Background
Katie Gee, a thirty-year-old coal miner, sustained a workplace injury on January 26, 2024, when a rock struck her on the right side of her back and right shoulder. She began treatment with orthopedic surgeon Dr. Jeffrey Abbott in March 2024, who documented radiating pain into her neck, shoulder blade pain, and right arm numbness and tingling, and diagnosed cervical radiculopathy. In July 2024, Dr. Abbott filed a diagnosis update seeking to add cervical radiculopathy as a compensable condition in her workers’ compensation claim. Gee testified that she had no pre-existing neck or shoulder problems before the injury.
The claim administrator issued three separate orders: closing the claim for temporary total disability (TTD) benefits, denying authorization for a cold compression therapy unit and shoulder wrap recommended by Dr. Abbott, and denying the addition of cervical radiculopathy as a compensable condition. The Workers’ Compensation Board of Review affirmed all three orders, crediting the opinion of physiatrist Dr. Prasadarao Mukkamala—who examined Gee once in May 2024—over Dr. Abbott’s treating-physician diagnosis, without fully explaining the basis for that choice.
The Intermediate Court of Appeals (ICA) affirmed the Board on the TTD closure and the denial of cervical radiculopathy, but reversed the denial of the cold compression therapy unit and shoulder wrap, finding that device medically necessary. Gee then petitioned the Supreme Court of Appeals, arguing the ICA erred in upholding the TTD closure and the refusal to add cervical radiculopathy as a compensable condition.
The Court’s Holding
A three-justice majority summarily affirmed the ICA’s memorandum decision in its entirety, finding no reversible error. Applying a deferential standard of review to the Board of Review’s factual findings under Duff v. Kanawha County Commission, 250 W. Va. 510, 905 S.E.2d 528 (2024), the majority concluded that the record supported the ICA’s conclusions regarding both the closure of TTD benefits and the denial of cervical radiculopathy as a compensable secondary condition. The cold compression therapy unit and shoulder wrap—the portion of the ICA decision favorable to Gee—were also affirmed, meaning that relief stands.
Two justices dissented. Writing for himself and Justice Wooton, Justice Flanigan argued that the Board of Review failed to satisfy its statutory obligation under West Virginia Code § 23-4-1g(a) to weigh all medical evidence against specific criteria of “relevance, credibility, materiality and reliability.” The dissent contended that the Board simply defaulted to Dr. Mukkamala’s one-time evaluation without explaining why it credited that opinion over Dr. Abbott’s treating-physician findings, without addressing Dr. Ronald Fadel’s records-review noting symptomatic overlap between shoulder and cervical conditions, and without acknowledging Gee’s uncontroverted deposition testimony of no pre-injury neck problems. The dissenters would have vacated and remanded with instructions for the Board to conduct a proper, articulated weighing of the evidence.
Key Takeaways
- The majority affirmed that the Board of Review’s finding—crediting a one-time independent medical examiner over a treating orthopedic surgeon on the cervical radiculopathy question—was supported by substantial evidence and was not clearly wrong.
- The cold compression therapy unit and shoulder wrap ordered by Dr. Abbott were authorized as medically necessary, that portion of the ICA’s reversal being undisturbed.
- The dissent underscores that West Virginia Code § 23-4-1g(a) requires factfinders to articulate their reasons for choosing one medical opinion over another and to consider all submitted evidence; a bare announcement that one expert is “reliable” is insufficient and may raise due process concerns.
- When medical evidence is of equal evidentiary weight, § 23-4-1g(a) directs the factfinder to adopt the resolution most favorable to the claimant—a default rule the dissent argued was not properly applied here.
Why It Matters
This decision illustrates the high deference West Virginia appellate courts extend to the Workers’ Compensation Board of Review’s factual determinations, even where a treating specialist’s diagnosis conflicts with that of a one-time independent examiner. For claimants and their counsel, it reinforces how difficult it is to overturn a Board credibility determination on appeal absent a showing that the decision is clearly wrong in light of the whole record.
The pointed dissent, however, signals ongoing judicial concern about whether West Virginia’s adjudicatory process adequately enforces § 23-4-1g(a)’s mandate for reasoned, evidence-specific decision-making. Practitioners representing injured workers should carefully document the record to ensure that treating-physician opinions, corroborating records-review findings, and uncontroverted claimant testimony are all explicitly addressed in Board orders—creating a cleaner basis for appeal if the Board fails to engage with that evidence.