the

Petitioner a 13% PPD award. The Petitioner protested to the BOR and his counsel arranged

for the Petitioner to be examined by Bruce Guberman, M.D. Dr. Guberman’s report related,

among other things, that the Petitioner unsuccessfully received chiropractic treatment from

McKinney Chiropractic commencing on July 1, 2020. Dr. Guberman’s report also reflected

that the Petitioner told him that before his injury he had had occasional lower back pain.

He also informed Dr. Guberman that he had been seeing Dr. McKinney intermittently after

joining the Sheriff’s Department and that Dr. McKinney offered discounts to law

enforcement officers. The Petitioner relayed to Dr. Guberman that his treatment was

primarily massage due to tightness in his muscles from wearing a 20-pound gun belt, which

he experienced about once a week. The Petitioner also told Dr. Guberman that before his

injury the pain never radiated into his legs, and he has never had numbness, tingling, or

weakness in his legs.

Dr. Guberman opined that the Petitioner had reached maximum medical

improvement with 12% whole person impairment for the lumbar spine. He also rated 14%

whole person impairment for range of motion abnormalities of the lumbar spine. Another

1% whole person impairment was found for sensory abnormalities of the lower extremities.

Dr. Guberman then combined the 14% rating for range of motion abnormalities with the

4

12% whole person impairment from Table 75 of the AMA Guides by the Combined Values

Chart to arrive at a total of 25% whole person impairment. Dr. Guberman opined the entire

impairment should be apportioned to the June 15, 2020, injury. He further opined that

although the Petitioner had imaging studies that revealed evidence of degenerative joint

and disc disease of the lumbar spine which was present before the injury, he would not

have qualified for an impairment rating using either the Range of Motion Model or Table

85-20-C before the current injury. Dr. Guberman stated that the Petitioner’s occasional

lumbar spine pain did not radiate into his legs, and he did not have numbness, tingling, or

weakness in his legs due to low back pain before his work injury. Dr. Guberman opined

that the Petitioner’s pre-injury low back pain was only intermittent and did not cause

ongoing significant interference with his activities of daily living, functional limitations,

or interference at work. As such, Dr. Guberman did not believe that there was an objective

medical, logical rationale for determining that any specific portion of the Petitioner’s

impairment should be apportioned to any preexisting conditions. Consequently, Dr.

Guberman apportioned the Petitioner’s entire 25% whole person impairment rating to the

work-related injury.

Subsequently, the Respondent’s counsel arranged for another medical

evaluation to be performed on the Petitioner by David L. Soulsby, M.D. Dr. Soulsby found

that the Petitioner had a 25% whole person impairment and agreed with Dr. Mukkamala

that 12% of the impairment had to be apportioned to a pre-existing disease process for a

5

13% whole person impairment. Dr. Soulsby, however, did not attach a low back

examination form to his report.

During the BOR proceedings, the Respondent submitted the Petitioner’s

chiropractic records from McKinney Chiropractic dated September 26, 2018, to June 23,

2020. These records reflected that the Petitioner had lower back pain and stiffness from the

time he began working in 1999. The chiropractic records reflected a diagnosis of segmental

and somatic dysfunction of the lumbar, cervical, thoracic, sacral, and sacrococcygeal

region. The short-term goals of the chiropractic treatment were to improve thoracolumbar

range of motion by 50%, decrease pain, restore range of motion, and improve the

Petitioner’s activities of daily living without pain.

The BOR affirmed the 13% PPD award by order of July 26, 2022. The BOR

disregarded Dr. Soulsby’s report as it did not include a low back examination form as

mandated by W. Va. C.S.R. § 85-20-66.2 (2006) (“A report and opinion submitted

regarding the degree of permanent whole body medical impairment as a result of a back

injury without a completed back examination form shall be disregarded.”). It then

addressed the disparity between Dr. Mukkamala’s report and Dr. Guberman’s report as to

apportionment and concluded that “[t]he evidence on [sic] record indicates that

apportionment should occur and is proper.”

