        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                 January 2016 Term


                                   _____________
                                                                 FILED
                                    No. 14-0983
                                                            February 10, 2016
                                                                released at 3:00 p.m.
                                   _____________              RORY L. PERRY, II CLERK
                                                            SUPREME COURT OF APPEALS
                                                                 OF WEST VIRGINIA




                                WILLIAM L. GILL,

                             Claimant Below, Petitioner



                                         V.


                             CITY OF CHARLESTON,

                            Respondent Below, Respondent


  ____________________________________________________________________

               Appeal from West Virginia Workers’ Compensation

                               Board of Review

                            Claim No. 2012026734


                               AFFIRMED

  ____________________________________________________________________

                            Submitted: January 26, 2016

                              Filed: February 10, 2016


Patrick K. Maroney                                 James W. Heslep
Maroney, Williams, Weaver & Pancake, PLLC          Steptoe & Johnson PLLC
Charleston, West Virginia                          Charleston, West Virginia
Attorney for Petitioner                            Attorney for Respondent

William B. Gerwig, III                             Lisa Warner Hunter
Charleston, West Virginia                          Michelle Rae Johnson
Pro Se Amicus Curiae                               Pullin, Fowler, Flanagan,
                                               Brown & Poe, PLLC
                                               Charleston, West Virginia
                                               Attorneys for Amicus Curiae,
                                               The Defense Trial Counsel of
                                               West Virginia

JUSTICE DAVIS delivered the Opinion of the Court.
                             SYLLABUS BY THE COURT


              1.     “In order for a claim to be held compensable under the Workmen’s

Compensation Act, three elements must coexist: (1) a personal injury (2) received in the

course of employment and (3) resulting from that employment.” Syllabus point 1, Barnett

v. State Workmen’s Compensation Commissioner, 153 W. Va. 796, 172 S.E.2d 698 (1970).



              2.     Pursuant to W. Va. Code § 23-4-1g(a) (2003) (Repl. Vol. 2010), a

claimant in a workers’ compensation case must prove his or her claim for benefits by a

preponderance of the evidence.



              3.     A noncompensable preexisting injury may not be added as a

compensable component of a claim for workers’ compensation medical benefits merely

because it may have been aggravated by a compensable injury. To the extent that the

aggravation of a noncompensable preexisting injury results in a discreet new injury, that new

injury may be found compensable.




                                              i
Davis, Justice:

              This appeal was filed by William L. Gill (“Mr. Gill”) from an adverse final

order of the Workers’ Compensation Board of Review (“the Board”). The Board’s order

reversed a decision by the Workers’ Compensation Office of Judges (“the OOJ”), which had

added four new diagnoses to Mr. Gill’s initial compensable claim for a lumbar and thoracic

sprain injury. The Board found that the additional four diagnoses were noncompensable

preexisting conditions. In this appeal, Mr. Gill seeks to have the OOJ’s decision reinstated.1

After a careful review of the briefs, the record submitted on appeal, and listening to the

argument of the parties, we affirm.



                                               I.


                        FACTUAL AND PROCEDURAL HISTORY


              The facts of this case involve injuries to Mr. Gill’s back. Mr. Gill’s first back

injury appears to have occurred in 1985, when he was 18 years old. This noncompensable

injury occurred “when he lifted the door handle up on his car and felt back pain[.]”2 In 1992,

Mr. Gill fell approximately 80 feet while rock climbing. Some of the noncompensable

injuries sustained in the fall included: fractured pelvis, fractured sacrum, fractured pedicle,

              1
               We wish to acknowledge the amicus briefs filed in this matter. The Court has
taken into consideration the arguments made on behalf of the City of Charleston by the
amicus brief of Defense Trial Counsel of West Virginia and the amicus brief filed by William
B. Gerwig, III.
              2
                  The exact nature of the injury is not known.

