                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
TOMMY TOLER,                                                                   November 20, 2013
                                                                            RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.)   No. 12-0263 (BOR Appeal No. 2046193)
                   (Claim No. 2010136020)

PINNACLE MINING COMPANY,
Employer Below, Respondent

                             MEMORANDUM DECISION

        Petitioner Tommy Toler, by Reginald D. Henry, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Pinnacle Mining Company, by Sean
Harter, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated January 31, 2012, in
which the Board affirmed a July 29, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s September 14,
2010, Order rejecting Mr. Toler’s application for workers’ compensation benefits. 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. Toler retired on March 29, 2009, after being employed as a coal miner/mechanic by
Pinnacle Mining Company for approximately thirty-one years. In May of 2010, Mr. Toler was
diagnosed with carpal tunnel syndrome. The claims administrator rejected his application for
workers’ compensation benefits and held that a work-related injury had not occurred. The Office
of Judges held that the evidence did not support Mr. Toler’s argument that his carpal tunnel
syndrome was caused by his employment. Mr. Toler disagrees and asserts that a preponderance
of the evidence establishes that he developed carpal tunnel syndrome in the course of and as a
result of his employment. Pinnacle Mining Company maintains that a clear preponderance of the
evidence demonstrates that Mr. Toler’s carpal tunnel syndrome was non-occupational.
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        On May 3, 2010, Dr. Othman performed a nerve conduction study, and an EMG of Mr.
Toler’s upper extremities that revealed mild carpal tunnel in both wrists with significant
weakness. Dr. Muscari diagnosed Mr. Toler with occupational carpal tunnel syndrome in both
wrists. On May 24, 2011, Dr. Guberman opined that Mr. Toler’s bilateral carpal tunnel syndrome
was causally related to the use of his hands at work. On September 8, 2010, Dr. Mukkamala
opined that Mr. Toler had a borderline case of carpal tunnel syndrome causally related to non-
occupational activities and excessive weight. Dr. Mukkamala noted that Mr. Toler’s symptoms
became worse after he stopped working and began doing activities around the house. The Office
of Judges noted that Mr. Toler did not list carpal tunnel syndrome on his Social Security
Disability application on November 25, 2009, and therefore concluded that he did not have
carpal tunnel syndrome at that time. The Office of Judges found that Dr. Velasquez’s report on
January 26, 2010, did not indicate that Mr. Toler had discussed symptoms of carpal tunnel
syndrome at that time. Dr. Lambrechts’s February 11, 2010, report of physical residual
functional capacity assessment did not indicate carpal tunnel syndrome. The Office of Judges
found that the evidence does not support Mr. Toler’s argument that his carpal tunnel syndrome
was caused in the course of and as a result of his employment. The Board of Review reached the
same reasoned conclusion in its decision of January 31, 2012. We agree with the reasoning and
conclusions of the Office of Judges and 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.

                                                                                        Affirmed.

ISSUED: November 20, 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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