6

In accepting Dr. Mukkamala’s report over that of Dr. Guberman, the BOR

relied on the medical records submitted, including chiropractic records from Dr. McKinney

predating June 15, 2020, (chiropractic records that neither Dr. Mukkamala nor Dr.

Guberman reviewed for their reports, Duff, 247 W. Va. at 559 n.10, 882 S.E.2d at 925

n.10), and MRI imaging.

The BOR believed that these records established a pre-existing back condition with

a definite ascertainable functional impairment because the records

dated up to less than two months before the compensable

injury, establish almost a two-year history of low back pain and

treatment consisting of approximately 30 office visits. The

records report a lumbar diagnosis and show a loss of [range of

motion] due to the pre-existing back condition as evidenced by

the treatment goal to improve and restore his [range of motion].

Thus, the records do establish a pre-existing back condition

with a definite ascertainable functional impairment.

The BOR concluded that the evidence established a pre-existing lumbar

diagnosis and range of motion loss of the lumbar spine. The BOR stated that Dr. Guberman

did not report a review of any records from Dr. McKinney, the chiropractor, and concluded

that Dr. Guberman’s opinion t that the Petitioner would not have qualified for an

impairment before the June 15, 2020, injury was based upon incomplete evidence.

7

The BOR then rejected the Petitioner’s claim that he was entitled to a 25%

PPD award, because he still would have been placed in a lumbar Category V for the

authorized fusion despite any pre-existing back conditions or range of motion.

Finally, the BOR addressed the claim that Dr. Mukkamala’s 50-50

apportionment was arbitrary. “[N]o medical opinion in which apportionment occurs has

been submitted that refutes Dr. Mukkamala’s amount of apportionment. Whereas it has

been determined that apportionment is to occur, Dr. Mukkamala’s report is most in

accordance with the evidentiary record.”

The Petitioner then appealed to the ICA which affirmed the BOR’s decision.

Duff, 247 W. Va. at 53, 882 S.E.2d at 19.

The Petitioner timely appealed from the ICA to this Court. We now reverse

the ICA’s decision.

II. Standard of Review

At this point in our opinion, we address the standard of review governing this

appeal.

8

Both parties look to West Virginia Code § 23-5-15 (2021) as providing the

standard of review governing this appeal. 2 We disagree. 3

2

West Virginia Code § 23-5-15 provided for the following standard of review

before July 1, 2022:

(c) In reviewing a decision of the Board of Review, the

Supreme Court of Appeals shall consider the record provided

by the board and give deference to the board’s findings,

reasoning, and conclusions, in accordance with subsections (d)

and (e) of this section.

(d) If the decision of the board represents an affirmation

of a prior ruling by both the commission and the Office of

Judges that was entered on the same issue in the same claim,

the decision of the board may be reversed or modified by the

Supreme Court of Appeals only if the decision is in clear

violation of constitutional or statutory provision, is clearly the

result of erroneous conclusions of law, or is based upon the

board’s material misstatement or mischaracterization of

particular components of the evidentiary record. The court may

not conduct a de novo reweighing of the evidentiary record. If

the court reverses or modifies a decision of the board pursuant

to this subsection, it shall state with specificity the basis for the

reversal or modification and the manner in which the decision

of the board clearly violated constitutional or statutory

provisions, resulted from erroneous conclusions of law, or was

based upon the board’s material misstatement or

mischaracterization of particular components of the

evidentiary record.

(e) If the decision of the board effectively represents a

reversal of a prior ruling of either the commission or the Office

of Judges that was entered on the same issue in the same claim,

the decision of the board may be reversed or modified by the

Supreme Court of Appeals only if the decision is in clear

violation of constitutional or statutory provisions, is clearly the

result of erroneous conclusions of law, or is so clearly wrong

based upon the evidentiary record that even when all inferences

are resolved in favor of the board’s findings, reasoning, and

conclusions, there is insufficient support to sustain the

9

Under West Virginia Code § 23-5-15(a), “[a]s provided in § 23-5-8b of this

code, the provisions of this section do not apply to any decision issued by the Workers’

Compensation Board of Review after June 30, 2022.” “‘[C]ourts must presume that a

legislature says in a statute what it means and means in a statute what it says there.’” Martin

v. Randolph County Bd. of Educ., 195 W. Va. 297, 312, 465 S.E.2d 399, 414 (1995)

(quoting Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992)). Since the

decision in this case was rendered by the BOR on July 26, 2022, West Virginia Code § 23-

5-15 cannot apply to this case. Nevertheless, we can discern an appropriate standard of

review from pertinent Code provisions relating to the ICA and this Court’s precedents.

