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West Virginia Supreme Court overturns Intermediate Court for 1st time

Justices’ ruling breaks big new legal ground

By Matt Harvey, The Exponent Telegram

CHARLESTON, W.Va. — The West Virginia Supreme Court has overturned a ruling by the fledgling Intermediate Court of Appeals for the first time, and clarified workers’ compensation law in the process.

In an opinion authored by Justice John Hutchison and filed Tuesday, the justices ruled that a Kanawha County sheriff’s deputy should have received a 25% permanent disability award instead of the 13% prescribed by the West Virginia Workers’ Compensation Board of Review and affirmed by the Intermediate Court.

The key syllabus point in the state Supreme Court’s ruling is 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).”

Before now, that burden of proof on employers wasn’t specified, according to Hutchison’s ruling.

In the case before the court, a Kanawha deputy assigned to the bomb squad hurt himself June 15, 2020, while lifting an explosives detector robot out of the back of a truck, according to the opinion.

Two doctors agreed that the deputy suffered a 25% permanent disability, but the physicians disagreed on whether all of that disability was due to the June 15, 2020, incident or whether some of the disability involved a preexisting condition.

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