Deborah Evans v. Wayne County Board of Education

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
DEBORAH EVANS, January 10, 2023
Claimant Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS

vs.) No. 22-ICA-48 (BOR Appeal No.: 2057996) OF WEST VIRGINIA

(JCN: 2021022059)

WAYNE COUNTY BOARD OF EDUCATION,
Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Deborah Evans appeals the July 25, 2022, order of the Workers’
Compensation Board of Review (“Board”). Ms. Evans’ employer, Respondent Wayne
County Board of Education (“WCBOE”), filed a timely response. 1 Ms. Evans did not file
a reply. The issue on appeal is whether the Board erred in affirming the claim
administrator’s order rejecting her workers’ compensation claim as noncompensable.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). 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 lower tribunal’s order is appropriate
under Rule 21 of the Rules of Appellate Procedure.

Ms. Evans alleges that she was injured on April 6, 2021, while she was employed
by WCBOE as an autism mentor. She stated that as she was assisting a student preparing
to leave school, she bent over to pick the student up and felt a sharp pain in her lower back.
Ms. Evans initially believed that she had pulled something in her lower back, but the pain
worsened and began radiating down her left leg after she went home for the day. She
presented to the emergency room at Three Rivers Medical Center the same day and was
given a pain injection and advised that she had pulled muscles in her back.

On April 7, 2021, Ms. Evans returned to the emergency room when her pain
worsened and was again advised that she had pulled muscles in her back. The ER provider
recommended physical therapy for six weeks. Ms. Evans was diagnosed with strain of
muscle, fascia, and tendon of her left hip.

1
Petitioner is represented by Edwin H. Pancake, Esq. Respondent is represented by
Jeffrey M. Carder, Esq.

1
On April 11, 2021, Ms. Evans was seen at Cabell Huntington Hospital and
diagnosed with degenerative disc disease of the lumbar region, sciatica, and strain of the
lumbar region. A lumbar spine radiology report indicated multilevel degenerative changes.
On May 13, 2021, Ms. Evans underwent a CT scan of the lumbar spine which indicated
degenerative changes.

On May 19, 2021, the claim administrator denied Ms. Evans’ claim for workers’
compensation benefits after concluding that she had not sustained an injury at work. Ms.
Evans protested this order.

On October 5, 2021, Ms. Evans was deposed and testified that she did not have any
preexisting back issues. Ms. Evans also agreed with the statement that she did not get hurt
at work, rather, she realized she was injured later in the day. Ms. Evans admitted that she
did not say anything about her injury while at work and did not believe that her co-workers
would have known that she was injured.

Ms. Evans’ medical records established that she suffered preexisting chronic back
problems and leg pain. Medical records from 2005 indicate that petitioner was suffering
from degenerative changes, including neural foraminal stenosis. Medical records from
2008 note petitioner’s back pain and degenerative changes. Medical records from 2011
indicate the petitioner complained of back pain and had severe pain and swelling in both
of her legs. In 2016, Ms. Evans was diagnosed with chronic back pain. From 2017 through
2021, Ms. Evans was seen several times for her back pain which was attributed to
degenerative changes. In 2021, Ms. Evans was diagnosed with osteoarthritis of both knees.

On March 4, 2022, the Office of Judges’ (“OOJ”) affirmed the claim administrator’s
decision and found that Ms. Evans had not established that she had a discrete new injury
separate from her preexisting back condition. The OOJ also noted that Ms. Evans’
credibility was “diluted” due to her contradictory statements. On July 25, 2022, the Board
affirmed the OOJ’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;

2
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(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.

On appeal, Ms. Evans argues that she clearly suffered a new injury, the sprain/strain
to her lower back, notwithstanding the preexisting degenerative changes and prior back
pain. Ms. Evans further argues that where there is a new injury that is “unquestionably
proven” as it is in the instant claim, the claimant’s prior lower back problems should not
shield the employer from its responsibility to provide the claimant benefits for injuries
resulting from its employee’s work.

Ms. Evans attempts to distinguish her case from that of Gill v. City of Charleston,
236 W. Va. 737, 783 S.E.2d 857 (2016). In Gill, the Supreme Court of Appeals held 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 discrete new injury, that new injury may be found
compensable.” Id. at 738, 783 S.E.2d at 858, Syl. Pt. 3.

Ms. Evans argues that she clearly suffered a discrete new injury.

Further, Ms. Evans contends that she is entitled to the rebuttable presumption set
forth in Moore v. ICG Tygart Valley, LLC, ___ W. Va. ___, 879 S.E.2d 779 (2022). In
Syllabus Point 5 in Moore, the Supreme Court of Appeals held that, “[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.” Id. In Moore, the Court clarified that even if a claimant
is entitled to this rebuttable presumption, “a claimant has the burden of proving that the
compensable injury exacerbated, accelerated, or worsened the preexisting injury or disease
to the extent that it caused a new distinct injury.” Id. at 788.

After review, we conclude that the OOJ, as affirmed by the Board, did not err in
finding that Ms. Evans’ contradictory statements regarding her alleged injury were
troubling. In her October 5, 2021, deposition Ms. Evans testified that she had sustained a
back injury fifteen years prior, but she denied having any ongoing back problems.
However, Ms. Evans’ medical records indicate that she has had extensive ongoing

3
problems with back and leg pain. The OOJ was not wrong in their determination that Ms.
Evans credibility is “diluted” by her contradictory testimony.

Ms. Evans argument that she is entitled to the presumption set forth in Moore fails
due to her extensive history of preexisting back pain and leg pain. Ms. Evans has not
sufficiently established that she suffered a new and discrete injury that is separate from her
extensive history of preexisting back and leg pain. She suffered the same symptoms prior
to and after the alleged injury. Ms. Evans has suffered similar ongoing symptoms for more
than ten years.

Finding no error in the Board’s order affirming the claim administrator’s order
rejecting Ms. Evans’ workers’ compensation claim as noncompensable, we affirm.

Affirmed.

ISSUED: January 10, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen

4