                                 STATE OF WEST VIRGINIA


                             SUPREME COURT OF APPEALS
                                                                                              FILED
MAXUM PETROLEUM OPERATING COMPANY,                                                            July 6, 2017
                                                                                        RORY L. PERRY II, CLERK
Employer Below, Petitioner                                                            SUPREME COURT OF APPEALS
                                                                                          OF WEST VIRGINIA


vs.)    No. 16-0741 (BOR Appeal No. 2051075)
                    (Claim No. 2012031045)

CLINE WAUGH,

Claimant Below, Respondent



                                 MEMORANDUM DECISION
       Petitioner Maxum Petroleum Operating Company1, by Jeffrey M. Carder and Jeffrey B.
Brannon, its attorneys, appeals the decision of the West Virginia Workers’ Compensation Board
of Review.

        The issue on appeal is the percentage of permanent partial disability Mr. Waugh has due
to his compensable injury. On October 10, 2013, the claims administrator granted an award of
0% permanent partial disability. The Office of Judges affirmed the decision in its January 5,
2016, Order. The Order was reversed and vacated by the Board of Review on June 30, 2016. The
Board remanded to the claims administrator to schedule another independent medical evaluation
to assess impairment. 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 an erroneous
conclusion of law. 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.



1
 The name of the employer in the documents provided to us differs from the name of the employer in the documents
provided to the Board of Review and Office of Judges.

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        Mr. Waugh, an over-the-road truck driver, alleged he developed carpal tunnel syndrome
as the result of his work activities on July 2, 2009. Mr. Waugh stopped working in July of 2008,
due to a knee injury. The first time he sought medical treatment for his upper extremities was in
July of 2009. The claims administrator held the claim compensable.2

       On September 30, 2013, Paul Bachwitt, M.D., performed an independent medical
evaluation. Mr. Waugh stated he developed pain and numbness in both hands due to his work as
an over-the-road truck driver for approximately twenty years. His job duties included inspecting
and loading equipment, walking, using both hands to open valves, pushing and pulling hoses,
and completing paperwork. He was first evaluated for complaints related to his hands on July 6,
2009. At that time he had not been working for eight or nine months due to low back and left
knee pain. An EMG and NCV testing performed on both hands on September 4, 2009, revealed
moderate carpal tunnel syndrome. In Dr. Bachwitt’s opinion, it would have been virtually
impossible for Mr. Waugh to have developed carpal tunnel syndrome due to his work. In his
opinion, Mr. Waugh’s complaints were due to his morbid obesity, depression, chronic low back
pain, hypertension, cardiac arrhythmia, and hyperlipidemia. Dr. Bachwitt assessed 0%
impairment. On September 10, 2013, the claims administrator awarded Mr. Waugh 0%
permanent partial disability based on Dr. Bachwitt’s report.

        Bruce Guberman, M.D., performed an independent medical evaluation on October 14,
2014. Mr. Waugh provided a history of numbness, tingling, and pain in his hands since 2005 or
2006. At the time of the evaluation, Mr. Waugh noted intermittent numbness and tingling in both
hands off and on throughout the day and weakness. While working as a truck driver, he had to
use his hands to steer, shift gears, unload trucks, hook up hoses, and use large wrenches. Dr.
Guberman diagnosed bilateral carpal tunnel syndrome and assessed 11% impairment for each
upper extremity. Dr. Guberman attributed 2% of 11% impairment to non-occupational factors.
Dr. Guberman then combined the 9% impairment for each upper extremity due to occupational
factors for a total of 17% whole person impairment.

         On July 21, 2015, Prasadarao Mukkamala, M.D., performed an independent medical
evaluation. At that time, Mr. Waugh complained of cramps in both hands and sometimes
numbness and tingling in both upper extremities. He reported having had the symptoms in both
arms for five or six years. Dr. Mukkamala diagnosed carpal tunnel syndrome and assessed 7%
impairment for each upper extremity, which combined for 14% whole person impairment. In Dr.
Mukkamala’s opinion, the carpal tunnel syndrome was not related to the work activities because
at the time Mr. Waugh was diagnosed with carpal tunnel syndrome, he had not been working for
one year, and Mr. Waugh stated his symptoms got worse after he stopped working. If the carpal
tunnel syndrome had been work related, the symptoms would have subsided after he quit
working. Additionally, Mr. Waugh had very significant non-occupational risk factors for the
development of carpal tunnel syndrome, including being extremely obese. Dr. Mukkamala did
not agree with the impairment rating assessed by Dr. Guberman due to the apportionment he
used.


