                               STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS

WV MANUFACTURING,                                                               FILED
Employer Below, Petitioner                                                 November 15, 2018
                                                                             EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
vs.)      No. 18-0542 (BOR Appeal No. 2052330)                                   OF WEST VIRGINIA
                      (Claim No. 2017003464)

DANNY ARTHUR,
Claimant Below, Respondent


                               MEMORANDUM DECISION
       Petitioner WV Manufacturing, by Jane Ann Pancake and Jeffrey B. Brannon, its
attorneys, appeals the decision of the West Virginia Workers’ Compensation Board of Review.1

        The issue on appeal is compensability. The claims administrator rejected the claim for
bilateral carpal tunnel syndrome on November 2, 2016. The Office of Judges affirmed the
decision in its November 8, 2017, Order. The Order was reversed by the Board of Review on
May 10, 2018, and the claim was held compensable for bilateral carpal tunnel syndrome. 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. Arthur, a master mechanic, alleges that he developed bilateral carpal tunnel
syndrome in the course of and resulting from his employment. Mr. Arthur had a previous claim
for carpal tunnel syndrome on April 2, 1996. In the application for benefits, he alleged that the
condition was the result of pulling cables and using an impact wrench at work. Mr. Arthur
testified in a November 26, 1996, deposition that he worked as a crane mechanic which required
inspecting cranes, repairing cranes, and ripping out gear boxes. This work required him to use

1
    A response was not filed on behalf of Danny Arthur.
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hand tools for six hours a day. He used both impact wrenches and non-power tools. He also used
a sledgehammer.

        The claim was held compensable on April 23, 1998, by the Office of Judges. The Board
of Review reversed the decision, and on April 28, 2000, this Court remanded the case to the
Board of Review with instructions to hold the claim compensable for bilateral carpal tunnel
syndrome and to authorize surgery if it was medically necessary. On July 6, 2003, Saghir Mir,
M.D., performed an independent medical evaluation in which he noted that Mr. Arthur worked
as a crane mechanic and had developed bilateral pain, numbness, and weakness in his hands. He
diagnosed bilateral carpal tunnel syndrome. Mr. Arthur declined surgery. Dr. Mir found that he
had reached MMI and assessed 5% impairment.

        In the case at bar, Mr. Arthur was treated on April 11, 2016, by John Schmidt, M.D., for
neck, shoulder, and bilateral arm pain. The symptoms had been present for a year. It was noted
that Mr. Arthur was previously seen in 2013 for the same symptoms and cervical surgery was
recommended but he chose conservative therapy instead. It was also noted that Mr. Arthur had a
history of carpal tunnel syndrome and cervical pain. A cervical MRI taken on April 1, 2016,
showed multilevel cervical spondylitic arthropathy. Dr. Schmidt diagnosed cervical spondylosis,
cervical disc degeneration, and bilateral arm pain. An EMG performed on May 12, 2016, showed
severe and moderate bilateral carpal tunnel syndrome. Dr. Schmidt recommended surgery which
was performed on the left wrist on June 2, 2016. That day, Dr. Schmidt completed a short term
disability form in which he stated that Mr. Arthur’s bilateral carpal tunnel syndrome is the result
of his work duties. In a June 16, 2016, treatment note, Dr. Schmidt noted that Mr. Arthur’s left
carpal tunnel release was successful. His job required heavy labor, and he was not yet able to
return. Dr. Schmidt recommended he undergo right carpal tunnel release surgery and that surgery
was performed on July 14, 2016.

        On October 13, 2016, Prasadarao Mukkamala, M.D., performed an independent medical
evaluation in which he noted that Mr. Arthur developed numbness and tingling in both hands in
the spring of 2016. The claimant had similar symptoms in the past but they reoccurred in 2016.
He underwent bilateral carpal tunnel releases, and his symptoms mostly resolved, with a little
residual pain in his hands. Dr. Mukkamala found Mr. Arthur had reached maximum medical
improvement and had no permanent impairment. He opined that the carpal tunnel syndrome was
not occupationally related. Dr. Mukkamala stated that Mr. Arthur is a maintenance person and
his work duties did not expose him to an increased risk of developing carpal tunnel syndrome.
Mr. Arthur also had two nonoccupational risk factors for carpal tunnel syndrome in the form of
advanced age and excess weight.

