                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
SPARTAN MINING COMPANY,                                                             May 21, 2018
                                                                             EDYTHE NASH GAISER, CLERK
Employer Below, Petitioner                                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

vs.)   No. 17-1003 (BOR Appeal No. 2052073)
                    (Claim No. 2016017206)

JOHN ANDERSON,
Claimant Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Spartan Mining Company, by Sean Harter, its attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. John Anderson, by Donald C.
Wandling, his attorney, filed a timely response.

        The issue on appeal is the compensability of Mr. Anderson’s claim for worker’s
compensation benefits. On May 25, 2016, the claims administrator denied Mr. Anderson’s claim
for bilateral carpal tunnel syndrome. The Office of Judges reversed the claims administrator in
its June 15, 2017, Order and held the claim compensable. The Order was affirmed by the Board
of Review on October 20, 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 that the Board of Review’s decision is based upon a material
misstatement or mischaracterization of the evidentiary record. This case satisfies the “limited
circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate
for a memorandum decision rather than an opinion.

       Mr. Anderson worked as a section boss at Spartan Mining Company for three and half
years until he was laid off on November 10, 2015. The next day he was treated by Vellaiappan
Somasundaram, M.D., for a history of chronic neck and back pain. Mr. Anderson was diagnosed
with osteoarthrosis, cervicalgia, brachial neuritis or radiculitis, lumbago, and thoracic or
lumbosacral neuritis or radiculitis. Dr. Somasundaram recommended a lumbar spine x-ray and a
cervical spine MRI. Mr. Anderson did not report any symptoms with his hands on this visit.


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        On November 30, 2015, EMG/NCS testing was performed by Dr. Somasundaram for
Mr. Anderson’s complaints of neck pain radiating to the bilateral upper extremities with
numbness, tingling, pain, and weakness which had been present for two years. The testing
revealed moderate to severe bilateral sensorimotor demyelinating and axonal medial nerve
neuropathy at the wrist consistent with bilateral carpal tunnel syndrome and right motor axonal
nerve neuropathy at the elbow consistent with right cubital tunnel syndrome. On December 10,
2015, Mr. Anderson completed the employees’ and physicians’ report of injury alleging injuries
to his arms and hands as the result of many years of work bolting and lifting heavy materials. He
listed his date of last exposure as November 10, 2015. Dr. Somasundaram completed the
physician section of the form on December 15, 2015, and noted the date of initial treatment as
November 30, 2015. He listed Mr. Anderson’s diagnoses as bilateral carpal tunnel syndrome and
right cubital tunnel syndrome and indicated this was due to an occupational injury.

        The Carpal Tunnel Syndrome Report was completed on January 13, 2016, and shows a
previous diagnosis of carpal tunnel syndrome on June 30, 2011, based on clinical symptoms, as
well as a previous diagnosis of cervicalgia and brachial neuritis on March 10, 2014. The date of
injury was listed as gradual and repetitive with November 30, 2015, listed as the actual date. It
was noted that Mr. Anderson was five feet eleven inches tall and weighed 267 pounds.

        Prior to working for Spartan Mining Company, on September 9, 2010, Mr. Anderson was
treated by Teresa Robinson, CFNP, for hypertension, lumbar spine pain, and cervical spine pain.
A history of back pain, arthritic condition, weakness, and carpal tunnel syndrome was noted. The
medication history included Neurontin. On December 28, 2010, Mr. Anderson was seen for
hypertension, back and neck pain, fatigue, and hand weakness. Mr. Anderson said the original
onset of his hand weakness was six years ago and the condition had been worsening.

        Christopher Martin, M.D., performed a medical records review on March 17, 2016. He
noted Mr. Anderson had been diagnosed with carpal tunnel syndrome on June 30, 2011, but that
the reasoning for the 2015 EMG/NCS studies showed a two year history of pain radiation to both
of Mr. Anderson’s arms. Mr. Anderson also had a history of numbness, tingling, pain, and
weakness in his arms. Dr. Martin opined that pain radiating from the neck is not typical for
carpal tunnel syndrome. He noted that the carpal tunnel syndrome report referenced diagnoses of
cervicalgia and brachial neuritis on March 10, 2014, and that those diagnoses can cause the
clinical findings seen in Mr. Anderson. Dr. Martin was unable to confirm if Mr. Anderson had
carpal tunnel syndrome because the diagnosis should be based on a clinical diagnosis and not
just EMG/NCS testing.

