                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

RENEE WILLIS,                                                                  FILED
Claimant Below, Petitioner                                                 November 2, 2018
                                                                             EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
vs.)   No. 18-0379 (BOR Appeal No. 2052268)                                      OF WEST VIRGINIA

                   (Claim No. 2017028070)

WV PARKWAYS ECON DEVELOPMENT & TOURISM AUTHORITY,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Renee Willis, by Reginald D. Henry, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. WV Parkways Econ Development &
Tourism Authority, by Steven K. Wellman, its attorney, filed a timely response.

       The issue on appeal is compensability. The claims administrator rejected the claim on
June 19, 2017. The Office of Judges affirmed the decision in its October 20, 2017, Order. The
Order was affirmed by the Board of Review on March 26, 2018. 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. Willis, a toll taker, alleges that she developed radial tunnel syndrome and posterior
interosseous nerve syndrome as a result of her job duties. Prior to the report of injury, in a May
16, 2017, letter to Ms. Willis, Steven Maynard informed her that she was 50.63 hours short of
having leave to cover her absences and had been on unauthorized leave. It was noted that she had
written to the manager to request unpaid leave through April 20, 2017. Mr. Maynard stated that
the employer had concerns as she had not followed the proper procedure for requesting leave.
This was job abandonment and she was subject to dismissal.

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        Ms. Willis sought treatment from Nathan E. Doctry, M.D., on May 22, 2017. His notes
indicate Ms. Willis was seen for low back pain that had been present for years but had worsened
in the prior few months. She also had neck pain that had been present for three years. Dr. Doctry
noted that she was a toll taker and had repetitive motion of the right forearm, elbow, and arm.
Ms. Willis reported right arm pain that worsened with activity. Dr. Doctry diagnosed radial
tunnel syndrome. Ms. Willis was next treated on June 9, 2017, at which time Dr. Doctry noted
that she was to remain off of work until June 20, 2017. On June 20, 2017, she was reevaluated.
Ms. Willis reported that her pain had increased. Dr. Doctry again diagnosed radial tunnel
syndrome. She was to rest her right arm and could do moderate work duties if accommodations
were made.

        The claims administrator rejected the claim on June 19, 2017. It stated that it found
sufficient inconsistencies in the record to conclude that Ms. Willis was not injured in the course
of and resulting from her employment. Also, there was no medical evidence to support a work-
related injury.

        An employee’s and physician’s report of injury was completed on June 20, 2017. Dr.
Doctry completed the physician’s section and stated that he began treating Ms. Willis for an
occupational injury on May 22, 2017. Ms. Willis could return to modified duty with no repetitive
movement of the right arm and no lifting over a pound. The diagnoses were listed as radial
tunnel syndrome, posterior interosseous nerve syndrome, cervical strain, and thoracic strain. Ms.
Willis returned to Dr. Doctry on July 17, 2017, with continued pain in her shoulder and forearm
as well as numbness and tingling in her hand. Dr. Doctry noted that her arm needed six months
of rest and she had so far rested it for eight weeks. On September 12, 2017, Dr. Doctry indicated
Ms. Willis had seen no improvement. She told Dr. Doctry that an EMG had shown carpal tunnel
syndrome and neuropathy. Dr. Doctry told Ms. Willis he would only provide another four weeks
of disability.

        An affidavit was completed by Sherry Lilly, human resources manager, on September 18,
2017. Ms. Lilly stated that Ms. Willis’s job attendance record indicates she missed 29% of her
scheduled work in 2015, 85% in 2016, and 84% in 2017. She was terminated for her lack of
attendance in January of 2017 but reinstated in March of 2017. Rose Legg, claims adjuster, also
completed an affidavit in which she stated that Ms. Willis had fallen on ice six years prior and
struck her head. It was at this point that most, if not all, of her orthopedic complaints started. Ms.
Willis reported that none of the symptoms improved after the fall, even after a long absence from
work. Also, she had not completed a report of injury yet for the injury at issue. Dr. Doctry had
completed the physician’s section, but Ms. Willis’s section was left blank.

