Justices say former police officer’s injury is non-compensable

By Kyla Asbury | Nov 27, 2017

CHARLESTON – The West Virginia Supreme Court of Appeals ruled that a former Beckley police officer’s injury was non-compensable and not resulting from his employment.

CHARLESTON – The West Virginia Supreme Court of Appeals ruled that a  former Beckley police officer’s injury was non-compensable and not resulting from his employment.

Jeremy Young was working as a police officer for the City of Beckley when he allegedly injured his left shoulder on two separate occasions—once while falling on wet tile and once while shooting his firearm, both during the course of his employment, according to the Nov. 7 memorandum decision.

“We are asked to decide whether this injury was properly found to be non-compensable,” the decision states. “We are guided by West Virginia Code § 23-4-1 (2008), which provides that an injury is compensable if it was a personal injury received in the course of and resulting from employment. After a thorough review of the evidence, we find that Mr. Young did not sustain a compensable injury in the course of his employment.”

The court found no substantial question of law or prejudicial error.

Young alleged that he first injured his left shoulder in the course of his employment on April 23, 2015, when he slipped and fell on a wet floor. He further alleged that he injured his shoulder on May 6, 2015, while doing his weapon qualification while on duty.

Treatment notes from Veterans Administration Beckley Medical Center on May 6, 2015, indicate Young was seen for left shoulder and bilateral wrist pain from a fall 10 days prior.

X-rays were negative for fractures or breaks. Young was diagnosed with sprains in the upper extremities. A left shoulder MRI showed a small inferior labral tear. X-rays of the left wrist, right wrist and left elbow were negative.

A month later, Young returned to Beckley VA for left shoulder pain. At that point, he stated that he was running at his place of work in April, when he stepped on a wet floor, causing him to slip and fall on his left side.

On examination, the left shoulder was tender and range of motion produced pain. He was diagnosed with left shoulder strain with possible inferior labral tear.

In a report of injury, Young stated that he injured his left shoulder, left elbow and both wrists on April 23, 2015, when he was entering the school while it was raining. He slipped and fell on the tile floor.

The diagnosis was listed as occupational shoulder strain with possible labral tear and a wrist injury.

A second report of injury indicates Young injured his shoulder on May 6, 2015, and stopped working due to that injury one month later. The description of how the injury occurred was illegible.

Stephen Jones performed an investigation into Young’s alleged injuries. Jones noted that these injuries were not reported until after a job performance discussion was had with Young in which it was suggested he may be reassigned to road patrol.

Jones spoke with the principal of the school where Young was working as a resource officer. The principal told Jones that he stands every morning in the area in which Young alleges he fell and he never witnessed such an accident.

The principal said that he was not made aware of an injury until several days later on May 5, 2015, when Young’s supervisor came to the school to speak with Young.

The principal stated that the conversation was not pleasant and allegedly related to some undesirable work habits. He recalled Young stating that if he could not be the resource officer, he would go on medical leave.

On May 6, 2015, Young told the principal that he injured his left shoulder at the shooting range. The principal reiterated that he did not witness him fall in the hallway and that he did not believe such an injury occurred.

 Jones also described a meeting with J.R. Corey, the range officer for the Beckley Police Department. Corey was present for the firearms qualifications on May 6, 2015. Corey stated that Young passed his qualifications and never mentioned that his shooting arm was not well. He did not report an injury at that time.

Jones also met with Chief of Police Lonnie Christian, who stated that Young was transferred to routine road patrol in June 2015, called in sick for the first week he was scheduled on road patrol and has since submitted workers’ compensation claims to include injuries in both April and May.

Young did not report the injuries until after he was reassigned. The Beckley Police Department conducted an internal inquiry.

Jones stated that Young was unable to perform light duty due to his inability to use a typewriter without pain, but he was observed on video pushing and pulling on mud-stuck four-wheelers.

Finally, Jones reported a conversation with Young, where Young told him he injured himself in April when he slipped and fell. He stated that several weeks later he was at a gun range and injured his shoulder. Young acknowledged that since the alleged injury he has been able to ride his motorcycle, cut grass, weed-eat and ride his all-terrain vehicle.

The claims administrator denied the applications for benefits for both the first and second injuries. The Office of Judges affirmed the decisions. For the April alleged injury at the school, the Office of Judges found that the employer submitted enough persuasive evidence to rebut Young’s allegation that he sustained a compensable injury in April.

The Office of Judges further found that Young’s activities after he stopped working were inconsistent with an individual who was unable to perform light work, including typing. Young testified that he rode his motorcycle on a six hour trip to North Carolina, and he also admitted to all-terrain vehicles activities, including helping to get a four wheeler unstuck from mud.

For the May alleged injury at the gun range, the Office of Judges determined that a preponderance of the evidence does indicate Young has a labral tear in his left shoulder. He alleges that he raised his gun to fire and felt a pop in his shoulder. The injury report alleges that he sustained a new left shoulder injury.

In his appeal, Young argued that he proved by a preponderance of the evidence that he was injured on two separate occasions. He asserted that he sustained a labral tear of the left shoulder and there is no other explanation in the record other than the injuries in April and May.

He further argued that though he did not report his April slip and fall injury to the principal, the principal is not his boss and he would have no reason to inform him of an injury. The City of Beckley argued that the evidence showed Young did not sustain injuries in either April or May. It further asserted that the evidence showed he had a problematic shoulder prior to the alleged injuries.

“After review of the evidentiary record and the parties’ arguments, we agree with the reasoning and conclusions of the Office of Judges as affirmed by the Board of Review,” the decision states. “A preponderance of the evidence indicates that Mr. Young did not fall at the school on April 23, 2015. There were no witnesses to the injury, he did not report the injury to anyone, and there are inconsistencies in his version of the events and the evidence of record. A preponderance of the evidence also indicates he was not injured on May 6, 2015, as the act of lifting a fire arm is not consistent with sustaining a labral tear.”

The decision states that the court found that the decision of the Board of Review is not in clear violation of any constitutional or statutory provision, nor is it clearly the result of erroneous conclusions of law, nor is it based upon a material misstatement or mischaracterization of the evidentiary record. 

W.Va. Supreme Court of Appeals case number: 17-0291

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