       On May 17, 2016, Dr. Martin authored a second report after reviewing Mr. Anderson’s
job description. Dr. Martin opined that Mr. Anderson’s job description did not support job duties
with the type of ergonomic exposure that is associated with an increased risk of carpal tunnel
syndrome. In his opinion, Mr. Anderson did not have carpal tunnel syndrome. But, if the
assumed diagnosis was carpal tunnel syndrome, then it would not be related to Mr. Anderson’s
work duties as a section production supervisor. He had worked as a supervisor for the previous
ten years and as an equipment operator for twenty-five years prior to that. In Dr. Martin’s
opinion, if Mr. Anderson’s work posed a risk of developing carpal tunnel syndrome, it would
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have been expected to develop while he was an equipment operator, not a supervisor. Dr. Martin
also noted that Mr. Anderson had been diagnosed with bilateral carpal tunnel syndrome in June
of 2011, prior to the time he started working for the employer. Therefore, his symptoms predated
his employment by one year. Based on this report, the claims administrator rejected the claim on
May 26, 2015.

        On September 2, 2016, Mr. Anderson testified via deposition that he last worked on
November 10, 2015, when he was laid off. He worked for Spartan Mining Company from June
of 2012 through November 10, 2015, and prior to that he worked for a coal mine in Kentucky
from 1994 until 2012. At Spartan Mining Company, he worked as a section boss which required
him to keep the section running; build stoppings with seventy to eighty pound cinder blocks;
hang fly pads and curtains; use a hammer and nails; and run a scoop, miner, and roof bolter
continuously. He had worked in the mines for at least thirty-five years. Prior to the EMG/NCS
testing in 2015, Mr. Anderson said he had problems with his hands going numb and giving out.
He first noticed the problems in 2010 but it got worse in 2014. While working for Spartan
Mining, he worked about thirty minutes a day doing bolt top two to three times per week. Since
he has stopped working, his hands still hurt.

       Prasadarao Mukkamala, M.D., performed an independent medical evaluation on
September 29, 2016. Mr. Anderson complained of numbness and aching in both hands. He told
Dr. Mukkamala that he retired on November 10, 2015, and that he never missed work due to
hand problems. His symptoms had not improved since he stopped working. Dr. Mukkamala
opined that the “clinical picture” was suggestive of bilateral carpal tunnel syndrome. He also
opined that the EMG/NCS testing was not credible, as it was technically a poor study. Dr.
Mukkamala found no evidence of right cubital tunnel syndrome. The bilateral carpal tunnel
syndrome occurred naturally and was not due to occupational activities. The job description for
Mr. Anderson’s job did not include job demands that involved the degree of repetition or force
expected to cause carpal tunnel syndrome. He noted Mr. Anderson’s increased body mass index
was a significant non-occupational factor for carpal tunnel syndrome. He also opined that Mr.
Anderson’s work as a section production supervisor did not expose him to an increased risk for
the development of carpal tunnel syndrome and found the condition was not related to Mr.
Anderson’s work.

         On December 12, 2016, Bruce Guberman, M.D., performed an independent medical
evaluation. Mr. Anderson told Dr. Guberman that he first noted numbness and tingling in his
hands in 2010 or 2011 and the symptoms progressively worsened. His hand symptoms stabilized
initially after he stopped working but progressed in the two to three months prior to Dr.
Guberman’s evaluation. Mr. Anderson took Motrin for his multiple joint symptoms, including
the carpal tunnel syndrome. Dr. Guberman noted Mr. Anderson continued to have numbness,
tingling, and weakness in both hands. Mr. Anderson told Dr. Guberman that half of his work day
was spent supervising and the other half was spent performing physical labor. His work involved
the use of his hands to lift, carry, push, pull, and use tools. With his previous employers, Mr.
Anderson had worked riding a deck with levers, operating a miner, and as a roof bolter. He had
prior work injuries to his lumbar spine and neck as well as a history of high blood pressure and
black lung disease. Dr. Guberman diagnosed bilateral carpal tunnel syndrome due to the
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cumulative trauma due to work. The work activities that involved frequent and forceful use of
Mr. Anderson’s hands in awkward positions and subjected him to vibration caused the carpal
tunnel syndrome. Dr. Guberman noted Mr. Anderson’s obesity was a predisposing condition to
carpal tunnel syndrome. However, in his opinion Mr. Anderson would not have developed carpal
tunnel syndrome if it were not for his work activities.