                                                1

fracture of the left tibia and fibula, and injury to internal organs. Mr. Gill’s injuries appear

to have been treated at a hospital in Pittsburgh, Pennsylvania. In spite of the severe back

injuries he sustained in 1992, Mr. Gill passed the firefighters’ physical tests in 2002 and was

hired by the City’s fire department.3



              Mr. Gill received treatment at Short Chiropractic, Inc. (“chiropractic clinic”),

for back problems associated with the 1992 fall. Treatment notes from the chiropractic clinic

in April of 2004 indicated that Mr. Gill was being treated for lumbar radiculopathy (diagnosis

code 724.3), lumbar disc degenerative disc disease (diagnosis code 722.52), lumbar disc

displacement (diagnosis code 722.10), and lumbar facet syndrome (diagnosis code 724.8).

Mr. Gill was treated by the chiropractic clinic for thoracic and lumbar complaints during the

years 2005, 2006, 2008, 2009, 2011, and 2012. In treatment notes, dated February 7, 2012,

the chiropractic clinic indicated Mr. Gill was being treated for thoracalgia (diagnosis code

724.1), sciatica (diagnosis code 724.3), degeneration of lumbar or lumbosacral IVD

(diagnosis code 722.52), and muscle spasm (diagnosis code 728.85).



              On February 8, 2012, Mr. Gill injured his back while lifting a practice dummy

during firefighter training. This injury was ruled compensable and diagnosed as lumbar


              3
              In 2003, Mr. Gill allegedly sustained a back injury while playing basketball,
purportedly as part of his employment physical training. The extent of the injury is not
known, and Mr. Gill did not file a workers’ compensation claim for the injury.

                                               2

(diagnosis code 847.2) and thoracic (diagnosis code 847.1) sprain. In March of 2012, Dr.

David Weinsweig examined Mr. Gill and reported that “he suffers from pain temporally

related to the injury at work with degenerative disc disease and an element of radiculopathy.”

In June of 2012, Dr. Bill Hennessey performed an independent medical evaluation of Mr.

Gill. Dr. Hennessey reported that Mr. Gill had reached maximum medical improvement and

had made a full recovery from the compensable injury without any impairment. As a result

of Dr. Hennessey’s evaluation, in July of 2012 Mr. Gill was denied a permanent partial

disability award for the compensable injury.



              In August of 2012, the chiropractic clinic requested authorization for injections

to treat Mr. Gill for neuritis/radiculitis (diagnosis code 724.4), sciatica (diagnosis code

724.3), degeneration of lumbar or lumbosacral IVD (diagnosis code 722.52), and facet

syndrome (diagnosis code 724.8). The Claim Administrator denied the request based upon

Dr. Hennessey’s report.4 Mr. Gill protested the denial of the injections to the OOJ.



              While the case was pending before the OOJ, an independent medical evaluation



              4
                The Claim Administrator had issued orders in July of 2012 that denied
authorization for lumbar epidural injections and additional chiropractic treatment. The OOJ
reversed the orders and held that the requested treatment “was the result of a compensable
aggravation of preexisting conditions[.]” The Board reversed the OOJ decision and
remanded for further development of the record. The current status of the issues in that
litigation is not known.

                                               3

was performed on Mr. Gill by Dr. P.B. Mukkamala. A medical opinion rendered by Dr.

Mukkamala in January of 2013 concluded that Mr. Gill’s compensable injury had reached

maximum medical improvement and did not aggravate his preexisting injuries.



              The OOJ treated the request for authorization for injections for four diagnoses

as a request to add the four diagnoses as compensable components of the claim. The OOJ

eventually issued an order finding that the four diagnoses, neuritis/radiculitis (diagnosis code

724.4), sciatica (diagnosis code 724.3), degeneration of lumbosacral IVD (diagnosis code

722.52), and facet syndrome (diagnosis code 724.8), were compensable. The OOJ reasoned

as follows:

              The record designation demonstrates that the claimant’s injury
              of February 8, 2012, catalyzed or precipitated a disabling
              aggravation of his preexisting lumbar spine condition. Such
              aggravation of a preexisting condition by a compensable
              injury . . . necessarily sanctions the inclusion of the aggravated,
              preexisting condition as a compensable element of the injury[.]



              The City appealed the OOJ decision to the Board. By order entered August 29,

2014, the Board reversed the decision of the OOJ and concluded “that the additional

diagnoses are not compensable components of the claim.” Mr. Gill filed this appeal.5



              5
             While the case was pending, this Court asked the parties to brief the following
issue: “Whether aggravations of pre-existing conditions by work-related injuries are
compensable?” The parties filed supplemental briefs in response to the question.

