                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               June 1, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
KIMBERLY A. ROBIDA,                                                           OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0882 (BOR Appeal No. 2049355)
                   (Claim No. 2013029524)

THOMAS HEALTH SYSTEM, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Kimberly A. Robida, by William B. Gerwig, her attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. Thomas Health System, Inc., by
Timothy E. Huffman, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated September 4, 2014, in
which the Board reversed and vacated a March 25, 2014, Order of the Workers’ Compensation
Office of Judges. The Board of Review reinstated the claims administrator’s May 31, 2013,
decision which rejected Ms. Robida’s application for workers’ compensation benefits. The
Office of Judges’ Order had reversed the claims administrator’s decision and held the claim
compensable for right side 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.

       Ms. Robida worked the registration desk for six years at Thomas Health System, Inc. Her
job duties primarily entailed keying in patient information on a computer. She was left handed,
but during her work day she used her right hand to operate her computer’s mouse. In December
of 2012 she began experiencing pain and numbness in her right hand. Ms. Robida sought
treatment for these symptoms from Samer Nasher, M.D., who diagnosed her with carpal tunnel
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syndrome of the right hand. Dr. Nasher believed this condition resulted from her employment.
Several months later, Ms. Robida stopped working and filed an application for workers’
compensation benefits. The physician’s portion of the application was filled out by Dr. Nasher,
and he stated that her carpal tunnel syndrome was the result of an occupational injury. An
electromyography (EMG) was then taken of her right wrist which revealed severe right carpal
tunnel syndrome with signs of chronic denervation. Ms. Robida’s application was reviewed by
Rebecca Thaxton, M.D., who found that her carpal tunnel syndrome was idiopathic in nature. Dr.
Thaxton believed that Ms. Robida’s weight was a risk factor in developing carpal tunnel
syndrome. Dr. Thaxton found that there was no relationship between her clerical work duties and
her condition. On May 31, 2013, the claims administrator rejected Ms. Robida’s application for
workers’ compensation benefits based on Dr. Thaxton’s opinion. Ms. Robida’s application was
also reviewed by Randall Short, D.O. He found that there was surveillance video taken on May
13, 2013, which showed Ms. Robida carrying keys, her pocketbook, and other items with her
right hand without any obvious difficulty. Dr. Short noted that Ms. Robida also worked a side
job at a t-shirt factory which could have contributed to her carpal tunnel syndrome.

        Following the rejection of her claim, Ms. Robida testified by deposition. She stated that
although her son owned and operated a t-shirt business, she never worked in the factory or
operated any of the equipment used to make the shirts. She also testified that during her work
day she would spend at least seven hours keying in patient information. She stated that she used
her right hand primarily to operate the mouse at her computer. She testified that she had not
worked since April 29, 2013, and that the swelling and pain in her wrist had decreased since that
time. However, she complained that she still had trouble holding or lifting anything with her
right hand. She also admitted that she fractured her right wrist as a child. Ms. Robida was then
treated by Abdalla Bandak, M.D., who found that she had severe right side carpal tunnel
syndrome. He also found that she was currently receiving treatment for bulging discs in her back
and neck. Dr. Bandak found that the cause of Ms. Robida’s symptoms was complex. He found
that a lesion in her neck could be related to her carpal tunnel syndrome. However, he
recommended that she undergo right carpal tunnel release to relieve the pain and numbness in
her right wrist. Prasadarao B. Mukkamala, M.D., then evaluated Ms. Robida. He found that she
was significantly overweight and that her obesity was a more likely cause of her carpal tunnel
syndrome than her work activities. Dr. Mukkamala found that her primarily clerical job duties
should not have caused her condition. Two weeks later, Dr. Mukkamala also reviewed
surveillance video of Ms. Robida taken on May 13, 2013. He agreed with Dr. Short that her
upper extremities did not appear to be limited because of her condition. On March 25, 2014, the
Office of Judges reversed the claims administrator’s decision and held the claim compensable for
right carpal tunnel syndrome. On September 4, 2014, the Board of Review reversed and vacated
the Office of Judges’ Order and reinstated the claims administrator’s rejection of the claim,
leading Ms. Robida to appeal.

        The Office of Judges concluded that the claim should be held compensable for right
carpal tunnel syndrome. The Office of Judges based this decision on the EMG testing. It found
that Ms. Robida’s clerical duties and constant computer use were the most likely cause of her
carpal tunnel syndrome. The Office of Judges noted that her job required her to spend a majority
of her time using a computer and her symptoms were worse while she was working. The Office
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of Judges also noted that Dr. Nasher believed that her condition was related to her work
activities. The Office of Judges considered the reports of Dr. Thaxton, Dr. Short, and Dr.
Mukkamala, but it did not rely on their opinions because it found that there was no consensus
among these physicians concerning the cause of Ms. Robida’s symptoms. The Office of Judges
also considered the surveillance video taken of Ms. Robida on May 13, 2013, but it found that
she primarily used her left hand, and her activities were not entirely inconsistent with her
complaints of right hand pain and numbness.

        In reversing the Order of the Office of Judges, the Board of Review concluded that it was
clearly wrong because there was insufficient evidence in the record to determine that Ms.
Robida’s carpal tunnel syndrome is causally related to her employment. The Board of Review
also noted that West Virginia Code of State Rules § 85-20-41 (2006) indicates that there is no
relationship between normal clerical activities and carpal tunnel syndrome. The Board of Review
found that Ms. Robida’s job did not fall in the high risk category for developing carpal tunnel
syndrome. The Board of Review also noted that Dr. Mukkamala believed Ms. Robida’s
condition was more likely related to her weight.

       We agree with the conclusions and findings of the Board of Review. Ms. Robida has not
presented sufficient evidence to show that she developed right side carpal tunnel syndrome in the
course of and resulting from her employment. The evidence in the record indicates that Ms.
Robida’s condition is an ordinary disease of life and is not related to her work activities. Ms.
Robida’s testimony demonstrates that her job activities are clerical in nature. She has not
demonstrated that her job involves the type of awkward wrist positioning or high force manual
movements that have been shown to contribute to carpal tunnel syndrome. West Virginia Code
of State Rules § 85-20-41.5. Although Dr. Nasher’s treatment notes attribute Ms. Robida’s
condition to her clerical duties, his opinion does not involve a careful look at contributing non­
compensable factors. The opinion of Dr. Mukkamala, which attributes Ms. Robida’s condition to
her weight, is more consistent with the directives of West Virginia Code of State Rules § 85-20­
41, and the Board of Review was justified in relying on his opinion.

        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: June 1, 2015

CONCURRED IN BY:
Justice Robin J. Davis
Justice Brent D. Benjamin
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Justice Menis E. Ketchum

Justice Allen H. Loughry II


DISSENTING:
Chief Justice Margaret L. Workman




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