                             STATE OF WEST VIRGINIA


                          SUPREME COURT OF APPEALS
                                                                                    FILED
                                                                                  August 2, 2017
BENNY SMITH,                                                                   RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


vs.)   No. 16-0899 (BOR Appeal No. 2051236)
                   (Claim No. 2015016271)

ALPHA NATURAL RESOURCES, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Benny Smith, by Anne L. Wandling, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Alpha Natural Resources, by T.
Jonathan Cook, its attorney, filed a timely response.

       The issue on appeal is whether Mr. Smith developed carpal tunnel syndrome in the
course of and resulting from his employment. The claims administrator denied Mr. Smith’s
application for carpal tunnel syndrome on March 27, 2015. The Office of Judges affirmed the
decision on March 31, 2016. The Board of Review affirmed the Order of the Office of Judges on
August 26, 2016. 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. Smith, a former employee of Alpha Natural Resources, retired on September 18,
2012. On May 24, 2013, Mr. Smith underwent a nerve conduction study performed by Milton
Calima, M.D., a neurosurgeon. Dr. Calima noted that Mr. Smith was a fifty-eight year old right
handed male who was five feet ten inches tall and weighed 179 pounds. He noted that Mr. Smith
suffered from gout, arthritis, and gastroesophageal reflux disease. Mr. Smith complained of
bilateral hand numbness, burning, and tingling sensations for twelve months. He felt that it was
getting worse the past few days. He reported no precipitating event. He just gradually began to
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notice symptoms and now they were more persistent, especially at night time. He also
complained of neck pain without radiation. There was electrophysiological evidence of bilateral
median nerve demyelinating neuropathy across the carpal tunnel involving the sensory fibers
only and no denervation potentials in the left abductor pollicis brevis muscle, which was
consistent with mild bilateral carpal tunnel syndrome. There was also evidence of ulnar
neuropathy across the left elbow consistent with left cubital tunnel syndrome and left radial
neuropathy in the wrist. There was no evidence of left cervical radiculopathy.

        A June 3, 2013, treatment record from Hilltop Primary Care showed that Mr. Smith was
seen for his neck and back. After examining Mr. Smith, the doctor listed diagnoses of
osteoarthrosis, unspecified whether generalized or localized, involving unspecified site;
esophageal reflux; diaphragmatic hernia without mention of obstruction; gangrene; gout;
degeneration of lumbar or lumbosacral intervertebral disc; intervertebral disc disorders; and
cervicalgia. He recommended a low fat/low cholesterol diet, exercise as tolerated, bilateral wrist
splints, Motrin for pain, heat to the back and neck, and follow up in one month. On April 25,
2014, Mr. Smith returned to Hilltop Primary Care. On examination there was bilateral knee pain
and tenderness along joint lines with antalgic gait. He still had numbness and discomfort in his
bilateral hands with positive carpal tunnel. The physician recommended a low potassium diet,
continue medication, heat to knees, bilateral wrist splints at night, and return in two months.

       On November 12, 2014, Mr. Smith completed a report of injury alleging injury to his
arms and hands due to his job as a foreman/equipment operator for the employer. His date of last
exposure was listed as November 18, 2013.1 Mr. Hatfield, APRN, signed the physician’s section
of the report. Mr. Smith returned to Hilltop Primary Care on November 18, 2014, and
complained of bilateral knee pain as well and numbness and discomfort in both of his hands. On
December 16, 2014, another report of injury was completed by Mr. Smith alleging an injury to
his back, arms, hands, and knees due to the repetitive stress of equipment operation and driving.
Mr. Hatfield completed the physician’s portion listing cumulative trauma; repetitive motion
occupational injury; and occupational disease to his back, arms, hands, bilateral knees, and neck.

        A handwritten questionnaire completed by Mr. Smith on January 2, 2015, listed his work
history as equipment operator and mechanic from 1976 through 2012 working for various
companies. He does not hunt, sew, knit, craft, perform lawn care, work on motorcycles, play
computer games/work, do wood working, or other fine motor activities. He does not have
diabetes, thyroid disease, or high blood pressure. On February 9, 2015, Mr. Smith returned to
Hilltop Primary Care with complaints of numbness in his bilateral hands with a long term history
of carpal tunnel syndrome and cervicalgia. He reported that it interferes with his ability to sleep.
On examination he had decreased sensation in his fingertips on both hands and still had
numbness and discomfort in both hands with positive carpal tunnel signal. The doctor diagnosed
carpal tunnel syndrome and recommended he continue to pursue carpal tunnel syndrome surgery
and wear wrist splints at night.



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    Mr. Smith was laid off from employment on September 18, 2012.
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        On March 13, 2015, Paul Bachwitt, M.D., completed a report at the request of the claims
administrator. Dr. Bachwitt was asked to issue an opinion on what, if any, injury should be
covered by workers’ compensation. He noted that Mr. Smith complains of neck and back pain,
numbness in his arms and hands, and pain in both knees. After examination, he diagnosed
degenerative changes in the cervical and lumbar spine compatible with age and a right knee
sprain. X-rays taken in the office revealed no evidence of arthritic changes in either knee. Dr.
Bachwitt saw no evidence of carpal tunnel syndrome and opined that Mr. Smith did not suffer
from carpal tunnel syndrome. The claims administrator rejected Mr. Smith’s claim for carpal
tunnel syndrome on March 27, 2015.

