                              STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
DAVINA L. KIRK,                                                                    March 21, 2018
                                                                             EDYTHE NASH GAISER, CLERK
Claimant Below, Petitioner                                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

vs.)   No. 17-0955 (BOR Appeal No. 2051966)
                    (Claim No. 2017006237)

KAREN HULTMAN, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION
         Petitioner Davina L. Kirk, by Reginald D. Henry, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Karen Hultman, Inc., by Melissa A.
Blatt, its attorney, filed a timely response.

       The issue on appeal is the compensability of Ms. Kirk’s workers’ compensation claim.
The claim was denied by the claims administrator on September 6, 2016. The Office of Judges
affirmed the claims administrator in its May 2, 2017, Order. The Order was affirmed by the
Board of Review on September 26, 2017. 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. Kirk worked as a medical assistant and phlebotomist for Karen Hultman, D.O., for
twelve years. Her work duties included drawing blood, assisting with lab orders, calling patients,
and preparing letters. On August 16, 2016, Ms. Kirk alleged that she sustained a repetitive stress
injury which caused left arm, shoulder and back pain. The injury was due to her drawing blood
repeatedly on a daily basis which required her to hold her arm in an awkward position.

        Ms. Kirk was treated by Dr. Hultman from December 27, 2007, though May 16, 2016.
On December 27, 2007, Ms. Kirk complained of thoracic spine, rib, and shoulder pain that had
been progressively worsening over the last month. Dr. Hultman diagnosed thoracic and cervical
strain and prescribed Motrin and Valium. On July 28, 2010, Ms. Kirk was seen for shoulder pain
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and weakness and Dr. Hultman diagnosed cervical and shoulder somatic dysfunction. Dr.
Hultman later diagnosed myalgia and thoracic strain. On June 2, 2014, Dr. Hultman referred Ms.
Kirk to a rheumatologist for chronic fatigue and myalgias. In May of 2015 Ms. Kirk was
diagnosed with a lumbar strain and referred to physical therapy for her left shoulder. In February
and May of 2016 Ms. Kirk was seen for overall fatigue and diagnosed with thoracic and lumbar
strains.

        Ms. Kirk sought treatment from Christopher Flint, D.C., on August 16, 2016, for her
thoracic spine, rib, and shoulder problems. Dr. Flint noted the thoracic symptoms had been
progressively worsening for the past month. Ms. Kirk told him the mechanism of injury was her
work as a phlebotomist. Dr. Flint diagnosed segmental and somatic dysfunction of the rib cage,
cervical, lumbar, pelvic, thoracic, and sacral regions, and tietze syndrome. The employee’s and
physician’s report of injury was completed the same day. The employee section of report stated
that Ms. Kirk had left arm, shoulder and back pain due to repetitive stress from drawing blood
repeatedly on a daily basis which required her to hold her arm in an awkward position. Dr. Flint
completed the physician section of the report and indicated Ms. Kirk had rib sublaxation with
combined costosternal/intercostal muscle strain and costochondral sprain that was related to her
work. He has continued to treat Ms. Kirk with a combination of manipulative therapy and
ultrasound.

        On September 2, 2016, Syam Stoll, M.D, performed a medical records review regarding
the causality and compensability of Ms. Kirk’s complaints in regard to her employment as a
medical assistant. Dr. Stoll noted the records showed Ms. Kirk injured her left arm, shoulder and
back due to a repetitive stress injury caused by drawing blood with her left arm repeatedly and
holding her arm in an awkward position. Dr. Stoll determined Ms. Kirk may draw blood ten to
thirteen times per day, but she did not draw blood repeatedly for eight hours per day. She also
did computer work and used fax and copy machines. Dr. Stoll opined that the subjective
complaints of Ms. Kirk were not supported by the objective medical documentation as being
causally related to the work. He also opined that classifying the injury as being repetitive stress
was inconsistent with Ms. Kirk’s job description.

