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Employers have stronger burden in disability claims: West Virginia court


A West Virginia Supreme Court decision Monday is poised to affect the way workers compensation disability determinations are made in comp claims.

The high court overturned an Intermediate Court of Appeals decision affirming a Workers’ Compensation Board of Review determination that a Kanawha County sheriff’s deputy was entitled to 13% permanent disability benefits, not the 25% sought by the claimant.

The case addressed apportionment in disability claims when injured workers seek benefits for compensable injuries aggravated by preexisting conditions.

In David Duff II v. Kanawha County Commission, the Supreme Court said employers must show that a disability impairment that partially results from preexisting conditions contributed to a claimant’s overall impairment after the compensable injury.

Mr. Duff sought a 25% permanent partial disability award based on an independent medical evaluation, but the workers comp board awarded 13% after factoring in apportionment.

Mr. Duff, who injured his back while lifting a bomb detector robot, argued apportionment wasn’t proper, but the lower appeals court disagreed and affirmed the lower percentage of disability.

The medical evaluator determined Mr. Duff had a 25% whole-person impairment but attributed 13% to the work injury.

The high court, drawing a distinction between “conditions” and “impairment,” said unless a work injury results in total permanent disability, preexisting conditions cannot be taken into consideration when deciding compensation.

The court remanded the case to the workers comp review board to give Mr. Duff an additional 12% permanent partial disability award.