                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             December 2, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
JOHN PITTMAN,                                                                 OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-1130 (BOR Appeal No. 2048328)
                   (Claim No. 2012019991)

FOLA COAL COMPANY,
Employer Below, Respondent

and

GREENBRIER SMOKELESS COAL MINING, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner John Pittman, by J. Robert Weaver, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Fola Coal Company, LLC, by Bradley
A. Crouser, its attorney, filed a timely response.

         This appeal arises from the Board of Review’s Final Order dated October 7, 2013, in
which the Board reversed an April 24, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s March 1, 2012
decision rejecting Mr. Pittman’s application for workers’ compensation benefits. The Office of
Judges held the claim compensable for osteoarthritis of the shoulder, acromioclavicular joint
arthritis, and carpal tunnel syndrome of the right wrist. The Office of Judges also held that Fola
Coal Company was the sole chargeable employer in this claim. 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 that the Board of Review’s decision is based upon a material
mischaracterization of the evidentiary record. This case satisfies the “limited circumstances”
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requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate for a
memorandum decision rather than an opinion.

         Mr. Pittman worked as a surface mine blaster for Fola Coal Company. He began working
for Fola Coal Company on October 1, 1996. His job involved filling bore holes in the ground
with explosives. In order to perform this job properly, he was required to test the depth of each
bore hole with a weighted tape measure. Mr. Pittman primarily operated this weighted tape with
his right arm. Mr. Pittman performed this job until he was laid off and began working for
Greenbrier Smokeless Coal Mining, LLC, on August 2, 2011. Soon after he began working for
Greenbrier Smokeless Coal Mining, he was treated by Karen Hultman, M.D., for right upper
extremity pain. Mr. Pittman complained that this pain started ten years earlier. Mr. Pittman was
then referred to Matthew Nelson, M.D., who diagnosed him with osteoarthritis of the shoulder,
acromioclavicular joint arthritis, and carpal tunnel syndrome of the right wrist. Dr. Nelson also
had an MRI taken of Mr. Pittman’s right shoulder which revealed supraspinatus tendinitis and
impingement related to osteophytes at the level of the acromioclavicular joint. On October 4,
2011, Dr. Nelson performed arthroscopic surgery on Mr. Pittman’s right shoulder and carpal
tunnel release surgery on his right wrist. Following the surgery, Mr. Pittman filed an application
for workers’ compensation benefits and listed Fola Coal Company as his employer. Dr. Nelson
signed the physician’s portion of the application, which included the diagnosis of osteoarthritis
of the shoulder, acromioclavicular joint arthritis, and carpal tunnel syndrome. Dr. Nelson,
however, indicated that the cause of these conditions was unknown. On March 1, 2012, the
claims administrator rejected Mr. Pittman’s application. Mr. Pittman then testified by deposition.
He stated that he had first noticed the pain and numbness in his right arm and shoulder ten years
prior to filing his application for workers’ compensation benefits. He testified that he had been
working for Fola Coal Company for three to four years when the pain and numbness first
developed and it grew progressively worse over time. Mr. Pittman also testified that his work at
Fola Coal Company required him to continuously bob a weighted tape up and down to check the
depth of the bore holes. He stated that he primarily did this with his right arm. Finally, he
testified that his duties while working for Greenbrier Smokeless Coal Mining did not primarily
require the use of his right arm.

       Following Mr. Pittman’s deposition, the Office of Judges granted Fola Coal Company’s
motion to add Greenbrier Smokeless Coal Mining as a potential chargeable employer. On April
24, 2013, the Office of Judges reversed the claims administrator’s decision and held the claim
compensable for osteoarthritis of the shoulder, acromioclavicular joint arthritis, and carpal tunnel
syndrome of the right wrist. The Office of Judges also held that Fola Coal Company was the only
chargeable employer in this claim and denied its motion to charge Greenbrier Smokeless Coal
Mining or its successor for the compensable injury. The Board of Review then reversed the
Order of the Office of Judges and reinstated the claims administrator’s decision on October 7,
2013, leading Mr. Pittman to appeal.

        The Office of Judges concluded that Mr. Pittman suffered osteoarthritis of the shoulder,
acromioclavicular joint arthritis, and right wrist carpal tunnel syndrome in the course of and
resulting from his employment with Fola Coal Company. The Office of Judges based this
determination on Mr. Pittman’s deposition testimony. It found that Mr. Pittman’s work duties
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could have engendered carpal tunnel syndrome and the degenerative changes in his right
shoulder. The Office of Judges specifically noted that Mr. Pittman was right handed and his
work at Fola Coal Company primarily required the use of his right hand and arm. The Office of
Judges also concluded that Fola Coal Company should be the sole chargeable employer because
Mr. Pittman’s job duties at Greenbrier Smokeless Coal Mining did not involve the constant use
of his right arm. The Office of Judges also found that Mr. Pittman’s symptoms pre-dated his
employment with Greenbrier Smokeless Coal Mining and developed while Mr. Pittman worked
for Fola Coal Company.

        The Board of Review concluded that the Office of Judges was clearly wrong because Dr.
Nelson had found that the cause of Mr. Pittman’s conditions was unknown. The Board of
Review determined that Dr. Nelson was the only physician in the record who addressed the cause
of Mr. Pittman’s injuries. The Board of Review found that Dr. Nelson did not indicate that his
carpal tunnel syndrome and shoulder arthritis were occupationally related.

        The decision of the Board of Review was based on a material mischaracterization of the
sufficiency of the evidence in the record. Mr. Pittman has presented sufficient evidence to
demonstrate that he developed osteoarthritis of the shoulder, acromioclavicular joint arthritis,
and right wrist carpal tunnel syndrome in the course of and resulting from his employment with
Fola Coal Company. Mr. Pittman’s testimony draws a sufficient causal connection between his
work and these conditions. His testimony provided evidence of the type of forceful and repetitive
manual movements which have been shown to contribute to carpal tunnel syndrome according to
West Virginia Code of State Rules § 85-20-41.5 (2006). His testimony also draws a causal
connection between the arthritis in his shoulder and his work. The Office of Judges was within
its discretion in finding his current right upper extremity conditions compensable. Dr. Nelson’s
uncertainty concerning the cause of these conditions was not sufficient for the Board of Review
to reverse the Office of Judges’ Order. The evidence in the record also supports the Office of
Judges conclusion that Fola Coal Company is the only chargeable employer in this claim. Mr.
Pittman’s employment history connects the development of his current symptoms to his work for
Fola Coal Company.

        For the foregoing reasons, we find that the decision of the Board of Review is based on a
material misstatement or mischaracterization of particular components of the evidentiary record.
Therefore, the decision of the Board of Review is reversed and remanded with instructions to
reinstate the April 24, 2013, Order of the Office of Judges.

                                                                       Reversed and Remanded.


ISSUED: December 2, 2014




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CONCURRED IN BY:
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:
Chief Justice Robin J. Davis
Justice Brent D. Benjamin




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