                                               4

                                              II.


                                STANDARD OF REVIEW


              The standard of review applicable to this Court’s consideration of workers’

compensation appeals has been set out under W. Va. Code § 23-5-15 (2005) (Repl. Vol.

2010), in relevant part, as follows:

                     (b) In reviewing a decision of the board of review, the
              supreme court of appeals shall consider the record provided by
              the board and give deference to the board’s findings, reasoning
              and conclusions[.]

                     ....

                     (d) If the decision of the board effectively represents a
              reversal of a prior ruling of either the commission or the Office
              of Judges that was entered on the same issue in the same claim,
              the decision of the board may be reversed or modified by the
              Supreme Court of Appeals only if the decision is in clear
              violation of constitutional or statutory provisions, is clearly the
              result of erroneous conclusions of law, or is so clearly wrong
              based upon the evidentiary record that even when all inferences
              are resolved in favor of the board’s findings, reasoning and
              conclusions, there is insufficient support to sustain the decision.
              The court may not conduct a de novo re-weighing of the
              evidentiary record. . . .

See Hammons v. West Virginia Office of Ins. Comm’r, 235 W. Va. 577, ___, 775 S.E.2d 458,

463-64 (2015). As we previously recognized in Justice v. West Virginia Office Insurance

Commission, 230 W. Va. 80, 83, 736 S.E.2d 80, 83 (2012), we apply a de novo standard of

review to questions of law arising in the context of decisions issued by the Board. See also

Davies v. West Virginia Office of Insurance Comm’r, 227 W. Va. 330, 334, 708 S.E.2d 524,


                                              5

528 (2011). With these standards in mind, we proceed to determine whether the Board

committed error in reversing the decision of the OOJ.




                                             III.


                                       DISCUSSION


              In this proceeding, Mr. Gill asks this Court to reinstate the OOJ decision that

added four preexisting noncompensable conditions to his claim. Before we address the

merits of Mr. Gill’s appeal, we first must place this case in its proper context.



              To begin, the record is clear in showing that no physician requested the

diagnostic codes 724.4 (neuritis/radiculitis), 724.3 (sciatica), 722.52 (degeneration of

lumbosacral IVD), and 724.8 (facet syndrome) be added as compensable elements of Mr.

Gill’s February 8, 2012, injury. The chiropractic clinic requested authorization from the

Claim Administrator to provide Mr. Gill with injections to treat only the four diagnostic

codes. After the request was denied by the Claim Administrator, Mr. Gill protested the denial

of authorization for the injections. Subsequent to the protest being filed with the OOJ, the

OOJ sua sponte treated the protest as a request to add the four diagnostic codes to the

compensable claim. It does not appear that an objection was made by the City, at the

administrative level, to the OOJ’s conversion of the protest. In the appeal to this Court, the

City has pointed out that no formal request was ever made to add the four diagnostic codes

                                              6

to the claim.6 Insofar as no objection was made at the administrative level, we find the issue

waived for purposes of this appeal. See Hoover v. West Virginia Bd. of Med., 216 W. Va.

23, 26, 602 S.E.2d 466, 469 (2004) (“[I]f a party fails to properly raise a nonjurisdictional

‘defense during [an] administrative proceeding, that party waives the defense and may not

raise it on appeal.’” (quoting Fruehauf Trailer Corp. v. Workers’ Comp. Appeal Bd., 784

A.2d 874, 877 (Pa. Cmwlth. 2001))). Even though the issue has been waived, it helps to

explain, as will be shown, why there is a lack of medical evidence to support the OOJ

decision.



              This Court has set out the framework for finding a workers’ compensation

claim compensable as follows: “In order for a claim to be held compensable under the

Workmen’s Compensation Act, three elements must coexist: (1) a personal injury (2)

received in the course of employment and (3) resulting from that employment.” Syl. pt. 1,

Barnett v. State Workmen’s Comp. Comm’r, 153 W. Va. 796, 172 S.E.2d 698 (1970). See

also W. Va. Code § 23-4-1(a) (2008) (Repl. Vol. 2010) (“[W]orkers’ compensation benefits

shall be paid the Workers’ Compensation Fund, to the employees of employers subject to this

chapter who have received personal injuries in the course of and resulting from their covered

employment[.]” (emphasis added)). All three of these elements must be satisfied for an injury

to be held compensable.


