Background
Kathy J. Nelson, a teacher employed by the Wayne County Board of Education, injured her right shoulder while lifting heavy boxes in her classroom. She underwent rotator cuff repair surgery as a result of this compensable workplace injury. During her post-surgical recovery, she was required to remain largely sedentary, and she subsequently developed bilateral pulmonary embolism (PE), requiring hospitalization.
Nelson sought to have PE added to her workers’ compensation claim as a compensable condition and sought authorization of payment for her PE-related hospitalization, arguing that the forced inactivity following her shoulder surgery more likely than not caused the PE. The claim administrator denied both requests in September and November 2023. The West Virginia Workers’ Compensation Board of Review affirmed those denials in November 2024, finding that the weight of medical evidence pointed to non-compensable factors — including long-term oral contraceptive use, obesity, and a sprained left ankle — as the more likely causes of the PE. The Intermediate Court of Appeals (ICA) affirmed the Board of Review in September 2025, deferring to its credibility determinations and weighing of the evidence.
Nelson then petitioned the Supreme Court of Appeals of West Virginia, arguing the ICA erred in upholding the denials.
The Court’s Holding
The Supreme Court of Appeals summarily affirmed the ICA’s decision without oral argument, finding no reversible error. Applying its standard of de novo review for questions of law and deferential review for factual findings, the court declined to disturb the Board of Review’s conclusion that the preponderance of medical evidence did not support a causal link between Nelson’s compensable shoulder injury (or its surgical treatment) and her development of PE.
The court’s affirmance rests on the Board of Review’s factual findings that multiple non-compensable risk factors — long-term oral contraceptive use, obesity, and an ankle sprain — were the more likely causes of the PE. Although Nelson disputed the ankle sprain finding at her deposition (acknowledging only that she had “tweaked” her ankle two weeks before her May 2023 hospitalization), the Board credited the hospital records over Nelson’s characterization, and the ICA deferred to that credibility determination. The Supreme Court found no basis to override those factual findings.
Key Takeaways
- A workers’ compensation claimant bears the burden of establishing by a preponderance of the evidence that a secondary condition is causally related to the compensable injury; post-surgical immobility alone does not establish causation when significant competing non-compensable risk factors are present.
- The West Virginia Board of Review’s factual findings and credibility determinations are entitled to deference and will not be disturbed on appeal unless clearly wrong, even when the claimant disputes the accuracy of underlying medical records.
- The Supreme Court of Appeals may summarily affirm without oral argument under Rule 21 where it finds no reversible error after reviewing the record and briefs.
Why It Matters
This decision reinforces the evidentiary burden claimants face when seeking to add secondary conditions — particularly those with multiple potential causes — to a workers’ compensation claim in West Virginia. Where a claimant has pre-existing or concurrent non-compensable risk factors, employers and claim administrators can effectively contest causation even when a plausible surgical or recovery-related mechanism exists.
The case also illustrates the limited appellate traction available to claimants challenging adverse factual determinations. The Board of Review’s role as the primary fact-finder, including its authority to weigh conflicting medical evidence and assess witness credibility, is largely insulated from reversal absent clear error — a high bar that Nelson was unable to meet across three levels of review.