West Virginia Supreme Court Approves Impairment Tables

Spilman Thomas & Battle, PLLC

Case Report
Gore v. WVOIC and Boone County Parks & Recreation Comm’n, (W.Va. 3/28/2013)
On March 28, 2013, the West Virginia Supreme Court of Appeals issued a decision supporting the ranges of permanent impairment in spinal injuries which limit excessive permanent partial disability awards.  In a Memorandum Decision in Gore v. WVOIC and Boone County Parks & Recreation Comm’n, No. 11-0612 (W.Va. 3/28/2013), the Court addressed the petitioner’s challenge to the Rule 20 tables for ranges of permanent impairment for spinal injuries.  In West Virginia, the basic operation for permanent impairment ratings for lumbar, thoracic, and cervical injuries requires the IME physician to assess impairment pursuant to the range of motion model for impairment found in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition.  The resulting impairment rating is then applied to the appropriate category in the corresponding table in W. Va. C.S.R. § 85-20 (“Rule 20”) and adjusted accordingly, if needed, to fall within the appropriate range. 
The claimant challenged the rule and procedure, arguing that although the workers’ compensation statute gives the Commission authority to “adopt standards for the evaluation of claimants and the determination of a claimant’s degree of whole body medical impairment,” the Legislature clearly intended that a claimant be compensated based upon medical impairment personal to him.  The claimant argued that W. Va. C.S.R. §§ 85-20-64.1 and 64.2 are in direct conflict with W. Va. Code § 23-4-6(i).  The claimant asserted that each claimant is to be compensated commensurate with the degree of his or her medical impairment, not a preconceived estimate of impairment based upon diagnostic codes.  The claimant argued that the Rule 20 tables for ranges of impairment base permanent partial disability awards on diagnosis rather than actual whole person medical impairment specific to the claimant.  He also noted that the Court had previously determined in Repass v. Workers’ Compensation Division, 212 W.Va. 86, 569 S.E.2d 162 (2002) that diagnosis based disability ratings were invalid and unreliable because they conflict with the proper time for such ratings, the proper treatment of progressive injuries, the procedure for reopening, and consideration of second injuries.
In the Gore opinion, an unanimous Court recognized that the Legislature charged the Board of Managers in W. Va. Code § 23-4-3b with the task of adopting ranges of permanent partial disability for common injuries.  The Court further found that the Board’s decision to determine impairment by using the AMA Guides Range of Motion model and applying that to the appropriate table is consistent with the intention of the Legislature as expressed in W. Va. Code § 23-4-6(i).  The Court also cited to their prior decision in Simpson v. West Virginia Office of Insurance Commissioner, 223 W. Va. 495, 678 S.E.2d 1 (2009), where the Court stated that W. Va. C.S.R. Table § 85-20-C (2004) is valid and is a proper exercise of the rule-making authority delegated to the Workers’ Compensation Board of Managers by the Legislature in W. Va. Code § 234-3b(b) (2005). 
The Gore decision upholds a standard developed by the Board of Managers and which has been a key factor in containing what had previously been rather excessive PPD awards for common spinal injuries.

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