              6
                  Counsel for the City in this appeal was not counsel below.

                                               7

              In the instant proceeding, the record is clear in showing that the four diagnostic

codes added by the OOJ were conditions that Mr. Gill was being treated for prior to the

occurrence of the compensable injury of February 8, 2012. The OOJ’s order specifically

stated that “the requested diagnostic codes . . . were also part of the claimant’s diagnostic

portrait prior to the compensable injury[.]” In view of this fact, we find as a matter of law

that the four diagnostic codes were not compensable injuries. We have long held that “[i]n

determining whether an injury resulted from a claimant’s employment, a causal connection

between the injury and employment must be shown to have existed.” Syl. pt. 3, Emmel v.

State Comp. Dir., 150 W. Va. 277, 145 S.E.2d 29 (1965). No such causal connection with

the four diagnostic codes was shown below or in this appeal.



              Having determined that the four diagnostic codes were not compensable

injuries, we must determine whether any basis existed for the OOJ to rule that these

diagnoses were compensable. In making the compensability determination, the OOJ found

as follows:

              [T]he fact that the requested diagnostic codes . . . were also part
              of the claimant’s diagnostic portrait prior to the compensable
              injury, does not preclude their inclusion as compensable
              elements of the injury due to their disabling exacerbation by the
              compensable injury.

(Emphasis added). From this statement, it is clear that the OOJ found that (1) there was

sufficient evidence in the record to show that the compensable injury aggravated the four


                                              8

preexisting diagnostic codes and (2) because of such aggravation, the preexisting injuries

could be added as compensable claims. We will address these two issues separately.



              1. Evidence that compensable injury aggravated preexisting injuries. As

previously noted, the OOJ found that Mr. Gill presented sufficient evidence to show that his

compensable injury of February 8, 2012, aggravated his preexisting injuries. “We have

traditionally held that a workers’ compensation claimant has the burden of proving his or her

claim by proper and satisfactory proof.” Casdorph v. West Virginia Office Ins. Comm’r, 225

W. Va. 94, 99, 690 S.E.2d 102, 107 (2009) (citation omitted). However, pursuant to W. Va.

Code § 23-4-1g(a) (2003) (Repl. Vol. 2010), a claimant in a workers’ compensation case

must prove his or her claim for benefits by a preponderance of the evidence. See City of

Wheeling v. Marriner, No. 14-0498, 2015 WL 465652, at *3 (W. Va. Feb. 3, 2015)

(memorandum decision) (“In light of the preponderance of the evidence standard set forth

in West Virginia Code § 23-4-1g (2003), [the Board] held that Mr. Marriner was entitled to

a 10% permanent partial disability award.”); Sheets v. West Virginia Office of Ins. Comm’r,

No. 11-0100, 2012 WL 3023404, at *1 (W. Va. June 27, 2012) (memorandum decision)

(“Mr. Sheets is entitled to a 6% permanent partial disability award based on the

preponderance of the evidence standard contained in West Virginia Code § 23-4-1g

(2003).”). The record does not support the OOJ’s conclusion that Mr. Gill carried his

burden.


                                             9

              The only medical evidence relied upon by the OOJ to find that the four

diagnostic codes were aggravated by the compensable injury was a statement by Dr.

Weinsweig in a March 2012 report. In a treatment note, Dr. Weinsweig reported that Mr.

Gill “suffers from pain temporally related to the injury at work with degenerative disc disease

and an element of radiculopathy.” The OOJ interpreted this statement to mean that Dr.

Weinsweig “opined that the claimant’s current condition was temporarily related to the

compensable injury.” The OOJ’s interpretation is misleading.



              When Dr. Weinsweig examined Mr. Gill in March of 2012, it was only a few

weeks after the compensable injury of February 8, 2012. Thus, the pain Dr. Weinsweig

referred to was pain “temporally related” to the compensable injury. This pain was consistent

with the expected duration of the compensable injury. As will be shown, Mr. Gill’s

compensable injury was expected to be treated for up to four weeks, and not to exceed eight

weeks. The OOJ, for reasons unknown, interpreted Dr. Weinsweig’s statement to mean that

the pain associated with the August 2012 request for authorization for injections by the

chiropractic clinic was the same pain that Dr. Weinsweig noted in March of 2012. The

record does not support such an interpretation.



