W. Va. Top Court Sends Parts Manager’s Case Back for *Moore* Analysis

31 Oct, 2023 Frank Ferreri


Charleston, WV (WorkersCompensation.com) -- When an administrative decision goes up on appeal to a court, it may be the case that the court will want the lower bodies to show their work, in a manner of speaking.

Such was the case in May v. B E T, Ltd., No. 22-0121 (W. Va. 10/23/23), where West Viriginia's highest court found that the Board of Review neglected to carry out the analysis required under one of the court's precedential cases.

A parts manager, who had previously received treatment for lower back pain, alleged that he experienced a back injury in the course of his employment. When the manager sought treatment, he reported that he was pulling a pallet of ammunition when he felt a sudden onset of severe low back pain.

A CT scan showed mild degenerative changes in the lumbar spine with no evidence of acute injury, and the doctor's report indicated that the back injury occurred because the pallet jack was too heavy. However, the diagnoses were listed as acute low back pain and muscle spasms.

Following two weeks of physical therapy, an x-ray indicated degenerative changes and no evidence of acute injury.

The manager was off of work for four weeks before being laid off. Although he said he had never experienced symptoms like the ones that result from the alleged pallet-related injury, the manager admitted that he had previously "experienced aches and pains."

Regarding the manager's claim for authorization of lower back physical therapy, the Office of Judges affirmed the claims administrator's decisions rejecting the claim. In reaching its decision, the Office of Judges highlighted that:

+ The manager had a history of low back pain.
+ The manager failed to mention previous treatment he had received for back pain but instead denied any prior injuries or issues with his lower back.
+ The manager testified in his deposition that his prior back issues were not as severe as the alleged injury because his prior symptoms did not prevent him from working or doing normal daily activities.
+ The manager was previously treated several times for lower back pain with medications and injections, and physical therapy was recommended.

Ultimately, the Office of Judges concluded that the manager did not sustain a discrete a new injury during the pallet incident.

The Board of Review affirmed, prompting the manager to appeal to court.

In West Virginia, a non-compensable preexisting injury may not be added as a compensable component of a claim for workers’ compensation medical benefits merely because it may have been aggravated by a compensable injury. To the extent that the aggravation of a non-compensable preexisting injury results in a discrete new injury, that new injury may be found compensable.

The state's high court has explained that a claimant's disability will be presumed to have result from a compensable injury if both of the following conditions are met:

(1) Before the injury, the claimant's preexisting disease or condition was asymptomatic.
(2) Following the injury, the symptoms of the disabling disease or condition appeared and continuously manifested themselves.

Workers' Comp 101: In West Virginia, the two-part test regarding preexisting conditions and their aggravation by a potentially compensable injury is known as the Moore analysis because it comes from Moore v. ICG Tygart Valley, Inc., 879 S.E. 2d 779 (W. Va. 2022). Even if the answer to both parts is "yes," there still must be sufficient medical evidence to show a causal relationship between the compensable injury and the disability, or the nature of the accident, combined with the other facts of the case, raises a natural inference of causation. The presumption is not conclusive. Instead, an employer can rebut it.

In the manager's case, the court decided it had to go back to the Board of Review because it was "unclear from the record what, if any, symptoms [the manager] was experiencing prior to the alleged injury at issue."

On remand, the court directed the Board of Review to further develop the evidentiary record and conduct the Moore analysis.

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    About The Author

    • Frank Ferreri

      Frank Ferreri, M.A., J.D. covers workers' compensation legal issues. He has published books, articles, and other material on multiple areas of employment, insurance, and disability law. Frank received his master's degree from the University of South Florida and juris doctor from the University of Florida Levin College of Law. Frank encourages everyone to consider helping out the Kind Souls Foundation and Kids' Chance of America.

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