                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                               FILED
                                                                                 June 5, 2013
                                                                            RORY L. PERRY II, CLERK
BOBBY C. CARPENTER,                                                       SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA
Claimant Below, Petitioner

vs.)   No. 11-1331 (BOR Appeal No. 2045727)
                    (Claim No. 2008041233)

INTERNATIONAL COAL GROUP, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Bobby C. Carpenter, by John C. Blair, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. International Coal Group, Inc., by
George E. Roeder III, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated August 26, 2011, in
which the Board affirmed a March 2, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 28, 2010,
decision granting Mr. Carpenter an 11% permanent partial disability award for carpal 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. Carpenter injured his wrist through repetitive movements while working for
International Coal Group, Inc. The claim was held compensable for thenar atrophy and bilateral
carpal tunnel syndrome. On January 28, 2010, the claims administrator granted Mr. Carpenter an
11% permanent partial disability award.

      The Office of Judges affirmed the claims administrator’s decision, and held that the 11%
permanent partial disability award for residual impairment due to bilateral carpal tunnel
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syndrome included the impairment related to the median nerve resulting in thenar atrophy. On
appeal, Mr. Carpenter disagrees and asserts that thenar atrophy has been established in this claim
as a separate diagnosis, and Dr. Poletajev is the only physician who appropriately rated the Mr.
Carpenter for his bilateral carpal tunnel syndrome and his thenar atrophy and therefore, his report
should be given greater evidentiary weight. International Coal Group maintains that the Board of
Review was correct in affirming the Office of Judges’ Order because thenar atrophy is a
symptom of carpal tunnel syndrome, and therefore, to be in accordance with the American
Medical Association’s Guides to the Evaluation of Permanent Impairment, (4th ed. 1993), it
should not be rated separate from carpal tunnel syndrome.

        Dr. Polejatev calculated Mr. Carpenter as having 10% impairment for his right wrist,
which he adjusted to 6% in accordance with West Virginia Code of State Rules § 85-20 (2006),
and 10% impairment for thenar atrophy under range of motion test. Dr. Grady noted that the
American Medical Association’s Guides to the Evaluation of Permanent Impairment, (4th ed.
1993) do not have a specific ratable criteria for thenar atrophy. He determined that Dr.
Poletajev’s impairment ratings for the diagnosis of thenar atrophy are duplicated in the
impairment calculations for the decreased sensation of the left thumb which would be covered
under the left hand median neuropathy utilizing carpal tunnel syndrome, for which he received
the maximum statutory impairment rating. In Dr. Grady’s September 28, 2010, letter, he rated
Mr. Carpenter as having a 5% impairment for right carpal tunnel syndrome and a 6% impairment
for left carpal tunnel syndrome. On December 17, 2010, Dr. Hennessey reviewed Mr.
Carpenter’s medical records and found he had 6% whole person impairment for his carpal tunnel
syndrome. He opined that Dr. Poletajev, a chiropractor, erroneously rated the thenar weakness
and atrophy. Dr. Hennessey stated that thenar is defined as the thumb, and he determined that
Mr. Carpenter’s thumb muscle has wasted away due to his carpal tunnel nerve not working
properly. Therefore, he concluded that rating thenar atrophy separate from the carpal tunnel
syndrome is rating the same condition twice because the left thenar atrophy is a manifestation of
his severe carpal tunnel syndrome.

        The Office of Judges concluded that Mr. Carpenter was entitled to an 11% permanent
partial disability award for bilateral carpal tunnel syndrome. It noted that even though Dr.
Poletajev adhered to the standards of the American Medical Association’s Guides to the
Evaluation of Permanent Impairment, (4th ed. 1993) in the determination of impairment for
carpal tunnel syndrome, he deviated from it when he did a separate evaluation for thenar atrophy.
The Office of Judges further noted that Dr. Grady and Dr. Hennessey opined that Dr. Poletajev
was duplicating impairment findings. Ultimately, the Office of Judges held that the evidence
supported only the 11% permanent partial disability award. The Board of Review reached the
same reasoned conclusions in its decision of August 26, 2011. We agree with the reasoning and
conclusions of the Board of Review.

        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: June 5, 2013

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




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