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WVSCA Affirms Grant of Lower PPD Award
The West Virginia Supreme Court of Appeals affirmed the Workers' Compensation Board of Review order reversing the Administrative Law Judge's Decision, which reversed BrickStreet's January 30, 2020 order granting a 19% PPD award, and awarded 33% PPD. The Board of Review vacated the ALJ decision and reinstated BrickStreet's 19% PPD award. In a 3-2 decision, the Supreme Court agreed with the Board of Review and ruled the Board was correct to find claimant had definitely ascertainable preexisting cervical impairment and apportionment was proper under WV Code §23-4-9b and SWVA, Inc. v. Birch, 237 W. Va. 393, 399, 787 S.E.2d 664, 670 (2016). The Court noted the evidentiary record contained multiple treatment notes and diagnostic imaging reports showing claimant suffered from cervical spine symptoms and degenerative conditions prior to the compensable injury. The Court found a doctor's report was the only reliable evaluation of record to consider apportionment for preexisting impairment. The Court found the Board of Review was correct to affirm the claim administrator's grant of a 19% PPD award based on the physician's evaluation.

Workers' Compensation H. Dill Battle III