CHARLESTON — The West Virginia Supreme Court of Appeals sided with the Workers' Compensation Board of Review that a man's injury was pre-existing and not a new injury.
Kevin Shepherd was a custodian for the Ohio County Board of Education and claimed he injured his left leg during the course of his employment on Aug. 11, 2019, and sought treatment for the injury that day from Wheeling Hospital Emergency Department.
During the evaluation, it was noted that Shepherd had a history of back pain and he indicated that he was injured while cleaning and moving equipment. His injury was listed as an upper left leg sprain or tear due to pushing and pulling, according to the July 19 decision.
Shepherd had a CT scan that showed a large L4-5 disc herniation while he was seen at the emergency department.
The Employer's Report of Injury stated that Shepherd injured his leg and back while cleaning and moving the equipment and a claim's administration rejected the claim on Aug. 23, 2019. Shepherd then testified in a hearing before the Office of Judges on Nov. 1, 2019, that he was carrying a table with a coworker when his leg went out from under him and he sought treatment for the injury. He noted that he had leg pain for five days prior. He also asserted that he had slight muscle pain due to moving a lot of furniture but that the pain he felt when carrying the table was more severe than the soreness he had been experiencing.
The Office of Judges affirmed the rejection of the claim, saying that he failed to show that he was injured as a result of his employment because he had reported left leg pain had begun five days prior. The Office of Judges concluded that the medical evidence failed to persuasively show that he had sustained a work-related leg injury. The Board of Review adopted those findings and conclusions in its May 21, 2020, order.
"After review, we agree with the reasoning and conclusions of the Office of Judges as affirmed by the Board of Review," the court states.
The court noted that the evidence indicates that Shepherd had suffered from preexisting lower back issues and that he had failed to establish a new injury rather than an aggravation of a preexisting one.
West Virginia Supreme Court of Appeals case number: 20-0368