              In June of 2012, Dr. Hennessey performed an independent medical evaluation

of Mr. Gill. In his report, Dr. Hennessey made the following relevant findings:


                                              10

              2.	    Mr. Gill has reached maximum medical improvement in
                     regard to his right thoracic and lumbar strains of
                     02/08/12. There is insufficient objective medical
                     evidence of any residual physical impairment. He has
                     made a full recovery.

              3.	    Mr. Gill has a very significant medical history of
                     pre-existing back pain dating back to 18 years of age. At
                     about 300 pounds, he is expected to have back pain.
                     Approximately a 100 pound weight loss is recommended.
                     Such weight loss would also very likely improve his
                     longevity in addition to most certainly eliminating his
                     hypertension and his need for blood pressure medication.

              4.	    Treatment.       No further medical treatment is
                     recommended. . . . Furthermore, as per West Virginia
                     Rule 20, it is noted in regard to spine injuries, such as
                     those of the low back pain that “the estimated duration of
                     care is 0-4 weeks; not to exceed 8 weeks[.]” He is well
                     beyond this time frame. . . .

              5.	    Physical capacities. In the absence of any physical
                     impairment, by definition, there is no applicable
                     disability. . . . Furthermore, in regard to his area of pain
                     which is in the lowest right thoracic region (flank) he has
                     the same thoracic spine MRI findings now as he did back
                     in 2008 and he can work with the same anatomy in 2012
                     as he did in 2008, 2009, 2010, 2011 and early 2012.

It is clear from Dr. Hennessey’s report that Mr. Gill did not have any pain from his

compensable injury in June of 2012, and that the pain he was experiencing was the same pain

he had before the compensable injury. In other words, Dr. Hennessey reported that the

preexisting injuries were not aggravated by the compensable injury.



              The conclusion reached by Dr. Hennessey also was reached by Dr. Mukkamala

                                             11

in his report of January 2013. Dr. Mukkamala’s report set out the following relevant

findings:

              1. Has the claimant reached maximum medical improvement
              with regard to the injury of 2/8/2012?

              I conclude that the claimant has reached maximum degree of
              medical improvement with relation to the compensable injury
              dated 2/8/2012.

              2. Is the claimant in need of additional treatment, specifically
              injections and continued chiropractic care, as a result of the
              injury on 2/8/2012?

              It is my professional opinion that the claimant does not require
              any additional treatment other than a home exercise program,
              There is no indication for any additional chiropractic treatment.

              3. What conditions, if any, does the claimant have directly
              resulting from the injury of 2/8/2012 other than the compensable
              lumbar and thoracic sprain/strains?

              I conclude that the claimant had 847.1 thoracic sprain and 847.2
              lumber sprain resulting from the compensable injury dated
              2/8/1012. . . . There were no other conditions caused by this
              compensable injury. . . .

It is clear that Dr. Mukkamala found that the compensable injury resolved itself and that it

did not aggravate any preexisting injuries.



              In summation, Mr. Gill failed to produce any medical evidence that his

compensable injury of February 8, 2012, aggravated his preexisting noncompensable injuries.

The only medical evidence in the record submitted in this appeal that addressed the issue of


                                              12

the impact of the compensable injury on preexisting injuries was provided by Dr. Hennessey

and Dr. Mukkamala. Both physicians concluded that the compensable injury did not

aggravate the preexisting injuries.