2
    The compensability decision of the claims administrator is not in evidence.
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        Marsha Bailey, M.D., performed an independent medical evaluation on August 18, 2015.
At that time, Mr. Waugh’s most significant complaint was that he dropped items with his right
hand once or twice a day. He also complained of numbness and pain in both hands, as well as
having night awakenings due to the pain and numbness. Dr. Bailey diagnosed carpal tunnel
syndrome. In her opinion, Mr. Waugh’s carpal tunnel syndrome was attributable to his long
standing morbid obesity. Mr. Waugh did not have occupational responsibilities that were highly
repetitious, highly forceful, or extremely awkward that would place him at risk for carpal tunnel
syndrome. Dr. Bailey assessed 10% impairment for both upper extremities. However, using West
Virginia Code of State Rules §85-20 (2006), she decreased the impairment for each upper
extremity to 6% for a combined total of 12% impairment. She apportioned the entire 12%
impairment rating to Mr. Waugh’s non-occupational risk factors including his morbid obesity. In
her opinion, Dr. Guberman’s assessment of impairment is incorrect because he failed to use West
Virginia Code of State Rules §85-20-64 in making his final assessment of impairment and
because he failed to apportion the impairment properly.

        The Office of Judges affirmed the claims administrator’s October 10, 2013, award of 0%
permanent partial disability on January 5, 2016. The Office of Judges noted that carpal tunnel
syndrome impairment is determined by applying the criteria in the American Medical
Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993) and then
adjusting that impairment to the ranges found in West Virginia Code of State Rules §85-20. The
Office of Judges also found that Mr. Waugh’s significant obesity could not be ignored.
Additionally, his symptoms did not appear until 2009, approximately one year after he stopped
working. Those factors did not support a disability due to occupational reasons.

        The Office of Judges found that the reports of Drs. Bachwitt, Mukkamala, and Bailey
were much more credible in their impairment assessments than that of Dr. Guberman. Drs.
Bailey and Mukkamala attributed the impairment to non-occupational factors. Dr. Guberman
only apportioned 2% to the non-occupational factors. The Office of Judges found this to be
unreliable, as Mr. Waugh had weighed in at over 500 pounds at one point in time. The Office of
Judges concluded that no permanent partial disability for the carpal tunnel syndrome could be
attributed to Mr. Waugh’s employment.

        The Board of Review adopted the findings of fact of the Office of Judges, but found its
analysis and conclusions were affected by an error of law and were clearly wrong in view of the
entire evidentiary record. The Board of Review noted the issue at hand was the amount of
permanent impairment Mr. Waugh suffered as a result of his compensable diagnosis of bilateral
carpal tunnel syndrome. It found that none of the medical reports accurately represented the
amount of whole person impairment arising from the compensable bilateral carpal tunnel
syndrome. The Board of Review found Dr. Bachwitt’ s opinion unreliable as he did not believe
Mr. Waugh had carpal tunnel syndrome. It found Dr. Guberman’s opinion unreliable as he did
not apply West Virginia Code of State Rules §85-20-64.5 in assessing impairment. It found Drs.
Mukkamala and Bailey’s opinions inaccurate as they found Mr. Waugh had impairment, but
apportioned it entirely to non-occupational risk factors because they did not believe the carpal
tunnel syndrome was causally related to his occupational activities. The Board of Review then
noted that permanent partial disability awards are to be based solely on the basis of the
                                               3
physician’s impairment evaluation and that portions of reports from different physicians could
not be combined to create impairment. Based on that reasoning, the Board of Review reversed
and vacated the Office of Judges, Order. It then remanded the claim to the claims administrator
for a referral to an additional independent medical evaluation and the entry of a new protestable
decision regarding Mr. Waugh’s permanent partial disability based on that independent medical
evaluation.

        After review, we disagree with the Board of Review. Mr. Waugh has undergone at least
four independent medical evaluations, as shown by the evidentiary record. The claim had been
held compensable for bilateral carpal tunnel syndrome prior to these evaluations. Of the four
physicians assessing impairment, Dr. Bailey was the only physician who assessed Mr. Waugh’s
impairment according to the AMA Guides, utilized West Virginia Code of State Rules §85-20 to
limit the impairment, and then apportioned the impairment between occupational and non-
occupational factors. She determined that the non-occupational factors outweighed the
occupational factors, and apportioned the entire impairment to the non-occupational factors. The
Board of Review’s assertion that Dr. Bailey “apportioned all of the impairment to non-
occupational risk factors because they are of the opinion that the claimant’s carpal tunnel
syndrome is not causally related to his occupational activities”, is incorrect. Dr. Bailey’s opinion
was based on reliable evidence and the weighing of factors between the occupational and non-
occupational factors. She determined that the non-occupational factors contributed more than the
occupational factors. That determination does not seem incorrect as Mr. Waugh has continued to
experience symptoms even though he has not worked for nine years. The Office of Judges’
reliance on Dr. Bailey’s opinion regarding impairment was not misplaced.

       For the foregoing reasons, we find that the decision of the Board of Review is based upon
and erroneous conclusion of law. Therefore, the decision of the Board of Review is reversed and
remanded with instructions to reinstate the Office of Judges January 5, 2016, Order.



                                                                          Reversed and remanded.
ISSUED: July 6, 2017

CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin J. Davis
Justice Elizabeth D. Walker


DISSENTING:
Justice Margaret L. Workman
Justice Menis E. Ketchum


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