Kevin Shepherd v. Ohio County Board of Education
20-0368
| W. Va. | Jul 19, 2021Background
- Claimant Kevin Shepherd, a school custodian, alleges he injured his left leg while moving a table at work on August 11, 2019.
- Shepherd sought emergency treatment the same day but reported to the ER that left leg pain began five days earlier; imaging showed L4-5 herniation and L5-S1 protrusion and he was diagnosed with left lower radiculopathy (listed as nonoccupational).
- Employer and a witness (co-worker Theresa Hunter) reported Shepherd fell while carrying a heavy table; employer reported the incident and did not initially question it.
- Claims administrator rejected the claim on August 23, 2019; the Office of Judges affirmed the rejection on November 21, 2019; the Board of Review affirmed on May 21, 2020; Shepherd appealed to the West Virginia Supreme Court.
- The Office of Judges and Board found the medical evidence did not persuasively show a work-related discrete new injury on August 11, 2019, and noted preexisting back problems.
- The Supreme Court affirmed, concluding Shepherd failed to prove a compensable new injury rather than a mere aggravation of a preexisting, nonoccupational condition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Shepherd sustained a compensable left-leg/back injury on Aug. 11, 2019 | Shepherd: fall while carrying table caused acute, severe left-leg injury; witness corroborates; sought ER care same day | Employer/claims admin: ER record shows pain began five days earlier and diagnosis was nonoccupational radiculopathy; medical evidence does not show work-caused new injury | Court: Claim denied — Shepherd failed to prove a discrete, work-related new injury; evidence supports preexisting condition and nonoccupational diagnosis |
| Whether an aggravation of a preexisting condition is compensable absent a discrete new injury | Shepherd: workplace incident produced an aggravation that should be compensable | Employer: mere aggravation of a nonoccupational preexisting condition is not compensable unless it produces a discrete new injury | Court: Follows precedent — aggravation alone of a preexisting nonoccupational condition is not compensable unless it results in a discrete new injury; Shepherd did not meet that burden |
Key Cases Cited
- Hammons v. W. Va. Off. of Ins. Comm'r, 235 W. Va. 577 (2015) (articulates standard of review and deference to Board of Review findings)
- Justice v. W. Va. Office Ins. Comm'n, 230 W. Va. 80 (2012) (applies de novo review to legal questions)
- Davies v. W. Va. Off. of Ins. Comm'r, 227 W. Va. 330 (2011) (procedural standards for review)
- Barnett v. State Workmen's Comp. Comm'r, 153 W. Va. 796 (1970) (worker must show personal injury received in course of employment to be compensable)
- Gill v. City of Charleston, 236 W. Va. 737 (2016) (preexisting, noncompensable conditions are not compensable merely because aggravated by work; discrete new injuries may be compensable)