We begin by observing that the Legislature has crafted a standard of review

for the ICA to apply to BOR appeals. West Virginia Code § 23-5-12a(b) (eff. Jan. 13, 2022)

provides, in pertinent part:

decision. The court may not conduct a de novo reweighing of

the evidentiary record. If the court reverses or modifies a

decision of the board pursuant to this subsection, it shall state

with specificity the basis for the reversal or modification and

the manner in which the decision of the board clearly violated

constitutional or statutory provisions, resulted from erroneous

conclusions of law, or was so clearly wrong based upon the

evidentiary record that even when all inferences are resolved

in favor of the board’s findings, reasoning, and conclusions,

there is insufficient support to sustain the decision.

3

Because this Court and “not the parties, must determine the standard of

review[,]” Worth v. Tyer, 276 F.3d 249, 263 n.4 (7th Cir. 2001), “we are not bound by the

parties’ position on the standard of review[.]” State v. Brewer, 882 S.E.2d 156, 160 n.1

(S.C. 2022).

10

The Intermediate Court of Appeals may affirm the order or

decision of the Workers’ Compensation Board of Review or

remand the case for further proceedings. It shall reverse,

vacate, or modify the order or decision of the Worker’

Compensation Board of Review, if the substantial rights of the

petitioner or petitioners have been prejudiced because the

Board of Review’s findings are:

(1) In violation of statutory provisions;

(2) In excess of the statutory authority or jurisdiction of

the Board of Review;

(3) Made upon unlawful procedures;

(4) Affected by other error of law;

(5) Clearly wrong in view of the reliable, probative, and

substantial evidence on the whole record; or

(6) Arbitrary or capricious or characterized by abuse of

discretion or clearly unwarranted exercise of discretion.

This is practically identical to the standard of review that the Legislature set

forth in the West Virginia Administrative Procedures Act (APA) for appeals from

administrative agencies to circuit court courts prior to the creation of the ICA. 4 And in this

4

The 1964 and 1998 versions of West Virginia Code § 29A-5-4(g) were

identical and provided:

The court may affirm the order or decision of the agency or

remand the case for further proceedings. It shall reverse,

vacate, or modify the order or decision of the agency if the

substantial rights of the petitioner or petitioners have been

prejudiced because the administrative findings, inferences,

conclusions, decision, or order are:

(1) In violation of constitutional or statutory provisions;

11

regard we have recognized that “our review of the circuit court’s ruling on a matter subject

to the Administrative Procedures Act is governed by the same statutory standards of review

employed by the trial court.” Nesselroad v. State Consol. Pub. Ret. Bd., 225 W. Va. 397,

399, 693 S.E.2d 471, 473 (2010) (per curiam) (citing Martin v. Randolph County Bd. of

Educ. 195 W. Va. 297, 304, 465 S.E.2d 399, 406 (1995); W. Va. Code § 29A–5–4 (2007)).

Thus “[o]n appeal, this Court review[ed] the decisions of the circuit court under the same

standard of judicial review that the lower court was required to apply to the decision of the

administrative agency.” Webb v. W. Va. Bd. of Med., 212 W. Va. 149, 155, 569 S.E.2d

225, 231 (2002). We summarized this standard of review in Syllabus Point 1 of Muscatell

v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996):

On appeal of an administrative order from a circuit court, this

Court is bound by the statutory standards contained in W. Va.

