Philip Harris v. AHF, LLC

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
PHILIP HARRIS, June 27, 2025
Claimant Below, Petitioner ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
v.) No. 24-ICA-504 (JCN: 2021016549)

AHF, LLC,
Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Philip Harris (“Mr. Harris”) appeals the November 21, 2024, order of the
Workers’ Compensation Board of Review (“Board”). Respondent AHF, LLC (“AHF”)
timely filed a response.1 Mr. Harris did not file a reply. The issue on appeal is whether the
Board erred in affirming the claim administrator’s order, which granted Mr. Harris a 0%
permanent partial disability (“PPD”) award.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Board’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

On February 8, 2021, in the course of his employment with AHF, Mr. Harris injured
his right shoulder while trying to free a jammed conveyor belt. Mr. Harris went to the Davis
Medical Center on the date of his injury and was diagnosed with a right shoulder sprain.
On the same day, Mr. Harris completed an Employee’s and Physician’s Report of
Occupational Injury or Disease alleging that he was pulling on a conveyor belt and felt his
right shoulder pop. The physician’s portion indicated an occupational injury to the right
shoulder and listed ICD9-CM diagnosis codes. By order dated June 30, 2021, the claim
administrator held the claim compensable for a right shoulder sprain. On July 6, 2021, the
claim administrator issued an order denying authorization for the subsequently requested
surgery to his right shoulder based on a report of preexisting degenerative arthrosis. Mr.
Harris protested the claim administrator’s order denying authorization. On review, the
Board considered the medical evaluations of Richard E. Topping, M.D., an orthopedic
surgeon, and Chuan Fang Jin, M.D., an occupational medicine physician. In its August 5,
2022, order the Board determined that the requested right shoulder surgery was not

1
Mr. Harris is represented by J. Thomas Greene, Jr., Esq., and T. Colin Greene,
Esq. AHF is represented by Steven K. Wellman, Esq., and James W. Heslep, Esq.

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medically necessary and reasonably required treatment for the compensable injury due to
preexisting degenerative arthrosis. Mr. Harris did not appeal the August 5, 2022, order.

On December 13, 2022, Mr. Harris underwent an independent medical evaluation
(“IME”) performed by Jennifer L. Lultschik, M.D. Dr. Lultschik summarized the prior
reports of Drs. Jin and Topping stating that Mr. Harris had preexisting, symptomatic
degenerative arthrosis. According to Dr. Lultschik, in his operative report, Dr. Topping
attributed Mr. Harris’ right shoulder symptoms and resulting surgery to AC joint
degenerative changes. Dr. Lultschik reported that Mr. Harris had reached maximum
medical improvement. Using West Virginia Code of State Rules § 85-20 (2006) and the
American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th
ed. 1993), Dr. Lultschik compared Mr. Harris’ impairment of the uninjured left shoulder
to the injured right shoulder to arrive at the 0% impairment rating for the compensable
injury. She found that Mr. Harris had 5% UEI for regional loss of range of motion of the
right shoulder and 5% UEI for the right upper extremity, which corresponded to 3% whole
person impairment. She also found that Mr. Harris had 5% UEI for regional loss of range
of motion of the left shoulder and 5% UEI for the left upper extremity, which corresponded
to 3% whole person impairment. Dr. Lultschik subtracted baseline impairment in the left
shoulder from that in the injured right shoulder (3% -3% = 0%) to conclude that Mr. Harris
had 0% impairment of the whole person for the accepted diagnosis related to the incident
of February 8, 2021.

On December 21, 2022, the claim administrator issued an order granting Mr. Harris
a 0% PPD award based on Dr. Lultschik’s report. In its November 21, 2024, order, the
Board affirmed the claim administrator’s order granting 0% PPD and noted that Dr.
Lultschik’s reasoning and rationale for apportionment in this claim were credible. Mr.
Harris now appeals the Board’s order.

Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in
part, as follows:

The Intermediate Court of Appeals may affirm the order or decision of the
Workers’ Compensation Board of Review or remand the case for further
proceedings. It shall reverse, vacate, or modify the order or decision of the
Workers’ Compensation Board of Review, if the substantial rights of the
petitioner or petitioners have been prejudiced because the Board of Review’s
findings are:

(1) In violation of statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the Board of Review;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;

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(5) Clearly wrong in view of the reliable, probative, and substantial evidence
on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

Syl. Pt. 2, Duff v. Kanawha Cnty. Comm’n, 250 W. Va. 510, 905 S.E.2d 528 (2024).

On appeal, Mr. Harris asserts that he sustained more than a 0% whole person
impairment due to the compensable injury. Mr. Harris argues that prior to his injury, he
worked without restrictions or limitations in his right shoulder, and he had no history of
treatments to his right shoulder. Mr. Harris further asserts that the Board was clearly wrong
to find Dr. Lultschik’s comparison of Mr. Harris’ right shoulder with his left shoulder for
apportionment credible because “the condition of the left shoulder cannot serve as a mirror
for purposes of establishing the pre-injury condition of his right shoulder.” We disagree.

