                             STATE OF WEST VIRGINIA


                          SUPREME COURT OF APPEALS
                                                                                    FILED
UNITED PARCEL SERVICE, INC.                                                     December 19, 2017
Employer Below, Petitioner                                                   EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

vs.)   No. 17-0604 (BOR Appeal No. 2051843)
                    (Claim No. 2016005970)

GREG BARKER,

Claimant Below, Respondent



                             MEMORANDUM DECISION
       Petitioner United Parcel Service, Inc., by Jeffrey B. Brannon, its attorney, appeals the
decision of the West Virginia Workers’ Compensation Board of Review. No response was filed
on behalf of Greg Barker.

        The issues on appeal are compensability of additional components of the claim and
medical treatment. On April 11, 2016, the claims administrator denied authorization for a
transposition of the right ulnar nerve and the addition of cubital tunnel syndrome as a
compensable component of the claim. The Office of Judges affirmed the claims administrator in
its January 31, 2017, Order. The Order was reversed by the Board of Review on June 8, 2017.
The Court has carefully reviewed the records, written arguments, and appendices contained in
the briefs, and the case is mature for consideration.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Mr. Barker worked as a delivery driver for United Parcel Service, Inc., for thirty-one
years. During the course of his employment, he sustained bilateral carpal tunnel syndrome and a
left elbow neuropathy, or cubital tunnel syndrome. Mr. Barker experienced symptoms in his
hands and arms beginning in 1998, and he had a compensable injury date of June 25, 1998. Mr.
Barker underwent at least three carpal tunnel release surgeries, two on the left and one on the
right, as well as a transposition of the ulnar nerve on the left. He was also awarded permanent
partial disability benefits.

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        It appears that at some point, Mr. Barker submitted a claim application regarding a new
injury to his upper extremities.1 On December 17, 2015, Carl McComas, M.D., performed
electromyography and nerve conduction studies, which were consistent with moderate to severe
bilateral carpal tunnel syndrome, left worse than right, and bilateral ulnar neuropathies which
were moderate on the right and severe on the left. On February 10, 2016, Dr. Ignatiadis
submitted a request to the claims administrator to add right cubital tunnel syndrome as a
compensable condition and for authorization to perform a transposition of the right ulnar nerve.2

        Ronald Fadel, M.D., performed a medical records review as part of a utilization review
on March 16, 2016. He noted Mr. Barker reported an onset of pain in his hands in 2003 that he
attributed to years of chronic, repetitive use on the job. Mr. Barker had been diagnosed with
bilateral carpal tunnel syndrome and left cubital tunnel syndrome. Dr. Fadel noted his opinion
was sought regarding the reasonableness and necessity of bilateral carpal tunnel releases and
right cubital tunnel release. In Dr. Fadel’s opinion, the main issue was the causation of the
compensable conditions. He opined that because the left carpal tunnel syndrome had already
been accepted as compensable and there was an absence of other risk factors, the right carpal
tunnel syndrome should also be held compensable. He noted that cubital tunnel syndrome is
generally related to direct trauma to the cubital tunnel or circumstances in which patients
experience prolonged periods of direct pressure to the cubital tunnel. Dr. Fadel recommended
approval of the requested surgery for the recurrent severe carpal tunnel syndrome on the left and
the acceptance of right carpal tunnel syndrome as a compensable condition. He was not provided
a job description and was unable to render an opinion regarding the causation of the cubital
tunnel syndrome without one. But he recommended a neurology consultation if there were
disagreeing conclusions regarding the causation of the cubital tunnel syndrome. He
recommended denial of the alleged cubital tunnel syndrome pending the neurology consultation.
The bilateral carpal tunnel syndrome was accepted as compensable, and Mr. Barker underwent
bilateral carpal tunnel releases.

