UNITED PARCEL SERVICE, INC. Employer Below, Petitioner
GREG BARKER, Claimant Below, Respondent
Appeal No. 2051843) (Claim No. 2016005970)
United Parcel Service, Inc., by Jeffrey B. Brannon, its
attorney, appeals the decision of the West Virginia
Workers' Compensation Board of Review. No response was
filed on behalf of Greg Barker.
issues on appeal are compensability of additional components
of the claim and medical treatment. On April 11, 2016, the
claims administrator denied authorization for a transposition
of the right ulnar nerve and the addition of cubital tunnel
syndrome as a compensable component of the claim. The Office
of Judges affirmed the claims administrator in its January
31, 2017, Order. The Order was reversed by the Board of
Review on June 8, 2017. 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
Barker worked as a delivery driver for United Parcel Service,
Inc., for thirty-one years. During the course of his
employment, he sustained bilateral carpal tunnel syndrome and
a left elbow neuropathy, or cubital tunnel syndrome. Mr.
Barker experienced symptoms in his hands and arms beginning
in 1998, and he had a compensable injury date of June 25,
1998. Mr. Barker underwent at least three carpal tunnel
release surgeries, two on the left and one on the right, as
well as a transposition of the ulnar nerve on the left. He
was also awarded permanent partial disability benefits.
appears that at some point, Mr. Barker submitted a claim
application regarding a new injury to his upper
extremities. On December 17, 2015, Carl McComas,
M.D., performed electromyography and nerve conduction
studies, which were consistent with moderate to severe
bilateral carpal tunnel syndrome, left worse than right, and
bilateral ulnar neuropathies which were moderate on the right
and severe on the left. On February 10, 2016, Dr. Ignatiadis
submitted a request to the claims administrator to add right
cubital tunnel syndrome as a compensable condition and for
authorization to perform a transposition of the right ulnar
Fadel, M.D., performed a medical records review as part of a
utilization review on March 16, 2016. He noted Mr. Barker
reported an onset of pain in his hands in 2003 that he
attributed to years of chronic, repetitive use on the job.
Mr. Barker had been diagnosed with bilateral carpal tunnel
syndrome and left cubital tunnel syndrome. Dr. Fadel noted
his opinion was sought regarding the reasonableness and
necessity of bilateral carpal tunnel releases and right
cubital tunnel release. In Dr. Fadel's opinion, the main
issue was the causation of the compensable conditions. He
opined that because the left carpal tunnel syndrome had
already been accepted as compensable and there was an absence
of other risk factors, the right carpal tunnel syndrome
should also be held compensable. He noted that cubital tunnel
syndrome is generally related to direct trauma to the cubital
tunnel or circumstances in which patients experience
prolonged periods of direct pressure to the cubital tunnel.
Dr. Fadel recommended approval of the requested surgery for
the recurrent severe carpal tunnel syndrome on the left and
the acceptance of right carpal tunnel syndrome as a
compensable condition. He was not provided a job description
and was unable to render an opinion regarding the causation
of the cubital tunnel syndrome without one. But he
recommended a neurology consultation if there were
disagreeing conclusions regarding the causation of the
cubital tunnel syndrome. He recommended denial of the alleged
cubital tunnel syndrome pending the neurology consultation.
The bilateral carpal tunnel syndrome was accepted as
compensable, and Mr. Barker underwent bilateral carpal tunnel
Fadel issued an addendum to his report on March 20, 2016,
after reviewing Mr. Barker's job description. Dr. Fadel
opined that he did not find any of the required job duties
compatible for producing direct or chronic low grade trauma
to the cubital tunnel. Based on his report, the claims
administrator denied Dr. Ignatiadis's request to add
cubital tunnel syndrome as a compensable condition and his
request for authorization to perform a transposition of the
right ulnar nerve. On May 15, 2016, Mr. Barker stated that in
his opinion there were no legitimate grounds for the denial
of the addition of right ulnar nerve as a compensable
condition or for the denial of the transposition of the right
ulnar nerve. It was illogical at best and criminal at worst
for the claims administrator to deny the compensability of
the right ulnar nerve when the left ulnar nerve was deemed
compensable in 2003.
November 25, 2016, Mr. Barker wrote a letter to the Office of
Judges detailing his job duties and his objection to the use
of the reports of Prasadarao Mukkamala, M.D., and Dr. Fadel
in deciding his case. He did not understand how his left
cubital tunnel syndrome was considered work-related in 2001,
but his right cubital tunnel syndrome was not considered
work-related in 2016. He had surgery on his left elbow first
because it was worse. His right elbow has now degenerated to
a point where he needs the surgery. The need for the surgery
is due to his work.
Office of Judges affirmed the claims administrator's
denial of the request to add right cubital tunnel syndrome
and denial of the request for authorization to perform a
transposition of the right ulnar nerve in its January 31,
2017, Order. It noted the request made by Dr. Ignatiadis for
authorization of the right cubital tunnel syndrome and for
transposition of the right ulnar nerve is not part of the
record. According to the claims administrator's denial,
the request was made on February 10, 2016. Dr. Fadel reviewed
Mr. Barker's job description and opined that the job
requirements were not compatible with producing direct or
chronic trauma to the cubital tunnel. Dr. Fadel opined that
the relationship between Mr. Barker's cubital tunnel
syndrome and his work as a delivery driver was speculative at
best. Additionally, Dr. Mukkamala diagnosed bilateral carpal
tunnel syndrome and opined that Mr. Barker did not require
any additional treatment for his claim. The report of Dr.
McComas, the treating physician, showed moderate ulnar
neuropathy on the left.
Office of Judges found that even though the circumstances
that led to Mr. Barker's left cubital tunnel syndrome
being held compensable could have caused his right cubital
tunnel syndrome, the nerve conduction studies conducted by
Dr. McComas failed to demonstrate a causal connection between
right cubital tunnel syndrome and Mr. Barker's
employment. The Office of Judges noted that in addition to
the record not including a copy of the claims
administrator's decision that was being protested, the
record also did not include any records or reports from Dr.
Ignatiadis or the first report of injury. Therefore, Mr.
Barker failed to meet his burden of proof. As such, the
claims administrator was correct to deny the addition of
right ulnar neuropathy as a compensable condition and correct
to deny authorization for the right ulnar transposition.
Board of Review reversed the Office of Judges' Order on
June 8, 2017. It found that the February 10, 2016, request
from Dr. Ignatiadis for authorization of the transposition of
the right ulnar nerve and the claim application were needed
in order for a full and complete development of the facts of
the claim. Therefore, it remanded the claim to the Office of
Judges with instructions to issue a new time frame Order to
allow for the full and complete development of the evidence.
The Board of Review also instructed Mr. Barker to submit a
copy of the claim application and a copy of Dr.
Ignatiadis's February 10, 2016, request into evidence.
The Office of Judges was to then consider any new evidence
along with the previously considered evidence and affirm,
reverse, or modify its January 31, 2017, Order.
review, we agree with the Board of Review. The claim
application and the written request of Dr. Ignatiadis
regarding the authorization of the surgery would assist the
Office of Judges in making a fully informed decision
regarding the compensability of the right cubital tunnel
syndrome as well as the reasonableness and necessity of the
proposed medical treatment. Neither party is prejudiced by
the decision, as both parties will be afforded an opportunity
to submit additional evidence.
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 ...