              The conclusion we have reached on this issue also was addressed in Johnson

v. Advanced Diesel Technologies, LLC, No. 14-0068, 2015 WL 2166822, at *2 (W. Va. May

7, 2015) (memorandum decision). In Johnson, the claimant injured his back on June 17,

2011, while at work, and filed a claim for workers’ compensation benefits. The claim was

held compensable for a lumbar strain. The claimant underwent numerous examinations

because of pain that was not consistent with the compensable injury. In spite of such

complaints of pain, the claimant was eventually found to have reached maximum medical

improvement related to his compensable lumbar sprain. A physician subsequently submitted

a request that displacement of lumbar intervertebral disc be added as a compensable

condition of the claim. This request was denied on the grounds that the injury was a

preexisting condition that was not aggravated by the compensable lumbar strain. On appeal,

this Court affirmed as follows:

              Mr. Johnson has not demonstrated that he suffered displacement
              of lumbar or unspecified intervertebral discs. The imaging
              studies in the record indicate that Mr. Johnson’s L3-4 and L4-5
              disc bulges pre-existed the June 17, 2011, injury. . . . The
              evidence in the record further indicates that this pre-existing
              condition was not aggravated by the June 17, 2011, injury
              because his disc protrusions were symptomatic immediately
              prior to the injury in this claim. Although Mr. Johnson’s

                                            13

              requests include two distinct diagnosis codes, in its February 5,
              2014, Order, the Office of Judges correctly determined that both
              diagnoses referred to the same pre-existing condition.

Johnson, 2015 WL 2166822, at *3. See also Destefano v. Severstal Wheeling, Inc., No. 12­

0002, 2013 WL 5989270, at *3 (W. Va. Nov. 7, 2013) (memorandum decision) (“The

evidence in the record shows that Mr. Destefano did not suffer an aggravation of his

pre-existing degenerative disc disease as a result of his compensable injury.”).



              2. Finding noncompensable preexisting injuries to be compensable when

aggravated by a compensable injury. We have concluded that no evidence supported the

determination of the OOJ that Mr. Gill’s compensable injury aggravated his preexisting

injuries. Because of this conclusion, ordinarily there would be no need to reach the second

issue resolved by the OOJ. That is, the determination by the OOJ that, as a result of the

compensable injury aggravating the preexisting injuries, the preexisting injuries can be added

as compensable injuries. This erroneous finding by the OOJ was the basis of this Court’s

request that the parties brief the following issue: “Whether aggravations of pre-existing

conditions by work-related injuries are compensable?” Insofar as this Court asked the parties

to brief the question, we will address it in the context of the erroneous ruling of the OOJ.



              In finding that noncompensable preexisting injuries could be added to a claim

as compensable injuries, when they are aggravated by a compensable injury, the OOJ relied


                                             14

upon the decisions in Charlton v. State Workmen’s Compensation Commissioner, 160 W. Va.

664, 236 S.E.2d 241 (1977), and Jordan v. State Workmen’s Compensation Commissioner,

156 W. Va. 159, 191 S.E.2d 497 (1972). Neither case supported the OOJ’s conclusion on

this issue.



              To begin, in Charlton the claimant developed ulcerated feet as a result of

working in mine water containing magnetite, sulphuric acid, grease, oil, and kerosene. The

claimant filed a workers’ compensation claim as a result of his ulcerated feet. The claim was

denied because the claimant had a preexisting noncompensable blood vessel disease known

as Buerger’s Disease. The claim was denied even though the evidence showed that the

claimant’s ulcerated feet may have resulted from an aggravation of the Buerger’s Disease.

On appeal, this Court reversed. In doing so, we relied upon two previous decisions rendered

by this Court. Charlton noted that, in Hall v. Compensation Commissioner, 110 W. Va. 551,

159 S.E. 516 (1931), this Court held:

                     “The fact that an employee, injured in performing
              services arising out of and incidental to his employment, was
              already afflicted with a progressive disease that might some day
              have produced physical disability, is no reason why the
              employee should not be allowed compensation, under
              Workmen’s Compensation Act, for the injury which, added to
              the disease, superinduced physical disability.”

Charlton, 160 W. Va. at 667, 236 S.E.2d at 243 (quoting Syl., Hall, 110 W. Va. 551, 159

S.E. 516).    The decision in Charlton also cited to Manning v. State Compensation


                                             15

Commissioner, 124 W. Va. 620, 22 S.E.2d 299 (1942), where it was held:

                     “A diseased workman who in the course of and resulting
              from his employment receives an injury, which aggravates or
              accelerates the disease, to the extent of causing a disability
              sooner than would otherwise have occurred, is entitled to
              compensation from Workmen’s Compensation Fund.”

Charlton, 160 W. Va. at 667, 236 S.E.2d at 243 (quoting Syl. pt. 3, Manning, 124 W. Va.