        Dr. Fadel issued an addendum to his report on March 20, 2016, after reviewing Mr.
Barker’s job description. Dr. Fadel opined that he did not find any of the required job duties
compatible for producing direct or chronic low grade trauma to the cubital tunnel. Based on his
report, the claims administrator denied Dr. Ignatiadis’s request to add cubital tunnel syndrome as
a compensable condition and his request for authorization to perform a transposition of the right
ulnar nerve. On May 15, 2016, Mr. Barker stated that in his opinion there were no legitimate
grounds for the denial of the addition of right ulnar nerve as a compensable condition or for the
denial of the transposition of the right ulnar nerve. It was illogical at best and criminal at worst
for the claims administrator to deny the compensability of the right ulnar nerve when the left
ulnar nerve was deemed compensable in 2003.

        On November 25, 2016, Mr. Barker wrote a letter to the Office of Judges detailing his job
duties and his objection to the use of the reports of Prasadarao Mukkamala, M.D., and Dr. Fadel
in deciding his case. He did not understand how his left cubital tunnel syndrome was considered

1
    The Employee’s and Physician’s Report of Occupational Injury is not in the evidentiary record.
2
    Dr. Ignatiadis’s request is not in the evidentiary record.
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work-related in 2001, but his right cubital tunnel syndrome was not considered work-related in
2016. He had surgery on his left elbow first because it was worse. His right elbow has now
degenerated to a point where he needs the surgery. The need for the surgery is due to his work.

        The Office of Judges affirmed the claims administrator’s denial of the request to add right
cubital tunnel syndrome and denial of the request for authorization to perform a transposition of
the right ulnar nerve in its January 31, 2017, Order. It noted the request made by Dr. Ignatiadis
for authorization of the right cubital tunnel syndrome and for transposition of the right ulnar
nerve is not part of the record. According to the claims administrator’s denial, the request was
made on February 10, 2016. Dr. Fadel reviewed Mr. Barker’s job description and opined that the
job requirements were not compatible with producing direct or chronic trauma to the cubital
tunnel. Dr. Fadel opined that the relationship between Mr. Barker’s cubital tunnel syndrome and
his work as a delivery driver was speculative at best. Additionally, Dr. Mukkamala diagnosed
bilateral carpal tunnel syndrome and opined that Mr. Barker did not require any additional
treatment for his claim. The report of Dr. McComas, the treating physician, showed moderate
ulnar neuropathy on the left.

        The Office of Judges found that even though the circumstances that led to Mr. Barker’s
left cubital tunnel syndrome being held compensable could have caused his right cubital tunnel
syndrome, the nerve conduction studies conducted by Dr. McComas failed to demonstrate a
causal connection between right cubital tunnel syndrome and Mr. Barker’s employment. The
Office of Judges noted that in addition to the record not including a copy of the claims
administrator’s decision that was being protested, the record also did not include any records or
reports from Dr. Ignatiadis or the first report of injury. Therefore, Mr. Barker failed to meet his
burden of proof. As such, the claims administrator was correct to deny the addition of right ulnar
neuropathy as a compensable condition and correct to deny authorization for the right ulnar
transposition.

        The Board of Review reversed the Office of Judges’ Order on June 8, 2017. It found that
the February 10, 2016, request from Dr. Ignatiadis for authorization of the transposition of the
right ulnar nerve and the claim application were needed in order for a full and complete
development of the facts of the claim. Therefore, it remanded the claim to the Office of Judges
with instructions to issue a new time frame Order to allow for the full and complete development
of the evidence. The Board of Review also instructed Mr. Barker to submit a copy of the claim
application and a copy of Dr. Ignatiadis’s February 10, 2016, request into evidence. The Office
of Judges was to then consider any new evidence along with the previously considered evidence
and affirm, reverse, or modify its January 31, 2017, Order.

        After review, we agree with the Board of Review. The claim application and the written
request of Dr. Ignatiadis regarding the authorization of the surgery would assist the Office of
Judges in making a fully informed decision regarding the compensability of the right cubital
tunnel syndrome as well as the reasonableness and necessity of the proposed medical treatment.
Neither party is prejudiced by the decision, as both parties will be afforded an opportunity to
submit additional evidence.

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        For the foregoing reasons, we find 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. Therefore, the decision of the Board of Review is affirmed.


                                                                                        Affirmed.

ISSUED: December 19, 2017

CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




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