Code § 29A–5–4(a) and reviews questions of law presented de

novo; findings of fact by the administrative officer are

accorded deference unless the reviewing court believes the

findings to be clearly wrong.

(2) In excess of the statutory authority or jurisdiction of

the agency;

(3) Made upon unlawful procedures;

(4) Affected by other error of law;

(5) Clearly wrong in view of the reliable, probative, and

substantial evidence on the whole record; or

(6) Arbitrary or capricious or characterized by abuse of

discretion or clearly unwarranted exercise of discretion.

12

We believe that an identical approach governs our review of appeals to this

Court from the ICA addressing BOR decisions.

“[T]his Court has held that it is a settled principle of statutory construction

that courts presume the Legislature drafts and passes statutes with full knowledge of

existing law.” Charleston Gazette v. Smithers, 232 W. Va. 449, 467, 752 S.E.2d 603, 621

(2013). This includes familiarity with the rules of statutory construction. See Syl. Pt. 4,

Twentieth St. Bank v. Jacobs, 74 W. Va. 525, 82 S.E. 320 (1914) (“The Legislature is

presumed to know the rules and principles of construction adopted by the courts.”). We

may, therefore, presume that when it legislates, the Legislature “is aware of judicial

interpretations of existing statutes when it passes new laws[,]” United States v. Place, 693

F.3d 219, 229 (1st Cir. 2012), including past judicial practices under those statutes. See In

re Egebjerg, 574 F.3d 1045, 1050 (9th Cir. 2009) (“[W]e presume that when Congress

legislates, it is aware of past judicial interpretations and practices.”). Hence, we presume

that the Legislature was aware of our use of the language contained in West Virginia Code

§ 29A-5-4(g) as providing us our standard of review on appeal in administrative appeal

cases—statutory language the Legislature basically reiterated in West Virginia Code § 23-

5-12a(b). “And when ‘judicial interpretations have settled the meaning of an existing

statutory provision, repetition of the same language in a new statute indicates, as a general

matter, the intent to incorporate its . . . judicial interpretations as well.’” Merrill Lynch,

Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 85–86 (2006) (quoting Bragdon v.

13

Abbott, 524 U.S. 624, 645 (1998)); see also Lorillard v. Pons, 434 U.S. 575, 581 (1978)

(“[W]here, as here, Congress adopts a new law incorporating sections of a prior law,

Congress normally can be presumed to have had knowledge of the interpretation given to

the incorporated law, at least insofar as it affects the new statute.”). Consequently, since

the language in West Virginia Code § 29A-5-4 provided us our standard of review for

administrative appeals from circuit court, we believe the Legislature’s adoption of the

practically identical language in West Virginia Code § 23-12-5a necessarily provides us

our standard of review on appeal for reviewing ICA decisions addressing BOR orders.

Accordingly, we hold that on appeal of a decision of the West Virginia Workers’

Compensation Board of Review from the Intermediate Court of Appeals of West Virginia

to the Supreme Court of Appeals of West Virginia, the Supreme Court of Appeals is bound

by the statutory standards contained in West Virginia Code § 23-5-12a(b) (eff. Jan. 13,

2022). Questions of law are reviewed de novo, while findings of fact made by the Board

of Review are accorded deference unless the reviewing court believes the findings to be

clearly wrong.

Having set forth the standard of review governing this appeal, we now turn

to the merits of the parties’ arguments.

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III. Discussion

The Petitioner claims that the ICA erred in affirming the BOR’s decision to

apportion in his case. We agree.

The controlling statute in this case, West Virginia Code 23-4-9b (2003)

provides:

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. Nothing in this section requires that the degree of

the preexisting impairment be definitely ascertained or rated

prior to the injury received in the course of and resulting from

the employee’s employment or that benefits must have been

granted or paid for the preexisting impairment. The degree of

the preexisting impairment may be established at any time by

competent medical or other evidence. Notwithstanding the

foregoing provisions of this section, if the definitely

ascertainable preexisting impairment resulted from an injury

or disease previously held compensable and the impairment

had not been rated, benefits for the impairment shall be payable

to the claimant by or charged to the employer in whose employ

the injury or disease occurred. The employee shall also receive

the difference, if any, in the benefit rate applicable in the more

recent claim and the prior claim.