        Syam Stoll, M.D., performed an independent medical evaluation on February 1, 2017.
Mr. Anderson told Dr. Stoll that he had bilateral arm pain from his shoulders to his hands, which
increased at night. Mr. Anderson had a history of chronic pain due to osteoarthritis in his neck,
arm, hand, and knees. Dr. Stoll noted Mr. Anderson reported a nine year history of bilateral hand
pain when he was evaluated on January 11, 2016, by Devesh Sharma, M.D., whose medical
records show Mr. Anderson reported constant and worsening pain. The history was significant
for chronic neck pain. Dr. Stoll noted a March 12, 2008, nerve conduction study that showed
significant motor/sensory peripheral neuropathy of the left upper extremity and a diagnosis of
left carpal tunnel syndrome with the possibility of superimposed right carpal tunnel syndrome.
Mr. Anderson had also been diagnosed with cervical degenerative disc disease. Dr. Stoll opined
that there had been an incomplete work-up of the etiology of Mr. Anderson’s bilateral upper
extremity pain. Cervical spondylosis and cervical radiculopathy mimic peripheral nerve
entrapment. As Mr. Anderson had a history of cervical spine problems, his symptoms may be
related to the cervical spine. Additionally, the pain and carpal tunnel syndrome diagrams Mr.
Anderson completed prior to his evaluation did not dermatomally correlate with carpal tunnel
syndrome and was more consistent with cervical radiculopathy. Dr. Stoll also opined that the
diagnoses of bilateral carpal tunnel syndrome and right cubital tunnel syndrome were
questionable due to the poor quality of Dr. Soma’s EMG/NCS testing. Under the assumption that
Mr. Anderson did have bilateral carpal tunnel syndrome, it was Dr. Stoll’s opinion that it was
due to Mr. Anderson’s severe obesity and age and was not related to his occupation as a section
production supervisor.

        The Office of Judges reversed the claims administrator’s decision and held the claim
compensable for bilateral carpal tunnel syndrome on June 15, 2017. It found the medical
opinions of Drs. Somasundaran and Guberman to be more reliable than those of Drs. Martin,
Mukkamala, and Stoll. Dr. Martin relied, in part, on a job description in forming his opinion.
However, the job description was not submitted into evidence so the Office of Judges was unable
to determine if the job description was specific to Mr. Anderson’s position. Additionally, the job
description relied upon by Dr. Stoll was not reliable because it did not accurately reflect Mr.
Anderson’s physical activities at work. The Office of Judges determined that “Dr. Guberman’s
report more fully and accurately considers the specific occupational hazards for the development
of carpal tunnel syndrome to which Mr. Anderson was exposed”. The Board of Review
adopted the findings of fact and conclusions of law of the Office of Judges and affirmed its
Order on October 20, 2017.

       After review, we disagree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. Mr. Anderson was diagnosed with bilateral carpal tunnel
syndrome in 2010, which was at least a year before he started working for Spartan Mining
Company. In 2010, Mr. Anderson stated his hand weakness started six years before and had been
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gradually worsening. That means his bilateral carpal tunnel symptoms started as early as 2004.
The Board of Review was correct in that a preponderance of evidence supports the fact that Mr.
Anderson has bilateral carpal tunnel syndrome. However, Dr. Somasundaran noted when he
performed the EMG/NCS studies that Mr. Anderson had been experiencing the symptoms for
two years. Additionally, Dr. Somasundaran did not associate the bilateral carpal tunnel syndrome
to Mr. Anderson’s work for Spartan Mining Company. Dr. Guberman noted that Mr. Anderson
had been diagnosed with bilateral carpal tunnel syndrome in 2010 or 2011 after using his hands
for many years in the mines. He also noted that Mr. Anderson’s symptoms worsened and
electromyography studies confirmed the bilateral carpal tunnel syndrome diagnosis. Dr.
Guberman opined that the “cause of the claimant’s bilateral carpal tunnel syndrome is the work
activities involving the frequent and at times forceful use of his hands in awkward positions and
at times subjected to vibration”. The Board of Review’s reliance on Drs. Somasundaran and
Guberman’s opinions in regard to the diagnosis of bilateral carpal tunnel syndrome was not
misplaced. However, it erred when it failed to find Mr. Anderson had been diagnosed with
bilateral carpal tunnel syndrome in 2010 and had continued to have the symptoms before, during,
and after his employment with Spartan Mining Company. Mr. Anderson’s diagnosis of bilateral
carpal tunnel syndrome pre-dated his employment with Spartan Mining Company, and therefore,
cannot be causally related to his work activities while in its employ.

       For the foregoing reasons, we find that the decision of the Board of Review is based upon
a material misstatement or mischaracterization of the evidentiary record. Therefore, the decision
of the Board of Review is reversed and remanded with instructions to reinstate the claims
administrator’s May 25, 2016, rejection of the claim.



                                                                       Reversed and Remanded.

ISSUED: May 21, 2018


CONCURRED IN BY:
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker


DISSENTING:
Chief Justice Margaret L. Workman
Justice Robin J. Davis




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