Mr. Harris cites Syllabus Point 6 of Duff and Syllabus Point 5 of Moore v. ICG
Tygart Valley, LLC, 247 W. Va. 292, 879 S.E.2d 779 (2022)2 in support of his position that
apportionment based on Mr. Harris’ supposed preexisting condition is inappropriate. In
these two recent cases, the Supreme Court of Appeals of West Virginia (“SCAWV”)
considered the impact of preexisting conditions in the workers’ compensation context. In
these cases, SCAWV adopted a new presumption of compensability and shifted the burden
of proof to employers in certain contexts. We do not view these two new cases as broadly
as argued by Mr. Harris. Moore addresses compensability of a medical condition resulting
from a workplace injury.3 In this case, compensability of the right shoulder was already
established so Moore is of little value in this PPD apportionment case.

2
A claimant's disability will be presumed to have resulted from the compensable
injury if: (1) before the injury, the claimant's preexisting disease or condition was
asymptomatic, and (2) following the injury, the symptoms of the disabling disease or
condition appeared and continuously manifested themselves afterwards. There still must
be sufficient medical evidence to show a causal relationship between the compensable
injury and the disability, or the nature of the accident, combined with the other facts of the
case, raises a natural inference of causation. This presumption is not conclusive; it may be
rebutted by the employer.
3
In Blackhawk Mining, LLC v. Argabright, ___ W. Va.___, 915 S.E.2d 7 (W. Va.
Ct. App. 2023) aff’d No. 23-381, 2024 WL 3984505 (W. Va. Aug. 27, 2024)
(memorandum decision), we found that Moore did not change the law so much as to make
a previously undiagnosed preexisting chronic condition itself compensable. In Moore, the
SCAWV expressly finds that Gill v. City of Charleston, 236 W. Va. 737, 783 S.E.2d 857
(2016) remains good law.

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The dispositive issue in this case is whether, pursuant to Duff, AHF met its new
burden of proving that Mr. Harris had a definitely ascertainable impairment resulting from
a preexisting condition. In Duff, SCAWV created this new burden on employers in PPD
apportionment cases as follows:

Under West Virginia Code § 23-4-9b (2003), the employer has the burden of
proving apportionment is warranted in a workers’ compensation case. This
requires the employer to prove the claimant “has a definitely ascertainable
impairment resulting from” a preexisting condition(s). This requires that
employer prove that the preexisting condition(s) contributed to the claimant’s
overall impairment after the compensable injury and prove the degree of
impairment attributable to the claimant's preexisting condition(s).

Syl. Pt. 6, Duff, 250 W. Va. 510, 905 S.E.2d 528. For an employer to prove the degree of
impairment attributable to a preexisting condition, “[a] non-treating doctor’s opinion must
be well supported and reasoned. A conclusory medical opinion will not suffice. Medical
reports without reasoning and rationale are conclusory and perforce lack probative value.”
Id., 250 W. Va. at 520, 905 S.E.2d at 538. (citations omitted).

The Board found that Dr. Lultschik’s report establishes the existence of a definitely
ascertainable preexisting impairment to Mr. Harris’ right shoulder. According to Dr.
Lultschik, Mr. Harris’ baseline or preexisting impairment to the compensable right
shoulder injury is any corresponding impairment to the uninjured left shoulder. Dr.
Lultschik performed range of motion measurements on both shoulders and established that
because Mr. Harris’ left shoulder has a 3% impairment, the compensable right shoulder
likely had the same amount of impairment prior to the compensable injury. While Mr.
Harris might disagree with Dr. Lultschik, the Board considered her opinion as not arbitrary.
Moreover, Dr. Lultschik’s IME is the only medical opinion regarding Mr. Harris’
permanent impairment from the compensable injury. The record on appeal establishes that
Mr. Harris did not offer any evidence to contradict Dr. Lultschik’s opinion.

As set forth by the SCAWV, “[t]he ‘clearly wrong’ and the ‘arbitrary and
capricious’ standards of review are deferential ones which presume an agency’s actions are
valid as long as the decision is supported by substantial evidence or by a rational basis.”
Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473 S.E.2d 483 (1996). Based on the foregoing,
we find that the Board’s determinations set forth in its November 21, 2024, order are
supported by substantial evidence and a rational basis. Therefore, and with our deferential
standard of review in mind, we find that the Board was not clearly wrong and did not act
arbitrarily or capriciously in affirming the claim administrator’s 0% PPD award.

Accordingly, we affirm the Board’s November 21, 2024, order.

Affirmed.

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ISSUED: June 27, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White

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