620, 22 S.E.2d 299).



              In the instant case, the decision in Charlton does not support the decision of

the OOJ to add four preexisting back conditions as compensable components of Mr. Gill’s

claim. This is because Charlton did not state that the preexisting Buerger’s Disease was a

compensable injury. Instead, Charlton held that the claim of ulcerated feet was compensable,

even though it may have resulted only because of the noncompensable disease. Assuming,

for the sake of argument, that Mr. Gill’s lumbar and thoracic injuries on February 8, 2012,

resulted only because of his preexisting injuries, Charlton would require adding only the

lumbar and thoracic injuries as compensable claims. Thus, Charlton did not support the

decision of the OOJ to add the preexisting injuries as compensable injuries.



              In the Jordan decision relied upon by the OOJ, the claimant alleged that he

injured his back while lifting a box at work. At the time of the injury, the claimant had a

noncompensable preexisting back injury. At the administrative level it was determined that


                                            16

the claimant did not suffer a compensable injury at work. On appeal, this Court affirmed

after concluding that the evidence was conflicting as to whether the claimant actually

sustained an injury at work. The opinion went on to discuss the issue of a work injury and

a preexisting injury:

                     This Court has often recognized that a preexisting
              infirmity of an employee does not disqualify him from
              prosecuting a successful claim for compensation based upon a
              new injury arising from his employment. . . . But where there
              is evidence of a preexisting like injury, his new claim will not be
              treated as compensable unless it is directly attributable to a
              definite, isolated and fortuitous occurrence, that is to say, from
              a definable incident resulting from his employment. The
              preexisting condition . . . does not dispense with the necessity of
              showing that the injury was actually caused by an accident or
              injury received in the course of and arising from the
              employment. . . . Our statute so requires. . . .

                     Although recognizing that the employer must take the
              employee as he finds him–with all of his attributes and all of his
              previous infirmities, it is also axiomatic that the employer, by
              subscribing to the workmen’s compensation fund, does not
              thereby become the employee’s insurer against all ills or injuries
              which may befall him. . . .

Jordan, 156 W. Va. at 165-66, 191 S.E.2d at 501 (internal quotations and citations omitted).

Although the decision in Jordan recognized that a compensable injury cannot be denied

because of the existence of a noncompensable preexisting injury, that case rejected the notion

that a noncompensable preexisting injury could, in and of itself, be deemed compensable.

Nothing in Jordan supported the decision of the OOJ to add Mr. Gill’s preexisting injuries

as compensable components of the claim.


                                              17

              In the recent decision in AT&T Mobility Services, LLC v. Spoor, No. 14-0396,

2015 WL 6840126 (W. Va. Nov. 4, 2015) (memorandum decision), we applied Charlton and

Jordan to uphold the compensability of injuries occurring because of a preexisting condition.

In AT&T, the claimant, while standing, injured her back when she merely turned around to

answer a question by a co-worker. The claimant was diagnosed with cervical, thoracic, and

lumbar sprain, as well as a right knee sprain. The Claim Administrator rejected the claim.

The OOJ reversed and found that the claimant was injured during the course of and as a

result of her employment. The Board affirmed. The employer appealed and argued that the

claimant had a preexisting back problem that caused the injuries and therefore

compensability could not be found. We affirmed the compensability determination after

citing to Charlton and Jordan for the proposition that a preexisting injury does not preclude

a new compensable injury from arising. We stated that “[b]ecause the evidence establishes

that she was injured in the course of and as a result of her employment, the Office of Judges

and Board of Review were correct in holding the claim compensable for a cervical strain,

thoracic spine strain, lumbar strain, and a right knee injury.” AT&T, 2015 WL 6840126, at

*2. See also Robinson v. General Glass Co., No. 14-0643, 2015 WL 6844975, at *4 (W. Va.

Nov. 4, 2015) (memorandum decision) (“While there was ample evidence of previous back

and hip problems, this Court has consistently held that a preexisting condition will not bar

a claimant from receiving workers’ compensation benefits for an injury that occurs in the

course of and as a result of their employment.”); Johnson v. Mid-Ohio Valley Transit Auth.,


                                             18

Inc., No. 14-0152, 2014 WL 6461647, at *2 (W. Va. Nov. 14, 2014) (memorandum decision)

(“The Office of Judges found that the evidence of record demonstrating the existence of

pre-existing neck pain fails to prove that Mr. Johnson did not sustain a new work-related

injury to his neck on October 14, 2011.”); Fulton v. West Virginia Office of Ins. Comm’r, No.