       On June 12, 2015, Mr. Smith was deposed. He testified that he first noticed carpal tunnel
syndrome symptoms in early 2011. He felt some numbness prior to that when he was an
equipment operator. He first sought treatment at Hilltop Primary Clinic with Dr. Hatfield, who
sent him to Pikeville Medical. He saw Dr. Calima and underwent a nerve conduction study. He
was told that he had carpal tunnel syndrome. When he was working he ran heavy equipment
including dozers, rock trucks, graders, loaders, and construction type equipment on a surface
mine job. He operated a road grader as well. He noted that he had to use both hands to drive,
with one guiding or steering, and the other putting it in motion. He used his right hand to steer
and the left for the operation. His hands got worse when he switched jobs from heavy equipment
operator to mine foreman. He was driving a pickup for fifteen hours a day as a foreman and
doing paperwork. He testified that he has never had any kind of broken bones in his wrist or
hands.

        Dr. Bachwitt testified in a deposition on July 30, 2015, that that he was made aware of
Mr. Smith’s nerve conduction study that showed mild bilateral carpal tunnel syndrome. He
admitted there was evidence of bilateral median nerve immobilization across the carpal tunnel,
which is consistent with mild bilateral carpal tunnel syndrome. He stated that a nerve conduction
study is a very helpful test but it is not always correct. He opined that Dr. Calima was incorrect
when he made a carpal tunnel syndrome diagnosis. He explained that the Tinel’s and Phalen’s
tests taken with his examination and expertise showed no carpal tunnel syndrome. He stated that
Mr. Smith’s symptoms and the tests did not follow a pattern compatible with carpal tunnel
syndrome. He further opined that his testing did not come close to showing carpal tunnel
syndrome. He also stated that the two-point discrimination of each finger is completely normal.

        On September 1, 2015, Prasadarao Mukkamala, M.D., examined Mr. Smith and offered
an opinion as to whether his carpal tunnel syndrome was work-related. Dr. Mukkamala stated
that Mr. Smith’s symptoms were not very typical of carpal tunnel syndrome, as Mr. Smith
complained of more numbness in the fifth digit compared to the second and third digit in both
hands. Dr. Mukkamala stated that these symptoms were suggestive of ulnar neuropathy. He
stated the electrodiagnostic test results were not very impressive to diagnose carpal tunnel
syndrome, as the test was marginal at best. It was questionable whether Mr. Smith has carpal
tunnel syndrome, and Dr. Mukkamala opined that even if he does suffer from carpal tunnel
syndrome, it was not caused by his occupational activities. Dr. Mukkamala noted that Mr. Smith
stopped working when the mine closed and never missed work due to his hand symptoms. Dr.
Mukkamala also noted in his report that since Mr. Smith stopped working, his symptoms have
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increased. Dr. Mukkamala concluded that if his work activities caused the carpal tunnel
syndrome, then ceasing work should have improved his symptoms rather than increasing them.
Dr. Mukkamala further observed that during Mr. Smith’s last four years at Alpha Natural
Resources he was performing predominantly paperwork and some driving not expected to
require the force to cause carpal tunnel syndrome.

       Dr. Guberman issued a report on December 1, 2015, regarding Mr. Smith’s possible
diagnosis of carpal tunnel syndrome. After a record review and examination, Dr. Guberman’s
impression was bilateral carpal tunnel syndrome due to cumulative trauma at work. It was his
opinion that Mr. Smith’s work activities were the cause of his bilateral carpal tunnel syndrome.
He noted that there are no other contributing factors and no history of diabetes, thyroid disease,
or obesity.

       The Office of Judges concluded that Mr. Smith did not develop carpal tunnel syndrome
in the course of and as a result of his employment in a decision dated March 31, 2016. The
Office of Judges noted that it was not clear from the record whether Mr. Smith suffers from
carpal tunnel syndrome. Despite a nerve conduction study that would indicate carpal tunnel
syndrome, both Drs. Bachwitt and Mukkamala found no clinical evidence of carpal tunnel
syndrome. The Office of Judges found that the most persuasive evidence was that Mr. Smith’s
symptoms did not interfere with his work and increased when he was no longer working. The
Office of Judges noted that Mr. Smith ceased working on September 18, 2012, and in his May
24, 2013, report, Dr. Calima noted that Mr. Smith had complaints of bilateral hand numbness,
burning, and tingling sensations for twelve months, worsening over the past few days. Although
Mr. Smith was treated at Hilltop Primary Care on multiple occasions commencing at least on
June 3, 2013, the Office of Judges found that there was no mention of carpal tunnel symptoms
until November 18, 2014. Dr. Mukkamala stated that if Mr. Smith’s work were the source of his
symptoms, it would not be expected for his symptoms to increase when he ceased working. The
Board of Review adopted the findings of the Office of Judges and affirmed its Order on August
26, 2016.

       After review, we agree with the decision of the Office of Judges as affirmed by the Board
of Review. While a diagnostic study showed evidence that Mr. Smith has carpal tunnel
syndrome, the preponderance of the evidence supports the decision below that Mr. Smith’s
condition is not work related. Mr. Smith did not complain of the symptoms of carpal tunnel
syndrome until well after he quit working. Furthermore, two physicians of record concluded that
his carpal tunnel syndrome was not caused by his work activities. Their opinions are further
supported by the fact that Mr. Smith’s symptoms have worsened since he has stopped working.

        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.



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                                        Affirmed.

ISSUED: August 2, 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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