Appeal No. 2051236, Claim No. 2015016271
Benny Smith, by Anne L. Wandling, his attorney, appeals the
decision of the West Virginia Workers' Compensation Board
of Review. Alpha Natural Resources, by T. Jonathan Cook, its
attorney, filed a timely response.
issue on appeal is whether Mr. Smith developed carpal tunnel
syndrome in the course of and resulting from his employment.
The claims administrator denied Mr. Smith's application
for carpal tunnel syndrome on March 27, 2015. The Office of
Judges affirmed the decision on March 31, 2016. The Board of
Review affirmed the Order of the Office of Judges on August
26, 2016. 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
Smith, a former employee of Alpha Natural Resources, retired
on September 18, 2012. On May 24, 2013, Mr. Smith underwent a
nerve conduction study performed by Milton Calima, M.D., a
neurosurgeon. Dr. Calima noted that Mr. Smith was a
fifty-eight year old right handed male who was five feet ten
inches tall and weighed 179 pounds. He noted that Mr. Smith
suffered from gout, arthritis, and gastroesophageal reflux
disease. Mr. Smith complained of bilateral hand numbness,
burning, and tingling sensations for twelve months. He felt
that it was getting worse the past few days. He reported no
precipitating event. He just gradually began to notice
symptoms and now they were more persistent, especially at
night time. He also complained of neck pain without
radiation. There was electrophysiological evidence of
bilateral median nerve demyelinating neuropathy across the
carpal tunnel involving the sensory fibers only and no
denervation potentials in the left abductor pollicis brevis
muscle, which was consistent with mild bilateral carpal
tunnel syndrome. There was also evidence of ulnar neuropathy
across the left elbow consistent with left cubital tunnel
syndrome and left radial neuropathy in the wrist. There was
no evidence of left cervical radiculopathy.
3, 2013, treatment record from Hilltop Primary Care showed
that Mr. Smith was seen for his neck and back. After
examining Mr. Smith, the doctor listed diagnoses of
osteoarthrosis, unspecified whether generalized or localized,
involving unspecified site; esophageal reflux; diaphragmatic
hernia without mention of obstruction; gangrene; gout;
degeneration of lumbar or lumbosacral intervertebral disc;
intervertebral disc disorders; and cervicalgia. He
recommended a low fat/low cholesterol diet, exercise as
tolerated, bilateral wrist splints, Motrin for pain, heat to
the back and neck, and follow up in one month. On April 25,
2014, Mr. Smith returned to Hilltop Primary Care. On
examination there was bilateral knee pain and tenderness
along joint lines with antalgic gait. He still had numbness
and discomfort in his bilateral hands with positive carpal
tunnel. The physician recommended a low potassium diet,
continue medication, heat to knees, bilateral wrist splints
at night, and return in two months.
November 12, 2014, Mr. Smith completed a report of injury
alleging injury to his arms and hands due to his job as a
foreman/equipment operator for the employer. His date of last
exposure was listed as November 18, 2013. Mr. Hatfield,
APRN, signed the physician's section of the report. Mr.
Smith returned to Hilltop Primary Care on November 18, 2014,
and complained of bilateral knee pain as well and numbness
and discomfort in both of his hands. On December 16, 2014,
another report of injury was completed by Mr. Smith alleging
an injury to his back, arms, hands, and knees due to the
repetitive stress of equipment operation and driving. Mr.
Hatfield completed the physician's portion listing
cumulative trauma; repetitive motion occupational injury; and
occupational disease to his back, arms, hands, bilateral
knees, and neck.
handwritten questionnaire completed by Mr. Smith on January
2, 2015, listed his work history as equipment operator and
mechanic from 1976 through 2012 working for various
companies. He does not hunt, sew, knit, craft, perform lawn
care, work on motorcycles, play computer games/work, do wood
working, or other fine motor activities. He does not have
diabetes, thyroid disease, or high blood pressure. On
February 9, 2015, Mr. Smith returned to Hilltop Primary Care
with complaints of numbness in his bilateral hands with a
long term history of carpal tunnel syndrome and cervicalgia.
He reported that it interferes with his ability to sleep. On
examination he had decreased sensation in his fingertips on
both hands and still had numbness and discomfort in both
hands with positive carpal tunnel signal. The doctor
diagnosed carpal tunnel syndrome and recommended he continue
to pursue carpal tunnel syndrome surgery and wear wrist
splints at night.
March 13, 2015, Paul Bachwitt, M.D., completed a report at
the request of the claims administrator. Dr. Bachwitt was
asked to issue an opinion on what, if any, injury should be
covered by workers' compensation. He noted that Mr. Smith
complains of neck and back pain, numbness in his arms and
hands, and pain in both knees. After examination, he
diagnosed degenerative changes in the cervical and lumbar
spine compatible with age and a right knee sprain. X-rays
taken in the office revealed no evidence of arthritic changes
in either knee. Dr. Bachwitt saw no evidence of carpal tunnel
syndrome and opined that Mr. Smith did not suffer from carpal
tunnel syndrome. The claims administrator rejected Mr.
