The Preexisting Conditions Question in West Virginia Workers’ Compensation Cases – Berry v. Gentleman Gene Trucking

One of the main issues in many workers’ compensation cases is the question of whether the worker suffered a particular injury as a result of the workplace accident or whether it was a preexisting condition at the time of the accident. A recent ruling out of the West Virginia Supreme Court shows just how important medical evidence is in answering this question.

youbethejudge.jpegMr. Berry was working as a truck driver for Gentleman Gene in April 2012 when he injured himself on the job while moving a mail cart. He was diagnosed with a back strain, and later with a herniated disc, spinal stenosis, and mid-lumbar radiculopathy. Berry filed a claim for workers’ compensation benefits as a result of the injury.

The trouble was that Berry had a long history of back problems prior to the accident, dating back to as early as 1980. These injuries were related to various on-the-job strains as well as Berry’s involvement in a car accident at work. Among other ailments, Berry had been treated for disc bulges, facet arthropathy, stenosis of the lumbar spine, and foraminal narrowing. Seven months before the mail cart incident, Berry underwent an MRI that showed degenerative changes with spondylosis throughout the lumbar spine, as well as multiple levels of disc space narrowing and disc desiccation. It also showed various disc bulges and protrusions.

A claims administrator initially rejected Berry’s workers’ compensation claim, but that decision was later reversed by the Office of Judges. The Office found that Berry had a compensable claim for thoracolumbar strain, concluding that he clearly suffered increased back pain following the incident. The Office said Berry wasn’t entitled to benefits for the herniated disc and other injuries because they were preexisting. The Office pointed to a 2011 MRI showing that Berry already suffered from related injuries in the same area of the back. When that MRI was compared to an MRI performed after the mail art accident, the Office said, it showed no change to the injury. The Board of Review later affirmed this decision.

On appeal, Berry argued that the Board of Review should have sent the case back to the Office of Judges to consider the results of an independent medical examination that was completed in September 2012. He also said that Gentleman Gene was late in making the report issued following the examination available to Berry. The independent examiner concluded that some of Berry’s existing injuries may have been made worse in the mail cart accident.

Affirming the decision, the Supreme Court found that the injuries weren’t compensable because they were preexisting. Since the independent examination wasn’t offered as evidence to the Office of Judges, the Court said it couldn’t consider the evidence now. Despite Berry’s argument otherwise, the Court said the law didn’t require Gentleman Gene to produce all of the evidence in its possession without a specific request for that evidence.

As this case makes clear, evidence issues can make or break a workers’ compensation case. If you or a loved one has been injured in an accident on the job, the Wolfe Law Firm can help. Our West Virginia workers’ compensation lawyers have been serving clients throughout the state for more than 25 years. Located in Elkins, West Virginia, the firm represents clients in a wide range of injury, criminal defense, and bankruptcy matters. Call us at 1-877-637-5756 or contact us online for a free consultation.

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