15

(emphasis added). The ICA concluded that under this section the terms “‘definitely

ascertainable’ and ‘definitely ascertained’ refer to the existence of a preexisting condition,

and not to the precise degree of impairment to be apportioned.” Duff, 247 W. Va. at 556,

882 S.E.2d at 922. This conclusion is erroneous because it is contrary to the plain language

of the statute. West Virginia Code § 23-4-9b requires both proof of a preexisting

condition(s) and proof of “a definitely ascertainable impairment resulting from” the

preexisting condition for the disability to be apportioned.5

In addressing the meaning of any statute, it is our duty to effectuate the

Legislature’s intent in passing the statute. “The primary object in construing a statute is to

ascertain and give effect to the intent of the Legislature.” Syl. Pt. 1, Smith v. State Work.

Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975). “That intention is to be garnered

first and foremost from the language the legislature uses in the statute.” Freeland v.

Marshall, 249 W. Va. 151, ___, 895 S.E.2d 6, 13 (2023). In short, “[w]hen a statute is clear

and unambiguous and the legislative intent is plain, it is the duty of the courts to apply the

5

While the ICA and the BOR relied on several of our memorandum decisions

to support the BOR’s judgment, none of these memorandum decisions directly addressed

the precise questions presented in this appeal. “‘[I]t is beyond debate that “[q]uestions

which merely lurk in the record, neither brought to the attention of the court nor ruled upon,

are not to be considered as having been so decided as to constitute precedents.”’” Frazier

v. Burcker, 248 W. Va. 21, 27, 886 S.E.2d 356, 362 (2023) (quoting Ret. Plans Committee

v. Jander, 140 S. Ct. 592, 597 (2020) (per curiam) (Gorsuch, J., concurring) (quoting

Webster v. Fall, 266 U.S. 507, 511(1925)).

16

statute in accordance with the legislative intent therein clearly expressed.” Syl. Pt. 1, Jarrell

v. State Work. Comp. Comm’r, 152 W. Va. 418, 163 S.E.2d 798 (1968).

West Virginia Code § 23-4-6(i) (2005), provides that the “Workers’

Compensation Commission shall adopt standards for the evaluation of claimants and the

determination of a claimant’s degree of whole body medical impairment.” These standards

are set out in the West Virginia Code of State Rules § 85-20-65.1 (2006):

Except as provided for in section 66 of this Rule, on and

after the effective date of this rule all evaluations,

examinations, reports, and opinions with regard to the degree

of permanent whole body medical impairment which an

injured worker has suffered shall be conducted and composed

in accordance with the “Guides to the Evaluation of Permanent

Impairment,” (4th ed. 1993), as published by the American

Medical Association.

This administrative rule goes on to state that:

If in any particular claim, the examiner is of the

opinion that the Guides or the section 64 substitutes cannot be

appropriately applied or that an impairment guide established

by a recognized medical specialty group may be more

appropriately applied, then the examiner’s report must

document and explain the basis for that opinion. Deviations

from the requirements of the Guides or the section 6 [sic]

substitutes shall not be the basis for excluding evidence from

consideration. Rather, in any such instance such deviations

shall be considered in determining the weight that will be given

to that evidence . . . .

Id. (emphasis added).

17

To that end, we find that West Virginia Code § 23-4-9b is clear and

unambiguous. West Virginia Code § 23-4-9b speaks not in terms of “condition(s),” but in

terms of “impairment,” which includes, but is broader than, condition. While proof of a

preexisting condition is necessary to apportionment, it is not itself sufficient. There must

be proof of the degree of “a definitely ascertainable impairment.” We believe that 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). 6 See, e.g.,

6

Courts have offered several convincing rationales for allocating the burden of proof

in an apportionment case to the employer:

First, apportionment is “an exception to the general rule

of compensability,” so once an employee has established

entitlement to compensability, it should be the employer’s

burden to demonstrate that an exception applies. See Cowin &

Co. v. Medina, 860 P.2d 535, 537–38 (Colo. App. 1992).