        Mr. Arthur testified in a deposition on January 26, 2017, that he had worked as a
maintenance man for the employer for forty-four years. His first eight years with the company
were spent working on the bagging line. This required him to lift bags between twenty-five and
fifty pounds, which put stress on his wrists. After that, he transitioned to maintenance work. His
work has required him to lift heavy chains, work on cranes and furnaces, tear down boxes,
change wheels, fix motors, and change crane cables. He has to use sockets, impact wrenches, and
ratchets. Mr. Arthur testified that his hands and wrists are often in awkward positions when
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working on cranes. He also sometimes uses a jackhammer. The impact wrenches, ratchets, and
jackhammer vibrated his hands and wrists and required a lot of force, putting pressure on his
hands and wrists. In 2016, Mr. Arthur stated that he developed pain and numbness in his hands.
He testified that he had broken his wrist in the past. In 2014 or 2015, he started having pain from
his neck to his right arm and was diagnosed with a cracked vertebra. Mr. Arthur stated that he
tore both of his rotator cuffs and left bicep in 2009 and had two surgeries on his left shoulder and
one on the right. Mr. Arthur admitted that he was previously diagnosed with bilateral carpal
tunnel syndrome in 1996, filed a claim, and the claim was held compensable. He did not undergo
surgery at that time.

       The claims administrator rejected the claim on November 2, 2016. On November 8,
2017, the Office of Judges affirmed the decision. It found that Mr. Arthur has been a mechanic at
the same job for forty-four years and though the name of the business changed, his job duties did
not. He filed a carpal tunnel claim in 1996 and the claim was held compensable in 2000. Surgery
was recommended in 1996, but Mr. Arthur declined. He was found to have reached maximum
medical improvement in 2003 and was awarded a permanent partial disability award. Mr. Arthur
continued to perform the same job until he filed a claim for carpal tunnel syndrome again in
2016. Dr. Schmidt diagnosed bilateral carpal tunnel syndrome and Mr. Arthur underwent surgery
on both wrists.

        The Office of Judges determined that the current claim for carpal tunnel syndrome
represents an aggravation or progression of a preexisting condition rather than a discrete new
occupational disease. Per Gill v. City of Charleston 236 W.Va. 737, 783 S.E.2d 857 (2016), a
preexisting injury or disease cannot be added as a compensable component of a claim merely due
to an aggravation or progression of the condition. The Office of Judges concluded that Mr.
Arthur’s bilateral carpal tunnel syndrome is a preexisting condition that progressively worsened
over time and is therefore not compensable.

        The Board of Review reversed the Office of Judges’ Order and held the claim
compensable for bilateral carpal tunnel syndrome on May 10, 2018. It found that Mr. Arthur
filed a claim for carpal tunnel syndrome in 1996. He declined to have surgery and continued to
work doing the same job as before. He testified in a deposition that his carpal tunnel syndrome
quit bothering him. The current application for carpal tunnel syndrome was signed by Dr.
Schmidt, who diagnosed occupationally related carpal tunnel syndrome. The Board of Review
determined that the claims administrator rejected the claim based on Dr. Mukkamala’s
independent medical evaluation in which he opined that the condition was not work related. The
Board of Review noted that the Office of Judges rejected the claim based on Gill v. City of
Charleston. However, the Board of Review concluded that Gill does not apply in the case at
hand. Specifically, Gill concerns a noncompensable preexisting injury. In this case, the
preexisting condition was held compensable. Further, West Virginia Code § 23-4-1(b) provides
that the term injury shall include occupational disease and benefits shall be paid to employees
who contract an occupational disease or have suffered a perceptible aggravation of an existing
occupational disease. Mr. Arthur worked for the employer for forty-four years, during which
time he had to lift heavy chains; use sockets, wrenches, and impact tools; and operate a
jackhammer. Most of the time he was working on cranes, his wrists were in awkward positions.
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The Board of Review found that following his 1996 claim, Mr. Arthur had additional exposure to
the hazards of carpal tunnel syndrome, and a preponderance of the evidence shows that the claim
should be held compensable.

        After review, we agree with the Board of Review. The Office of Judges was incorrect in
its application of Gill v City of Charleston, which concerned the addition of compensable
conditions to a claim and noncompensable preexisting conditions, neither of which are at issue in
the case at hand. Mr. Arthur has shown that he developed carpal tunnel syndrome in the course
of and resulting from his employment.

        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 15, 2018


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




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