        Ms. Willis testified in a hearing before the Office of Judges on September 21, 2017, that
her job duties require her to reach toward a car with her left hand to collect money, push a button
on a screen twice with her right hand, and make change with both hands. She alleged that she
developed pain in her right forearm, aching in the elbow and shoulder, and tingling and
numbness in her right hand. Ms. Willis stated that she first noticed symptoms three years prior.
She admitted to falling six years prior but denied injuring her right extremity.

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        The Office of Judges affirmed the claims administrator’s rejection of the claim in its
October 20, 2017, Order. It found that Ms. Willis did not work regularly enough prior to the May
of 2017 diagnosis of radial tunnel syndrome and posterior interosseous nerve syndrome for work
to be the cause of the conditions. Further, Dr. Doctry’s opinion was not sufficient enough to
establish compensability of the claim. The Office of Judges looked to two medical articles
submitted into the record. The first, from Cleveland Clinic, indicates that radial tunnel syndrome
can cause fatigue and weakness in the forearm muscles; however, it does not cause tingling or
numbness in the arm. The Office of Judges found that Ms. Willis testified that she had had pain
in her forearm and elbow since 2014, but the Office of Judges found no evidence to support her
assertion. Further, the record shows that she did not work as a toll collector from July of 2016
through February of 2017. From December of 2015 through February of 2017, she only worked
thirty-nine days. Given the lack of forceful movements or twisting motions, causes of radial
tunnel syndrome, from July of 2016 through February of 2017, the Office of Judges concluded
that if Ms. Willis suffered from radial tunnel syndrome starting in 2014, she should have
recovered by October of 2016. The Office of Judges also found a conflict between the time Ms.
Willis alleges the symptoms started, 2014, and the time Dr. Doctry noted the symptoms had
persisted, which was noted as months, not years. If Dr. Doctry is correct about the onset time, the
Office of Judges found that the symptoms started during a time that Ms. Willis was not working
and therefore had no occupational exposure. The Office of Judges further determined that the
lack of improvement in her symptoms, given the time she took off of work, is not consistent with
radial tunnel syndrome as the condition should have improved. Ms. Willis testified at the hearing
that her symptoms had shown no improvement.

        The Office of Judges also determined that the diagnosis of radial tunnel syndrome is
questionable given Ms. Willis’s other reported symptoms. Specifically, she reported the muscles
on the right side of her shoulder blade locking up with spasms, shoulder weakness, and pain in
her back on the right side. Also, an EMG showed carpal tunnel syndrome and neuropathy of the
right arm. Given the evidence of record, the Office of Judges found Dr. Doctry’s diagnoses of
occupationally related radial tunnel syndrome and posterior interosseous nerve syndrome to be
unreliable. Dr. Doctry included in his diagnosis the conditions of cervical and thoracic strain,
neither of which are related to the injury at issue. Additionally, there is no evidence that Dr.
Doctry was aware of Ms. Willis’s time off of work or the fact that she was only exposed to
repetitive movements for thirty-nine days from December of 2015 through February of 2017.
The Board of Review adopted the findings of fact and conclusions of law of the Office of Judges
and affirmed its Order on March 26, 2018.

        After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. Radial tunnel syndrome and posterior interosseous nerve
syndrome are conditions that result in entrapment of the radial nerve caused by over use of the
arm to push and pull and repetitive over use of the hand to grip, pinch, and pull. The evidence of
record indicates that Ms. Willis did not develop these conditions as a result of her job duties. Her
job required her to use her right hand to touch a screen and make change. Further, she missed
29% of her scheduled work in 2015, 85% in 2016, and 84% in 2017. It was therefore logical for
the Office of Judges to conclude that she did not work enough days to cause a repetitive use
injury to her right arm.
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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: November 2, 2018


CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Paul T. Farrell sitting by temporary assignment
Justice Tim Armstead
Justice Evan H. Jenkins

Justice Allen H. Loughry II suspended and therefore not participating.




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