101267, 2012 WL 3176364, at *2 (W. Va. June 14, 2012) (memorandum decision) (“[A]

claim may be held compensable when a work-related injury aggravates a preexisting

condition.”).



                Mr. Gill also has cited to the decision in Dunlap v. State Workmen’s

Compensation Commissioner, 152 W. Va. 359, 163 S.E.2d 605 (1968), as support for the

decision of the OOJ. In Dunlap, the claimant injured her back at work while lifting a one

or two pound cafeteria tray. The injury was ruled compensable as a back sprain. The

employer appealed the compensability ruling. This Court found that there was evidence that

the claimant had a prior back injury. However, we affirmed the compensability ruling

because it did “not appear from the record that the diagnoses of low back strain or sprain

could have been confused with the preexisting condition disclosed by the X-ray report.”

Dunlap, 152 W. Va. at 365, 163 S.E.2d at 609. Dunlap is consistent with Charlton and

Jordan and does not support the decision of the OOJ in this case.



                The Charlton, Jordan, and Dunlap line of cases all recognize compensability


                                             19

of an injury that may have occurred only because of a preexisting injury. These cases do not

stand for the proposition that merely because a noncompensable preexisting injury was

aggravated, it is fully compensable. It is only a new injury resulting from the aggravation of

the preexisting injury that becomes compensable. This proposition is consistent with our

apportionment statute, W. Va. Code § 23-4-9b (2003) (Repl. Vol. 2010).7



              The apportionment statute is invoked when a claimant seeks a disability award.

This statute reads, in relevant part, as follows:

                      Where an employee has a definitely ascertainable
              impairment resulting from an occupational or a nonoccupational
              injury . . . and the employee thereafter receives an injury in the
              course of and resulting from his or her employment, . . . the
              prior injury, and the effect of the prior injury, and an
              aggravation, shall not be taken into consideration in fixing the
              amount of compensation allowed by reason of the subsequent
              injury. Compensation shall be awarded only in the amount that
              would have been allowable had the employee not had the
              preexisting impairment. . . .

The apportionment “statute is designed to separate out preexisting disability from the

disability arising from the current compensable injury where less than total disability is

sought.” Gallardo v. Workers’ Comp. Comm’r, 179 W. Va. 756, 760 n.5, 373 S.E.2d 177,

181 n.5 (1988). That is, it “directs that any preexisting impairment be deducted from any


              7
               “The term ‘apportionment’ is used because the statute is designed to separate
out preexisting disability from the disability arising from the current compensable injury
where less than total disability is sought.” Gallardo v. Workers’ Comp. Comm’r, 179 W. Va.
756, 759 n.5, 373 S.E.2d 177, 180 n.5 (1988).

                                              20

impairment resulting from an occupational injury.” Rose v. West Virginia Office of Ins.

Comm’r, No. 101552, 2012 WL 3205835, at *2 (W. Va. June 18, 2012) (memorandum

decision).



              Insofar as the apportionment statute does not permit a claimant to receive a

permanent partial disability award for a noncompensable preexisting injury, it stands to

reason that such a preexisting injury cannot be ruled compensable. We therefore make clear,

and so hold, that a noncompensable preexisting injury may not be added as a compensable

component of a claim for workers’ compensation medical benefits merely because it may

have been aggravated by a compensable injury. To the extent that the aggravation of a

noncompensable preexisting injury results in a discreet new injury, that new injury may be

found compensable.8




              8
              Our holding is not applicable to this case because Mr. Gill failed to produce
any medical evidence to show that his compensable injury aggravated his preexisting injuries
and because Mr. Gill’s noncompensable preexisting injuries did not result in a discreet new
injury.

                                            21

                                          IV.


                                   CONCLUSION


             In view of the foregoing, the order of the Workers’ Compensation Board of

Review, dated August 29, 2014, is affirmed.

                                                                            Affirmed.




                                          22

