Larry J. Shepherd appeals a decision by the West Virginia Workers’ Compensation Board regarding a permanent partial disability award. The claims administrator initially granted him a 9% permanent partial disability on March 15, 2019, a decision reaffirmed on March 18, 2019. The Workers’ Compensation Office of Judges upheld this ruling on October 5, 2020, and the Board of Review affirmed it on April 22, 2021. The Supreme Court of Appeals reviewed the case, including the records and briefs, determining that no substantial legal questions or prejudicial errors existed. The Court emphasized that it must defer to the Board's findings unless there are clear constitutional or statutory violations or erroneous legal conclusions. Shepherd, a drywall finisher, sustained lower back and neck injuries from a fall on August 10, 2016. His pre-existing conditions included multilevel degenerative disc disease and arthritis, documented in prior medical examinations. The claim was deemed compensable for lower back strain and cervical sprain on October 3, 2016, despite his history of lumbar and cervical issues. Treatment records indicate ongoing management of his degenerative conditions.
Mr. Shepherd has a documented history of osteoarthritis and degenerative joint disease. An Independent Medical Evaluation conducted by Dr. Paul Bachwitt on March 4, 2019, revealed that Mr. Shepherd had undergone x-rays in August 2016, indicating multilevel degenerative disease without acute injury. Following a second injury on February 2, 2017, affecting his neck, back, and arms, Dr. Bachwitt determined that Mr. Shepherd had reached maximum medical improvement and required no further treatment for his lumbar and cervical sprains. He assessed a 4% impairment for the cervical spine based on the AMA Guides and an additional 6% for range of motion loss, placing Mr. Shepherd in Category II of West Virginia Code 85-20-E, resulting in an adjusted rating of 8%. Dr. Bachwitt apportioned 4% of this impairment to preexisting degenerative disc disease. For the lumbar spine, he found 5% impairment, but deemed range of motion measurements unreliable, leading to a combined total impairment of 9%.
On August 13, 2019, Dr. Bruce Guberman conducted another Independent Medical Evaluation, also concluding Mr. Shepherd had reached maximum medical improvement. Dr. Guberman reported a 4% impairment for the cervical spine and 8% for range of motion loss, placing Mr. Shepherd in the same category as Dr. Bachwitt but did not apportion any impairment to preexisting conditions, asserting that Mr. Shepherd was asymptomatic prior to the compensable injury. For the lumbar spine, he found a 5% impairment and 7% for range of motion, adjusting the rating to 8% and attributing all impairments to the compensable injury. Dr. Guberman disputed Dr. Bachwitt's apportionment and the credibility of his range of motion results.
In a January 22, 2020, addendum, Dr. Bachwitt reaffirmed his previous findings, emphasizing the unreliability of range of motion measurements and noting Mr. Shepherd's preexisting degenerative changes. Subsequently, Dr. Prasadarao Mukkamala's evaluation on February 26, 2020, assigned a 4% impairment for the lumbar spine and 14% for range of motion loss, placing Mr. Shepherd in the same cervical category and apportioning half of the impairment to preexisting degenerative spondyloarthropathy.
Dr. Mukkamala assessed Mr. Shepherd's lumbar spine impairment as 5% under Lumbar Category II of the AMA Guides and 11% for range of motion loss, adjusting the final rating to 8% after accounting for a 4% impairment due to preexisting degenerative spondyloarthropathy. He criticized Dr. Guberman's evaluation, deeming it invalid for not considering Mr. Shepherd's preexisting condition. The claims administrator awarded Mr. Shepherd a 9% permanent partial disability on March 15 and 18, 2020, which was affirmed by the Office of Judges in an October 5, 2020, Order. The Office of Judges found Mr. Shepherd did not provide sufficient evidence to justify a higher award than 9%, noting that only Dr. Guberman suggested a greater impairment (15%) but failed to apportion for preexisting conditions. Evidence indicated Mr. Shepherd's degenerative issues were symptomatic prior to the injury, contradicting Dr. Guberman's assessment. The Board of Review confirmed the Office of Judges' decision on April 22, 2021, emphasizing that only impairments directly caused by the compensable injury should be considered for disability awards. The conclusion was that Mr. Shepherd is entitled to a 9% permanent partial disability award, affirmed on September 19, 2022, by a panel of justices.