Second, the employer should bear the burden of proof because

it is the party that will benefit from a finding of apportionment.

See Deschenes v. Transco, Inc., 288 Conn. 303, 953 A.2d 13,

25 n.18 (2008); see also Cowin, 860 P.2d at 538 (explaining

that if an employee has established entitlement to

compensation and there was no evidence of a non-occupational

disease, then the default position would be no apportionment;

the employer must therefore show the existence of a non-

industrial disease for apportionment to be considered); cf.

Koesling v. Basamakis, 539 P.2d 1043, 1046 (Utah 1975)

(explaining that the “proponent of a proposition” generally has

18

Youngblood v. Ralph M. Parsons Co., 260 So. 2d 188, 190 (Miss. 1972) (“Having

established a compensable injury and its continuance, the burden of proof was upon the

employer-carrier to show not only a pre-existing infirmity which contributed to the results

following the injury, but also the degree to which it contributed to the permanent

disability.”).

the burden of production and persuasion). Third,

apportionment is comparable to the tort concept of

comparative negligence, on which the defendant carries the

burden of proof. See Cowin, 860 P.2d at 538–39. See generally

65A C.J.S. Negligence § 790 (March 2023 update)

(“Comparative negligence is an affirmative defense, and the

party asserting the defense bears the burden of proving that the

negligence of the other party was a cause in fact of the

accident.”). And finally, public policy supports placing the

burden of proof on the employer: issues of apportionment can

be unusually complicated because of the difficulty in

attributing and apportioning disability among various causes,

so it should be ‘the employer whose working conditions have

admittedly caused harm to the employee’ who should bear the

burden of “medical imprecision” inherent in the apportionment

analysis. See Cowin, 860 P.2d at 538; cf. Walls v. Hodo

Chevrolet Co., 302 So. 2d 862, 865–66 (Miss. 1974)

(concluding that it was appropriate to place the burden on the

employer to not only prove the existence of a pre-existing

condition for purposes of apportionment but to present medical

evidence that the pre-existing disease contributed to the

employee’s disability).

Barker v. Labor Comm’n, 528 P.3d 1260, 1265 (Utah Ct. App.), cert. denied, 534 P.3d 751

(Utah 2023).

19

To carry its burden, the Respondent points to the McKinney chiropractic

records, MRI imaging, and Dr. Mukkamala’s report. We will assume without deciding that

the McKinney records and MRI imaging demonstrate a preexisting condition. But even

with that, the Respondent still cannot prevail as it did not carry its additional burden of

proving the degree of impairment to be attributed to any preexisting condition for purposes

of apportionment. 7 To satisfy this later obligation, the Respondent looks to Dr.

Mukkamala’s report. We believe that Dr. Mukkamala’s report in this regard lacks probative

value. As such, it was not substantial evidence supporting the BOR’s decision thus making

the BOR’s decision clearly wrong. Moreover, Dr, Mukkamala’s 50-50 apportionment is

definitionally arbitrary. Consequently, the ICA necessarily erred in affirming the BOR in

this case.

It has been recognized that “most of the probative value of a medical opinion

comes from its reasoning.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); cf.

Kosik v. Dir., Off. of Work. Comp. Programs, 50 F. App’x 509, 512 n.7 (3d Cir. 2002)

(“[A] non-treating doctor’s opinion must be well supported and reasoned. A conclusory

medical opinion will not suffice.”). Medical reports without reasoning and rationale are

conclusory and perforce lack probative value. See In the Matter of the Compensation of

7

As the AMA Guides note, radiographic changes do not necessarily reflect

impairment: “[R]oentgenographic evidence of aging changes in the spine, called

osteoarthritis, are found in 40% of people by age 35 years, and there is a poor correlation

with symptoms.” Id. at 99 (footnote omitted).

