West Virginia Court Clarifies Disability Apportionment Burden of Proof

Employers bear the burden of proving that apportionment of a disability award is warranted in a workers’ compensation case; it is not enough to merely demonstrate the existence of a preexisting condition, according to a recent decision by the West Virginia Supreme Court of Appeals.

In a case involving David Duff II, a Kanawha County Deputy Sheriff injured on duty in June 2020, the Supreme Court reversed the Intermediate Court of Appeals (ICA) and the West Virginia Workers’ Compensation Board of Review’s (BOR) decision to apportion a 13% Permanent Partial Disability (PPD) award based on an alleged preexisting condition. Duff had initially been evaluated as having a 25% whole person impairment.

The Supreme Court ruled that under West Virginia law, the employer must prove that apportionment is justified by showing that the claimant has a definite impairment resulting from a preexisting condition. Furthermore, the employer must demonstrate the degree of impairment attributable to the preexisting condition.

In Duff’s case, the Court found that while the medical records indicated a preexisting condition, the employer failed to prove the degree of impairment attributable to this condition for apportionment purposes. The medical report used by the employer was deemed lacking in probative value due to its failure to provide reasoning and rationale for the apportionment decision, rendering it arbitrary.

As a result, the Supreme Court reversed the ICA’s judgment and remanded the case to the BOR with instructions to grant Duff an additional 12% PPD award, for a total PPD award of 25%.

This decision in David Duff, II, vs. Kanawha County Commission underscores the burden of proof requirements for employers seeking to apportion disability awards in workers’ compensation cases in West Virginia. &