E-Alert Case Updates

West Virginia’s Workers’ Compensation Office of Judges Must Fully Consider Each Independent Medical Evaluation To Resolve Claims

Smith v. HWM Truck Lines, Inc.
Case No. 11-1437 (West Virginia Supreme Court of Appeals)
by Joel M. Celso, Summer Associate
Semmes, Bowen & Semmes (www.semmes.com)

In this workers’ compensation case, the West Virginia Supreme Court of Appeals reversed the Board of Review’s Final Order which affirmed the Workers’ Compensation Office of Judges (the “OOJ”), which had denied a permanent partial disability award to the Plaintiff, James M. Smith. Because the Court found that the Board of Review’s decision was based on a material misstatement or mischaracterization of the evidence, it remanded the claim to the OOJ.

The case arose out of an incident which occurred at Mr. Smith’s workplace on January 7, 2009. Mr. Smith sustained an injury when he fell while climbing off an end loader. Mr. Smith underwent three (3) independent medical evaluations with Dr. Guberman, Dr. Snead, and Dr. Martin to determine the amount of permanent impairment resulting from his injury. After separate evaluations of Mr. Smith, Drs. Guberman and Martin both recommended a 0 percent permanent partial disability award; and, accordingly, placed Mr. Smith in Category I of W. VA. CODE R. § 85-20-E. Dr. Snead, however, evaluated Mr. Smith and found evidence of a cervical disc herniation with a mild nerve root impingement. He placed Mr. Smith in Category II of W. VA. CODE R. § 85-20-E, and recommended an 8 percent permanent partial disability award.

Mr. Smith filed a workers’ compensation claim which was denied by the claims administrator on July 17, 2009. The OOJ affirmed that decision, holding that Mr. Smith sustained no permanent partial disability as a result of his injury. After the Board of Review affirmed the OOJ, Mr. Smith appealed the decision, arguing that he was entitled to an 8 percent permanent partial disability award, per the opinion of Dr. Snead.

Upon review, the Supreme Court of Appeals found three (3) errors demonstrating that the OOJ had failed to consider properly the evidence of record. First, the OOJ stated that the medical reports in evidence had used a diagnostic related estimate (“DRE”) to rate the impairment of Mr. Smith’s spine injury. The OOJ then noted that Supreme Court of Appeals had invalidated the use of the DRE method in Respass v. Workers’ Comp. Div., 212 W. Va. 86 (2002), and stated that the portion of the medical report that used the DRE methodology was deemed unreliable. The OOJ, however, never identified which report used the DRE methodology. Next, the OOJ reviewed the measurements obtained by each evaluator to determine Mr. Smith’s range of motion and stated only that “there was no consistency in this,” without specifying how that evidence informed their decision. Finally, the OOJ discussed Category II of W. VA. CODE R. § 85-20-E, and found that it was inappropriate to place Mr. Smith in that category because Mr. Smith’s complaints of radicular pain could not be verified. The OOJ specifically stated, however, that the proper criterion for placement in Category II was complaints of radicular pain, with no objective findings required.

Based on the three (3) errors it found, the Court held that the OOJ had failed to analyze properly the independent medical evaluations. In light of that finding, the Court further found that the Board of Review’s decision to affirm the OOJ was based on a material misstatement or mischaracterization of the evidence on record. Therefore, the Court reversed the Board of Review and remanded the claim to the OOJ to fully consider the independent medical evaluations of the three (3) doctors and to determine the amount of Mr. Smith’s permanent impairment, if any.