20

Moe, 606 P.2d 644, 646 (Or. Ct. App. 1980) (refusing to attribute “much weight” to a

physician’s “bare conclusion” as to causation in a workers’ compensation case); White v.

Comm’r of Soc. Sec., 572 F.3d 272, 286 (6th Cir. 2009) (“Conclusory statements from

physicians are properly discounted by A[dministrative] L[aw] J[udges].”). These

recognitions are reflected by West Virginia Code of State Rules § 85-20-66 (2006) which

provides, in pertinent part:

66.1 The evidentiary weight to be given to a report will be

determined by how well it demonstrates that the evaluation and

examination that it memorializes were conducted in

accordance with the applicable Guides and that the opinion

with regard to the degree of permanent whole body medical

impairment suffered by an injured worker was arrived at and

composed in accordance with the requirements of the

applicable Guides.

...

66.4 To the extent that factors other than the compensable

injury may be affecting the injured worker’s whole body

medical impairment, the opinion stated in the report must, to

the extent medically possible, determine the contribution of

those other impairments whether resulting from an

occupational or a nonoccupational injury, disease, or any other

cause.

We read these subsections together as a cohesive whole. See, e.g., State ex

rel. McGraw v. W. Va. Ethics Comm’n, 200 W. Va. 723, 727, 490 S.E.2d 812, 816 (1997)

(“Every part of a statute must be construed in connection with the whole, so as to make all

21

parts harmonize if possible.”). 8 When read together, subsections 66.1 and 66.4 provide that

the evidentiary weight to be afforded to an apportionment decision in a medical report in a

West Virginia Code § 23-4-9b apportionment case is a function of the reasoning and

rationale the medical expert employs in determining that apportionment is warranted. See,

e.g., Ashley v. Work. Comp. Appeals Bd., 43 Cal. Rptr. 2d 589, 592–93 (Ct. App. 1995)

(“The medical opinion relied on for making apportionment determinations cannot be

speculative, and must disclose familiarity with the basis for apportionment. It must describe

in detail the exact nature of the disability to which apportionment is sought, and the basis

for the opinion.”).

In this case, the entirety of Dr. Mukkamala’s report regarding apportionment

provided:

Please note that the 25% whole person Impairment is resulting

from the preexisting degenerative spondyloarthropathy as well

as the compensable injury of 6/15/2020.

I will apportion Impairment and allocate 12% to the preexisting

degenerative spondyloarthropathy and 13% to the

compensable injury of 6/15/2020.

8

“‘[I]t is generally accepted that statutes and administrative regulations are

governed by the same rules of construction.’” Brickstreet Mut. Ins. Co. v. Zurich Am. Ins.

Co., 240 W. Va. 414, 426 n.18, 813 S.E.2d 67, 79 n.18 (2018) (quoting W. Va. Racing

Comm’n v. Reynolds, 236 W. Va. 398, 402, 780 S.E.2d 664, 668 (2015) (per curiam)

(quotations and citation omitted)); accord Goodman v. Shulkin, 870 F.3d 1383, 1386 (Fed.

Cir. 2017) (quoting Roberto v. Dep’t of Navy, 440 F.3d 1341, 1350 (Fed. Cir. 2006)

(citation omitted)) (“It is well established that ‘[t]he rules of statutory construction apply

when interpreting an agency regulation.’”).

22

Dr. Mukkamala’s report plainly lacks any reasoning and rationale supporting

or explaining his decision to apportion, especially in a 50-50 proportion. “[T]o be

substantial evidence, a medical report must indicate the reasoning behind the doctor’s

opinion[.]” 3 Modern Workers Compensation § 306:14 n.82 (Westlaw Nov. 2023 update)

(citing State Comp. Ins. Fund v. Work. Comp. Appeals Bd., 53 Cal. Rptr.3d 268 (Ct. App.

2007)). Dr. Mukkamala’s ipse dixit opinion lacks probative value and does not constitute

substantial evidence.

Moreover, Dr. Mukkamala’s unexplained 50-50 apportionment is arbitrary.

