                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
CHUCK NAPIER,                                                                   March 12, 2015
                                                                            RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.)   No. 13-0848 (BOR Appeal No. 2048189)
                    (Claim No. 2010123867)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

DEDICATED LOGISTICS, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Chuck Napier, by Edwin H. Pancake, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. The West Virginia Office of the
Insurance Commissioner, by David L. Stuart, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated July 24, 2013, in which
the Board affirmed a February 8, 2013, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s October 25, 2011, decision
granting the request to reopen the claim for temporary total disability benefits. The Office of
Judges reversed the claims administrator’s April 12, 2012, decision to not add cubital tunnel
syndrome as a compensable condition of the claim. The Office of Judges also reversed the claims
administrator’s April 12, 2012, decision which assessed the grant of temporary total disability
benefits from January 22, 2009, through March 2, 2009, as an overpayment. 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

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reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

         Mr. Napier, a truck driver for Dedicated Logistics, Inc., parked his truck to log entries in
his journal on February 6, 2008, when he noticed an out of control tow truck coming down the
road. A car came loose from the tow truck and struck his parked truck. Mr. Napier grasped onto
the steering wheel to brace himself for impact. The collision caused the steering wheel to twist to
the right. This precipitated an injury to his right hand and spine. Mr. Napier filed a claim for
workers’ compensation benefits and his claim was held compensable for a sprain of the hand and
a sprain of the thoracic spine. On August 5, 2011, Mr. Napier submitted an application to reopen
his claim for temporary total disability benefits for the period of January 22, 2009, through
January 22, 2011. On October 25, 2011, the claims administrator granted the request for
temporary total disability benefits for the period of January 22, 2009, through March 2, 2009.
Mr. Napier also filed an application to have cubital tunnel syndrome added as a compensable
condition of his claim. On April 12, 2011, the claims administrator denied the request to add
cubital tunnel syndrome as a compensable condition. The claims administrator also determined
that it had overpaid Mr. Napier for the period of January 22, 2009, through March 2, 2009. Mr.
Napier protested.

        The Office of Judges determined that Mr. Napier’s cubital tunnel syndrome was received
in the course of and as a result of his employment. The Office of Judges relied upon the
mechanism of injury and Mr. Napier’s testimony. Mr. Napier did not have any pre-existing
numbness but developed the symptoms after the injury. Mr. Napier’s nerve conduction study
performed on September 23, 2008, showed left ulnar compressive neuropathy across the elbow
with sensory axonal loss features, which is consistent with cubital tunnel syndrome. The Office
of Judges noted that Mr. Napier’s testimony of injury supports a causal connection between the
injury and his symptoms. The Office of Judges also noted that Dedicated Logistics, Inc., did not
present evidence to rebut his diagnosis of cubital tunnel syndrome. As a result, the Office of
Judges reversed the claims administrator and held cubital tunnel syndrome to be a compensable
condition of this claim. The Office of Judges also determined that Mr. Napier’s claim was
properly reopened and that he is entitled to temporary total disability benefits from January 22,
2009, through March 2, 2009. The Office of Judges noted that Mr. Napier underwent cubital
tunnel release on January 22, 2009. As a result, the Office of Judges determined that temporary
total disability started on the date of cubital tunnel release. The Office of Judges also found that
Gerald Stashak, M.D., opined that Mr. Napier had reached his maximum degree of medical
improvement on March 2, 2009. As a result, the Office of Judges adopted March 2, 2009, as the
closing date of Mr. Napier’s temporary total disability benefits. The Office of Judges entered an
Order that found cubital tunnel syndrome to be a compensable condition, reversing the April 12,
2011, determination of the claim administrator. The Office of Judges also reversed the
assessment of an overpayment of temporary total disability and granted temporary total disability
benefits from January 22, 2009, through March 2, 2009. The Board of Review adopted the
findings of the Office of Judges and affirmed its Order.

      We agree with the findings of the Office of Judges and the conclusions of the Board of
Review. The evidence in the record supports the Office of Judges’ determination that Mr. Napier
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is entitled to temporary total disability benefits from January 22, 2009, through March 2, 2009.
Mr. Napier underwent cubital tunnel release on January 22, 2009, and was temporarily disabled
until March 2, 2009, when Dr. Stashak determined that he had reached his maximum degree of
medical improvement. Mr. Napier argues he should be entitled to benefits from January 22,
2009, through January 22, 2011, based upon Dr. Stashak’s reopening request. However, the
period of disability alleged by Dr. Stashak in his reopening request is not consistent with the
remainder of the evidence in the record. Dr. Stashak’s request for temporary total disability
benefits significantly exceeds the one-hundred-four-week payment period set out in West
Virginia Code § 23-4-6(c) (2005), and Mr. Napier has not sufficiently supported his request for
benefits beyond March 2, 2009, when Dr. Stashak initially determined that he had reached his
maximum degree of medical improvement. Mr. Napier has not introduced sufficient credible
evidence to show that he was unable to work after March 2, 2009.

        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 12, 2015

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




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