                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
RAYMOND HARTLEY,                                                                    May 5, 2017
                                                                              RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                  SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

vs.)   No. 16-0579	 (BOR Appeal No. 2051003)
                   (Claim No. 2014019903)

EASTERN ASSOCIATED COAL, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Raymond Hartley, by Reginald Henry, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Eastern Associated Coal, LLC, by
Henry Bowen, its attorney, filed a timely response.

       The issue presented in the instant appeal is Mr. Hartley’s request for an increased
permanent partial disability award. On December 8, 2014, the claims administrator granted Mr.
Hartley a 6% permanent partial disability award for bilateral carpal tunnel syndrome. The Office
of Judges affirmed the December 8, 2014, claims administrator’s decision in its Order dated
December 9, 2015. This appeal arises from the Board of Review’s Final Order dated May 20,
2016, in which the Board affirmed the December 9, 2015, Order of the Workers’ Compensation
Office of Judges. 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. Hartley filed an application for workers’ compensation benefits in which he indicated
that he developed bilateral carpal tunnel syndrome in the course of and resulting from his
employment, and his claim was held compensable for bilateral carpal tunnel syndrome on March
24, 2014. Subsequently, orthopedic surgeon S. Brett Whitfield, M.D., performed bilateral carpal
tunnel releases. Following the surgical procedures, Dr. Whitfield noted that Mr. Hartley’s
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symptoms associated with carpal tunnel syndrome improved. On September 18, 2014, during the
course of a routine examination following the completion of the surgical procedures, Dr.
Whitfield noted that Mr. Hartley began experiencing paresthesia in the right hand with associated
elbow pain. Dr. Whitfield diagnosed clinically severe right cubital tunnel syndrome and
recommended that Mr. Hartley undergo an electromyogram.1

       On November 26, 2014, Saghir Mir, M.D., performed an independent medical evaluation
for the purpose of determining the amount of permanent impairment arising from the
compensable diagnosis of bilateral carpal tunnel syndrome. Dr. Mir also noted that Mr. Hartley
is experiencing symptoms associated with ulnar radiculopathy in the right arm. He then applied
the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed.
1993) and West Virginia Code of State Rules § 85-20-64.5 (2006) and opined that Mr. Hartley
sustained 3% whole person impairment arising from each wrist as a result of bilateral carpal
tunnel syndrome, for a total of 6% whole person impairment. The claims administrator granted
Mr. Hartley a 6% permanent partial disability award based upon Dr. Mir’s independent medical
evaluation on December 8, 2014.

        Additionally, Bruce Guberman, M.D., performed an independent medical evaluation on
April 7, 2015. Dr. Guberman opined that Mr. Hartley currently exhibits signs of severe carpal
tunnel syndrome in the right wrist. He utilized the American Medical Association’s Guides to the
Evaluation of Permanent Impairment and opined that Mr. Hartley sustained 11% whole person
impairment as a result of carpal tunnel syndrome in the right wrist and 3% whole person
impairment as a result of carpal tunnel syndrome in the left wrist, for a total of 14% whole
person impairment.2

        In its Order affirming the December 8, 2014, claims administrator’s decision, the Office
of Judges held that Mr. Hartley failed to demonstrate that he is entitled to an additional
permanent partial disability award above the 6% award granted by the claims administrator for
bilateral carpal tunnel syndrome. The Board of Review affirmed the reasoning and conclusions
of the Office of Judges in its decision dated May 20, 2016. On appeal, Mr. Hartley asserts that
the evidence of record demonstrates that he is entitled to an additional permanent partial
disability award.3

        The Office of Judges noted that both Dr. Mir and Dr. Guberman opined that Mr. Hartley
sustained 3% whole person impairment as a result of carpal tunnel syndrome in the left wrist
and, therefore, determined that the degree of permanent impairment arising from Mr. Hartley’s
carpal tunnel syndrome in the left wrist is not in dispute. Regarding the degree of permanent
impairment arising from carpal tunnel syndrome in Mr. Hartley’s right wrist, the Office of

1
  Cubital tunnel syndrome is not a compensable component of Mr. Hartley’s claim.

2
  Dr. Guberman did not apply West Virginia Code of State Rules § 85-20-64.5 when arriving at

his impairment recommendation.

3
  Eastern Associated Coal, LLC, asserts that the reasoning set forth in our recent decision in Gill

v. City of Charleston, 236 W.Va. 737, 783 S.E.2d 857 (2016) is applicable to the instant appeal.
However, we find that our reasoning set forth in Gill does not apply to the case at bar.
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Judges found that Dr. Guberman’s recommendation of 11% whole person impairment is not
consistent with Mr. Hartley’s medical record. Specifically, the Office of Judges found that
neither Dr. Whitfield, Mr. Hartley’s treating physician, nor Dr. Mir documented evidence of
clinically significant right-sided carpal tunnel syndrome following the bilateral carpal tunnel
release procedures. The Office of Judges further found that both Dr. Whitfield and Dr. Mir
attributed the post-operative symptoms present in Mr. Hartley’s right hand to non-compensable
cubital tunnel syndrome. In that regard, the Office of Judges found that only Dr. Guberman
determined that Mr. Hartley continues to experience symptoms of significant right-sided carpal
tunnel syndrome. Moreover, the Office of Judges found that Dr. Guberman’s conclusions are
unreliable because he failed to apply West Virginia Code of State Rules § 85-20-64.5, which
limits the maximum degree of permanent impairment allowable in carpal tunnel syndrome
claims. Finally, the Office of Judges concluded that Dr. Mir’s report represents the most accurate
and reliable assessment of Mr. Hartley’s degree of permanent impairment arising from bilateral
carpal tunnel syndrome because Dr. Mir’s report is consistent with the entirely of Mr. Hartley’s
medical record, and because Dr. Mir properly applied the American Medical Association’s
Guides to the Evaluation of Permanent Impairment and West Virginia Code of State Rules § 85­
20-64.5. We agree with the reasoning and conclusions of the Office of Judges, as affirmed by 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: May 5, 2017

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




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