“‘A decision is arbitrary if it is without a rational basis, is based alone on one’s will and

not upon any course of reasoning and exercise of judgment, is made at pleasure, without

adequate determining principles, or is governed by no fixed rules or standards.’” Painter

v. Ballard, 237 W. Va. 502, 510, 788 S.E.2d 30, 38 (2016) (quoting Deese v. S.C. State Bd.

of Dentistry, 332 S.E.2d 539, 541 (S.C. Ct. App. 1985)). We cannot approve of the practice

of automatically selecting a 50-50 split in apportionment cases. Cf. Stout v. North Dakota

Work. Comp. Bureau, 253 N.W.2d 429, 431 (N.D. 1977) (“We do not approve of this

practice of arbitrarily selecting an apportionment figure of fifty percent in heart attack

cases.”).

On the other hand, Dr. Guberman’s report thoroughly explained the basis for

his decision not to apportion, applying the AMA Guides:

23

In my opinion, [the 25% Whole Person Impairment] should

entirely be apportioned for [the June 15, 2020] injury.

Although imaging studies do reveal evidence of degenerative

joint and disc disease of the lumbar spine, which was at least

in part present before the current injury, so far as can be

determined, the claimant would not have qualified for any

impairment rating using either the Range of Motion Model or

Table 85-20-C before the current injury. He did have

occasional pain in his lumbar spine but that did not radiate into

his legs, and he did not have numbness, tingling or weakness

of his legs due to the low back pain before the current injury

and was only intermittent and did not cause ongoing significant

interference with activities of daily living, functional

limitations or interference with work. Therefore, in my

opinion, the claimant would not have received any impairment

rating in regards to the lumbar spine before the current injury.

Furthermore, even if one were to attempt to apportion for any

preexisting condition, there is no objective medical, logical

rationale for determining any specific portion of the

impairment to apportion for any preexisting conditions.

Therefore, in my opinion, the claimant receives a 25 percent

impairment of the whole person for this injury.

The claimant previously received a 30 percent impairment of

the whole person for this injury based on an independent

medical evaluation performed by Dr. Mukkamala dated

6/9/2021. At that time, he also recommended a 25 percent

impairment of the whole person of the claimant’s lumbar spine

from Table 85-20-C. However, as stated in the sixth paragraph

of page 9 of his report he allocated “12[%] to the preexisting

degenerative spondyloarthropathy and 13[%] to the

compensable injury of 6/15/2020.” However, as mentioned

above, there is no evidence the claimant would have had any

impairment rating in regard to his lumbar spine before the

current injury. Furthermore, degenerative spondyloarthropathy

in and of itself would not entitle the claimant to any impairment

rating using either the Range of Motion Model or Table 85-20-

C. Furthermore, Dr. Mukkamala does not offer any rationale

for why he split the impairment rating in half (and then rounded

up from 12.5 to 13 percent impairment of the whole person for

the injury).

24

Therefore, in my opinion, the entire 25 percent impairment of

the whole person should be apportioned for this injury. Since

the claimant has already received a 13 percent impairment of

the whole person for this injury, I am recommending he receive

an additional 12 percent impairment of the whole person for

this injury in accordance with Rule 20, Section VII.

For all the above reasons, the judgment of the ICA must be reversed. 9

IV. Conclusion

The judgment of the Intermediate Court of Appeals of West Virginia is reversed,

and this case is remanded to the West Virginia Workers’ Compensation Board of Review

to enter an order granting the Petitioner an additional 12% Permanent Partial Disability

award for a total Permanent Partial Disability award of 25%.

Reversed and remanded with directions.

9

We are not unmindful that West Virginia Code § 23-5-12a(d) (2022) permits the

ICA, instead of affirming, reversing or modifying a BOR decision, to “upon motion of any

party or upon its own motion, for good cause shown, to be set forth in the order of the court,

remand the case to the Board of Review for the taking of such new, additional, or further

evidence as in the opinion of the court [it] considers necessary for a full and complete

development of the facts of the case.” The ICA’s opinion did not address this subsection

and neither party before us does either. Therefore, we elect not to address it.

25