Appeal No. 2050880, Claim No. 2012032128
Denice Minesky by Reginald D. Henry, her attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Summers Nursing and Rehabilitation by Steven
K. Wellman, its attorney, filed a timely response.
appeal arises from the Board of Review's Final Order
dated March 24, 2016, in which the Board affirmed the October
19, 2015, Order of the Workers' Compensation Office of
Judges. In its Order, the Office of Judges affirmed the
claims administrator's November 13, 2014, denial of the
request to add left ulnar neuropathy and a progression or
aggravation of preexisting carpal tunnel syndrome as
compensable conditions. It also affirmed the claims
administrator's December 18, 2014, denial of
authorization for retroactive payments to S.K. Shamma, M.D.
for office visits. The Court has carefully reviewed the
records, written arguments, and appendices contained in the
briefs, and the case is mature for consideration.
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
Minesky, a certified nursing assistant, slipped on ice that
was on a patient's floor on April 8, 2012. She tried to
break her fall with her left arm, but fell to the floor. The
claim was originally held compensable for lumbosacral and
thoracic sprains/strains. Dr. Shamma, Ms. Minesky's
treating physician, diagnosed ulnar neuropathy on August 24,
2012. Ms. Minesky testified by deposition on July 29, 2013,
that she first sought treatment with Dr. Shamma a couple of
days after the accident. Her left arm did not start to hurt
her until she was passing breakfast trays while she was
working light duty after the fall. She noticed a sharp pain
from her elbow to her hand at that time. Ms. Minesky stopped
working in September of 2012.
Shamma submitted a Diagnosis Update form on April 2, 2013,
listing lumbosacral sprain/strain as the primary diagnosis,
thoracic sprain/strain as the secondary diagnosis, pain in
the upper arm and joint as the third diagnosis, and left
ulnar neuropathy as the fourth diagnosis. On May 6, 2013, the
claims administrator denied Ms. Minesky's request to add
pain in the upper arm and joint and left ulnar neuropathy as
Guberman, M.D., performed an independent medical evaluation
on June 28, 2013. He noted Ms. Minesky continued to have
thoracic spine pain, low back pain, and constant numbness and
tingling throughout her entire left hand. He diagnosed acute
and chronic thoracic spine strain, post-traumatic; acute and
chronic lumbosacral strain, post-traumatic; and
post-traumatic pain and numbness throughout the left hand and
arm. He wanted to rule out left ulnar neuropathy and an
aggravation of pre-existing left carpal tunnel syndrome. Dr.
Guberman recommended the claimant undergo electrophysiologic
studies on the left upper extremity in order to make a more
accurate diagnosis regarding the possible neuropathy.
March 24, 2014, the Office of Judges modified the claims
administrator's May 6, 2013, decision by adding left
upper arm pain as a compensable condition. It denied the
request to add left ulnar neuropathy as a compensable
condition pending proper diagnostic testing of Ms.
Minesky's left arm. The Office of Judges then remanded
the claim to the claims administrator to have Ms. Minesky
undergo nerve conduction studies as recommended by Dr.
Guberman and Dr. Shamma.
Othman, M.D., performed the NCV and EMG studies on June 25,
2014. The studies revealed significant left ulnar nerve
compression across the elbow as well as bilateral carpal
tunnel syndrome. Jerry W. Scott, M.D, performed an
independent medical evaluation on January 14, 2014. At that
time, he opined that left ulnar neuropathy should not be
added as a compensable condition due to Ms. Minesky's
pre-existing carpal tunnel syndrome. He also found Ms.
Minesky's pain complaints atypical for ulnar neuropathy
as she reported pain in the anterior aspect of her forearm,
particularly the antecubital region. After reviewing the
results of the NCV and EMG studies, Dr. Scott issued an
addendum to his report on September 26, 2014. He found Ms.
Minesky's pain complaints in regard to the left ulnar
neuropathy to be atypical of what is normally seen. He did
not believe the left ulnar neuropathy was causally related to
the April 8, 2012, work injury. In making that determination,
he reviewed the mechanism of injury, the lack of consistent
documentation of the left upper extremity complaints after
the injury, the positive electrodiagnostic study, and the
findings of his examination. He also found Ms. Minesky did
not have a post-traumatic worsening of her carpal tunnel
Mukkamala, M.D., performed an independent medical evaluation
on March 18, 2015. He noted a chief complaint of pain in the
left arm, back pain, and numbness in the left arm. Dr.
Mukkamala diagnosed thoracic sprain and lumbosacral sprain.
He also noted the claim had been accepted compensable for
joint pain in the upper extremity. In Dr. Mukkamala's
opinion, Ms. Minesky showed no evidence of ulnar neuropathy,
and if it ever was present, it was not causally related to
the fall. He pointed out that Ms. Minesky says she broke her
fall with her left arm but she failed to mention that on her
first report of injury or when she went to see Dr. Shamma.
Additionally, Ms. Minesky initially had pain and swelling in
her right arm not the left arm. Dr. Mukkamala went on to
opine that there was no objective, credible medical evidence
to indicate an injury to the left elbow. The diagnosis of
ulnar neuropathy was questionable at best. He also found Ms.
Minesky's statements to be inconsistent.
October 19, 2015, Order, the Office of Judges determined that
Drs. Scott and Mukkamala both opined that Ms. Minesky did not
have carpal tunnel syndrome as a result of the injury, nor
was her pre-existing carpal tunnel syndrome aggravated by the
injury. The Office of Judges determined Ms. Minesky had not
introduced any medical evidence that the compensable injury
caused an aggravation and/or progression of the pre-existing
carpal tunnel syndrome. However, the employer had presented
medical evidence opining the work injury did not cause carpal
tunnel syndrome or cause an aggravation and/or progression of
the pre-existing carpal tunnel syndrome. Therefore, the
Office of Judges found Ms. Minesky had not proven by a
preponderance of the evidence that the work injury caused an
aggravation and/or progression of the carpal tunnel syndrome.
Office of Judges then turned to the work-relatedness of the
left ulnar neuropathy. It determined that neither Dr. Shamma
nor Dr. Guberman specifically gave an opinion that the
compensable injury caused the left ulnar neuropathy. The
Office of Judges declined to speculate on causation and found
the left ulnar neuropathy was not a compensable condition as
Ms. Minesky failed to prove otherwise.
the Office of Judges addressed the issue of payment for
office visits with Dr. Shamma. Ms. Minesky requested payment
for office visits for July 7, 2014; August 6, 2014; September
9, 2014; and October 9, 2014. The treatment note from July 7,
2014 was not submitted into evidence, and therefore, could
not be considered. The Office of Judges determined the
treatment notes dated August 6, 2014; September 9, 2014; and
October 9, 2014, revealed Ms. Minesky was being treated for
nerve damage and complaints associated with carpal tunnel
syndrome. As the treatment provided on those days was not for
the compensable injury, payment for the office visits was
Board of Review adopted the findings of fact and conclusions
of law of the Office of Judges and affirmed its Order on
March 24, 2016. After review, we agree with the Board of
Review. Ms. Minesky submitted a great deal of medical
evidence in support of her claim. However, none of the
evidence submitted proved that the left ulnar neuropathy
developed as a result of the compensable injury. Drs. Scott
and Mukkamala agreed that the ulnar neuropathy was not due to
the work accident. Their opinion is reinforced by the fact
that Ms. Minesky stopped working in September of 2012 but
reported no decrease in symptoms. ...