Background
Phillip Harris, an employee of AHF, LLC, sustained a compensable work-related right shoulder injury. Following the injury, he developed pain and range-of-motion deficits. Jennifer Lultschik, M.D., evaluated Harris and found a 3% permanent partial disability rating, but attributed the entire impairment to preexisting conditions rather than the work injury, resulting in a 0% award for the compensable claim. A separate evaluating physician, orthopedic surgeon Richard E. Topping, M.D., attributed Harris’s shoulder condition to the compensable work injury.
The claim administrator issued an order in December 2022 granting Harris a 0% permanent partial disability award. The Workers’ Compensation Board of Review affirmed that order in November 2024, crediting Dr. Lultschik’s apportionment opinion over Dr. Topping’s causation opinion. The Intermediate Court of Appeals (“ICA”) affirmed the Board of Review in a June 2025 memorandum decision, and Harris petitioned the Supreme Court of Appeals of West Virginia for further review.
The Court’s Holding
The Supreme Court of Appeals summarily affirmed the ICA’s decision without oral argument, finding no reversible error. The court applied its standard of de novo review for questions of law and deferential review of the Board of Review’s factual findings, reversing only if those findings are clearly wrong.
The court agreed with the employer’s position that Dr. Lultschik’s impairment rating — the only medical opinion in the record addressing the degree of whole-person impairment attributable to the compensable injury — had to be accepted as the evidentiary basis for the award. Because Harris failed to offer medical evidence specifically contradicting Dr. Lultschik’s impairment rating and apportionment, he could not overcome the Board of Review’s findings. Dr. Topping’s opinion addressing causation was insufficient to undercut Dr. Lultschik’s apportionment of the impairment to preexisting conditions.
Key Takeaways
- A workers’ compensation claimant who wishes to challenge a physician’s impairment rating and apportionment must provide contradicting medical evidence on those specific points; a competing causation opinion alone is insufficient.
- The Board of Review’s factual findings are entitled to deference and will not be disturbed on appeal unless clearly wrong.
- Where the record contains only one medical opinion addressing the degree of whole-person impairment from a compensable injury, that opinion controls the award, even if other physicians attribute the underlying condition to the work injury.
Why It Matters
This decision reinforces the evidentiary burden workers’ compensation claimants face in West Virginia when disputing impairment ratings that apportion disability to preexisting conditions. It signals that claimants must secure a medical expert who directly addresses and rebuts the apportionment methodology, not merely one who attributes causation to the work accident.
For practitioners, the case is a reminder to obtain comprehensive independent medical evaluations that speak to both causation and the apportionment of impairment, particularly where the claimant had any prior history — or where the employer’s examiner may assert preexisting conditions regardless of that history.