      On September 6, 2016, the claims administrator rejected the claim because the disability
complained of was not due to an injury or disease received in the course of and resulting from
employment. This protest followed.

        In a September 27, 2016, letter to Brickstreet, Dr. Flint stated that Ms. Kirk was treated
from August 16, 2016 to September 6, 2016, for full spine vertebral pain and tension; poly
myalgia; and left costotransverse, costosternal, and costochondral T8-T10 rib pain. He opined
that the conditions of left scapular, left glenohumeral, and left upper arm pain should also be
added as compensable. In his opinion, the pain was a result of Ms. Kirk’s “workplace
ergonomics with continual and prolonged arm elevation which occurs as per her job description
as a phlebotomist”. In his opinion, Ms. Kirk’s injuries were due to progressive irritation of the
muscles leading to the myalgia and presenting as advanced thoracic outlet syndrome.


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        In a December 19, 2016, letter to Brickstreet, Dr. Hultman stated that Ms. Kirk was
employed as a phlebotomist and medical assistant, with 90% of her work in the lab. She had
been treated for fatigue and generalized pain since 2011, specifically in the back, knee, shoulder,
neck and right arm.

         Ms. Kirk testified by deposition on January 23, 2017. She described her work at Dr.
Hultman’s office as mostly phlebotomy work and stated that she did blood work for about
twenty to twenty-seven patients per day. She drew blood for about two to two and a half hours
during her work day. She also performed urine drug screens, worked on lab letters, and made
phone calls. When she was not drawing blood, her left arm was up on a desk and she was
writing. When she drew blood, she was generally sitting and her left arm was outstretched
directly in front of her. She is left handed. She started having pain in her left shoulder and upper
back in January of 2016. The pain is in her chest, under her clavicle, and around the left shoulder
blade, shoulder, elbow, and down to her hand. She has continued to treat with Dr. Hultman, who
treats her with adjustments and a machine that vibrates the rib cage and muscles. She has a little
bit of relief following that treatment. She continued to have pain at the top of her shoulder blades
as well as tightness, soreness, left arm weakness, and weakness underneath the clavicle. Her
symptoms had not improved since she quit working in August of 2016.

        The Office of Judges affirmed the claims administrator’s rejection of the claim on May 2,
2017. It found that Ms. Kirk failed to establish by a preponderance of the evidence that she
sustained a repetitive stress injury due to her work. Based on Ms. Kirk’s deposition testimony,
the Office of Judges determined that she was not required to continually or repetitively use her
left arm for prolonged periods of time during the day. The repetitive activities she performed
would not be sufficient to produce a repetitive stress injury. The Office of Judges also found that
the medical evidence did not support a compensable diagnosis. It determined the record did not
contain any reliable evidence that drawing blood for two hours a day would cause somatic
dysfunction in the rib cage or thoracic pain. Ms. Kirk’s treatment for diffuse pain complaints
from December of 2007 to May of 2016 suggested that she had a pre-existing condition
unrelated to her employment. The Office of Judges determined that the weight of the evidence
did not support compensability of the claim. The Board of Review adopted the findings of fact
and conclusions of law of the Office of Judges and affirmed its Order on September 26, 2017.

        After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. Ms. Kirk has a ten year history of diffuse pain complaints and
fatigue. She has been diagnosed with strains, myalgias, and muscle weakness. Dr. Flint accepted
Ms. Kirk’s opinion that the ergonomics while she was working caused her symptoms. He also
accepted her description of her work duties as repetitive. However, according to Ms. Kirk’s
testimony, she was not performing repetitive work for eight hours five days a week. She testified
that she had other job duties that she performed throughout the day. The time she spent
performing those duties far outweighed the time she spent drawing blood. Additionally, there is
no reliable medical evidence connecting the symptoms she has to her work as a medical
assistant/phlebotomist.


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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: March 21, 2018

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




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