                              STATE OF WEST VIRGINIA
                                                                                    FILED
                           SUPREME COURT OF APPEALS                              March 10, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
JAMES RICHARDS,                                                                OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-0876 (BOR Appeal No. 2046805)
                   (Claim No. 2011009908)

PATRIOT COAL CORPORATION,
Employer Below, Respondent


                              MEMORANDUM DECISION
         Petitioner James Richards, by John Blair, his attorney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review. Patriot Coal Corporation, by Henry Bowen,
its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated June 27, 2012, in which
the Board affirmed a January 13, 2012, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s February 4, 2011, decision
which denied the claim for bilateral cubital tunnel syndrome. 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. Richards was employed as a bulldozer operator when he alleges he developed
bilateral cubital tunnel syndrome. He testified in a deposition that due to the way he had to sit in
order to operate machinery, a significant amount of pressure was placed on his elbows. This
pressure caused numbness and pain in his arms. His treating physician, Marietta Babayev, M.D.,
performed an electrodiagnostic evaluation and determined that Mr. Richards suffered from
bilateral cubital tunnel syndrome in November of 2009. The claims administrator rejected the
claim on February 4, 2011.
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       Mr. Richards has a long history of neuropathy in his upper extremities. He was diagnosed
with diabetic neuropathy in May of 2000. In October of 2001, an electromyography and nerve
conduction velocity test revealed that he had axonal neuropathy. In June of 2002, a repeat test
showed that Mr. Richards suffered from axonal and demyelinating sensory neuropathy. In June
of 2010, he was treated by Satish Rao, M.D., who found that he had a history of diabetic
neuropathy that was progressively worsening over time.

        In a letter written to the claims administrator on November 5, 2010, Phillip Surface, D.O.,
admitted that he had no conclusive evidence that would support the causal relationship between
Mr. Richards’s bilateral cubital tunnel syndrome and his occupational duties. Mr. Richards was
evaluated by Prasadarao Mukkamala, M.D., on December 22, 2010. In the independent medical
evaluation, Dr. Mukkamala found that if Mr. Richards did in fact have bilateral cubital tunnel
syndrome, it was not caused by his occupational duties. He found that Mr. Richards had two
non-occupational risk factors for carpal tunnel syndrome; diabetes and obesity. Marsha Bailey,
M.D., agreed with Dr. Mukkamala in an independent medical evaluation on September 20, 2011.
She found that Mr. Richards’s risk factors for carpal tunnel syndrome were strong and included
diabetes, obesity, hypothyroidism, and gout. She also found that he had previously been
diagnosed with diabetic peripheral neuropathy, and his need to increase his levels of insulin over
the years indicates that his diabetes is not well-controlled. She too concluded that Mr. Richards’s
cubital tunnel syndrome did not develop in the course of his employment.

        The Office of Judges affirmed the decision of the claims administrator in its January 13,
2012, Order. The Office of Judges determined that the analysis for cubital tunnel syndrome is
similar to the analysis for carpal tunnel syndrome. Medical conditions that frequently produce or
contribute to carpal tunnel syndrome are diabetes, hypertension, obesity, alcohol abuse,
rheumatoid arthritis, and postural abnormalities. The Office of Judges found that in this case, a
preponderance of the evidence shows that Mr. Richards did not develop bilateral cubital tunnel
syndrome in the course of his employment. He has a history of occupational carpal tunnel
syndrome, but he also has a history of diabetes with peripheral neuropathy and arthritic-type
symptoms in his upper extremities. He argued that his bilateral cubital tunnel syndrome was
caused by his duties as a bulldozer operator. The Office of Judges determined that the opinions
of Drs. Mukkamala and Bailey were persuasive. It found no persuasive evidence linking Mr.
Richards’s bilateral cubital tunnel syndrome to his occupational duties. Accordingly, the Office
of Judges concluded that this left Dr. Mukkamala’s and Dr. Bailey’s opinions unimpeached from
a medical perspective.

        The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges in its June 27, 2012, decision and affirmed its Order. This Court agrees with the
reasoning and conclusions of the Board of Review. Mr. Richards has several risk factors for the
condition, most significantly diabetes. He has a history of diabetic neuropathy in his upper
extremities. Both Drs. Mukkamala and Bailey were of the opinion that Mr. Richards’s bilateral
cubital tunnel syndrome did not occur in the course of his employment. A preponderance of the
evidence therefore supports the decision of the Board of Review.


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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: March 10, 2014

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




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