The Intermediate Court of Appeals of West Virginia has sided with Becky Bell, an employee of Pilgrim’s Pride Corporation, in a workers’ compensation case. The court affirmed a decision by the Workers’ Compensation Board of Review, granting Ms. Bell an additional 20% permanent partial disability (PPD) award, for a total of 33% PPD. This decision reverses a previous ruling that had awarded her only 13% PPD.
The Incident and Initial Claim
The case stems from an injury Ms. Bell sustained on June 12, 2018, while working as a box maker for Pilgrim’s Pride. Her job involved pulling plastic liners and lining boxes, and she experienced pain in her right shoulder while performing this task. The claim administrator initially held the claim compensable for right shoulder strain, right carpal tunnel syndrome, and cervical region radiculopathy.
Medical Evaluations and Conflicting Opinions
Over the course of the case, several medical professionals evaluated Ms. Bell, leading to conflicting opinions about the extent of her injuries and their connection to the workplace incident.
Dr. Joseph Grady evaluated Ms. Bell in 2020. He determined that she had reached maximum medical improvement (MMI) for her right shoulder strain and carpal tunnel syndrome, but not for her cervical radiculopathy. He also stated that he would not apportion for any preexisting conditions.
Later, Dr. Jennifer Lultschik performed an independent medical evaluation (IME) at the request of Pilgrim’s Pride. She assessed Ms. Bell’s conditions and concluded that the cervical radiculopathy was not related to the work injury, but rather due to chronic degenerative disease. She also found that Ms. Bell was at MMI for all three conditions and recommended a 13% impairment rating for the compensable injury. Based on Dr. Lultschik’s report, the claim administrator issued an order granting Ms. Bell a 13% PPD award. Ms. Bell protested this order.
Dr. Bruce Guberman, in another IME, found that Ms. Bell’s conditions were related to the work injury. He concluded that Ms. Bell had a 33% whole person impairment (WPI) for the compensable injury and recommended an additional 20% PPD award.
Dr. Hicks Manson, also at the request of Pilgrim’s Pride, recommended a 17% WPI. He apportioned a portion of Ms. Bell’s cervical radiculopathy to a preexisting condition, and did not believe right carpal tunnel syndrome was caused by the compensable injury.
The Board’s Decision
The Workers’ Compensation Board of Review sided with Dr. Guberman’s assessment and granted Ms. Bell an additional 20% PPD award, bringing her total award to 33% PPD. The Board found Dr. Guberman’s report to be reliable and persuasive. Pilgrim’s Pride then appealed the Board’s decision.
The Court’s Reasoning
The Intermediate Court of Appeals, in its ruling, upheld the Board’s decision. The court’s jurisdiction for this appeal is granted under West Virginia Code § 51-11-4 (2024). The court found no substantial question of law and no prejudicial error. The court cited the standard of review, which states that the court can reverse, vacate, or modify the Board’s decision if the rights of the petitioner have been prejudiced because the Board’s findings are in violation of statutory provisions, in excess of statutory authority or jurisdiction, made upon unlawful procedures, affected by other error of law, clearly wrong in view of the reliable, probative, and substantial evidence, or arbitrary or capricious.
The court considered Pilgrim’s Pride’s arguments, which centered on the need for apportionment of preexisting impairment and the validity of Dr. Lultschik’s report. The court referenced the case of *Duff v. Kanawha Cnty. Comm’n*, which established that the employer has the burden of proving that apportionment is warranted in a workers’ compensation case. This means the employer must prove that the claimant has a definitely ascertainable impairment resulting from a preexisting condition and the degree of impairment attributable to that condition.
The court concluded that Pilgrim’s Pride did not meet its burden of proving that the Board was wrong in finding Ms. Bell had a 33% WPI as a result of the compensable injury. The court noted that the Board was not incorrect in finding that Ms. Bell’s cervical condition was asymptomatic before the work injury, as acknowledged by Dr. Guberman and Dr. Lultschik. The court also found that the Board did not err in finding that Dr. Guberman’s evaluation provided the most reliable opinion regarding Ms. Bell’s impairment from the compensable injury.
The court emphasized the deferential standard of review, which presumes that an agency’s actions are valid if supported by substantial evidence or a rational basis. Based on this standard, the court affirmed the Board’s decision.
The Outcome
The Intermediate Court of Appeals’ decision affirms the Workers’ Compensation Board of Review’s order. Ms. Bell will receive the additional 20% PPD award, bringing her total PPD award to 33%.