Smith's claim for carpal tunnel syndrome on March 27,
12, 2015, Mr. Smith was deposed. He testified that he first
noticed carpal tunnel syndrome symptoms in early 2011. He
felt some numbness prior to that when he was an equipment
operator. He first sought treatment at Hilltop Primary Clinic
with Dr. Hatfield, who sent him to Pikeville Medical. He saw
Dr. Calima and underwent a nerve conduction study. He was
told that he had carpal tunnel syndrome. When he was working
he ran heavy equipment including dozers, rock trucks,
graders, loaders, and construction type equipment on a
surface mine job. He operated a road grader as well. He noted
that he had to use both hands to drive, with one guiding or
steering, and the other putting it in motion. He used his
right hand to steer and the left for the operation. His hands
got worse when he switched jobs from heavy equipment operator
to mine foreman. He was driving a pickup for fifteen hours a
day as a foreman and doing paperwork. He testified that he
has never had any kind of broken bones in his wrist or hands.
Bachwitt testified in a deposition on July 30, 2015, that
that he was made aware of Mr. Smith's nerve conduction
study that showed mild bilateral carpal tunnel syndrome. He
admitted there was evidence of bilateral median nerve
immobilization across the carpal tunnel, which is consistent
with mild bilateral carpal tunnel syndrome. He stated that a
nerve conduction study is a very helpful test but it is not
always correct. He opined that Dr. Calima was incorrect when
he made a carpal tunnel syndrome diagnosis. He explained that
the Tinel's and Phalen's tests taken with his
examination and expertise showed no carpal tunnel syndrome.
He stated that Mr. Smith's symptoms and the tests did not
follow a pattern compatible with carpal tunnel syndrome. He
further opined that his testing did not come close to showing
carpal tunnel syndrome. He also stated that the two-point
discrimination of each finger is completely normal.
September 1, 2015, Prasadarao Mukkamala, M.D., examined Mr.
Smith and offered an opinion as to whether his carpal tunnel
syndrome was work-related. Dr. Mukkamala stated that Mr.
Smith's symptoms were not very typical of carpal tunnel
syndrome, as Mr. Smith complained of more numbness in the
fifth digit compared to the second and third digit in both
hands. Dr. Mukkamala stated that these symptoms were
suggestive of ulnar neuropathy. He stated the
electrodiagnostic test results were not very impressive to
diagnose carpal tunnel syndrome, as the test was marginal at
best. It was questionable whether Mr. Smith has carpal tunnel
syndrome, and Dr. Mukkamala opined that even if he does
suffer from carpal tunnel syndrome, it was not caused by his
occupational activities. Dr. Mukkamala noted that Mr. Smith
stopped working when the mine closed and never missed work
due to his hand symptoms. Dr. Mukkamala also noted in his
report that since Mr. Smith stopped working, his symptoms
have increased. Dr. Mukkamala concluded that if his work
activities caused the carpal tunnel syndrome, then ceasing
work should have improved his symptoms rather than increasing
them. Dr. Mukkamala further observed that during Mr.
Smith's last four years at Alpha Natural Resources he was
performing predominantly paperwork and some driving not
expected to require the force to cause carpal tunnel
Guberman issued a report on December 1, 2015, regarding Mr.
Smith's possible diagnosis of carpal tunnel syndrome.
After a record review and examination, Dr. Guberman's
impression was bilateral carpal tunnel syndrome due to
cumulative trauma at work. It was his opinion that Mr.
Smith's work activities were the cause of his bilateral
carpal tunnel syndrome. He noted that there are no other
contributing factors and no history of diabetes, thyroid
disease, or obesity.
Office of Judges concluded that Mr. Smith did not develop
carpal tunnel syndrome in the course of and as a result of
his employment in a decision dated March 31, 2016. The Office
of Judges noted that it was not clear from the record whether
Mr. Smith suffers from carpal tunnel syndrome. Despite a
nerve conduction study that would indicate carpal tunnel
syndrome, both Drs. Bachwitt and Mukkamala found no clinical
evidence of carpal tunnel syndrome. The Office of Judges
found that the most persuasive evidence was that Mr.
Smith's symptoms did not interfere with his work and
increased when he was no longer working. The Office of Judges
noted that Mr. Smith ceased working on September 18, 2012,
and in his May 24, 2013, report, Dr. Calima noted that Mr.
Smith had complaints of bilateral hand numbness, burning, and
tingling sensations for twelve months, worsening over the
past few days. Although Mr. Smith was treated at Hilltop
Primary Care on multiple occasions commencing at least on
June 3, 2013, the Office of Judges found that there was no
mention of carpal tunnel symptoms until ...