Appeal No. 2052824) (Claim No. 2016030845)
Diana Kitchen, by Anne L. Wandling, her attorney, appeals the
decision of the West Virginia Workers' Compensation Board
of Review. Mingo County Board of Education, by Jillian L.
Moore, its attorney, filed a timely response.
issue on appeal is compensability. The claims administrator
rejected the claim on January 30, 2017. The Office of Judges
affirmed the decision in its April 11, 2018, Order. The Order
was affirmed by the Board of Review on September 26, 2018.
Court has carefully reviewed the records, written arguments,
and appendices contained in the briefs, and the case is
mature for consideration. 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
Kitchen, a teacher, alleges that she developed carpal tunnel
syndrome in the course of and resulting from her employment.
An EMG taken on July 3, 2014, revealed carpal tunnel syndrome
and ulnar nerve damage. The Employees' and
Physicians' Report of Occupational Disease was completed
on July 26, 2014, and states that Ms. Kitchen was a teacher
for twenty-six years. She stated that her job required her to
repeatedly lift, tug, and pull on objects. She had to type on
a computer, make lesson plans, and respond to emails. She
also had to staple papers and lift desks, books, copiers, and
computers. Additionally, she logged in students for lunch.
She stated that her hands and arms go numb and she drops
objects. Abnu Nadar, M.D., completed the physician's
section and diagnosed bilateral carpal and cubital tunnel
August 20, 2014, treatment note by Dr. Nadar indicates Ms.
Kitchen reported pain and numbness in both hands. She stated
that her job required the repetitive use of her hands. An EMG
showed bilateral carpal tunnel syndrome. Dr. Nadar diagnosed
bilateral carpal and cubital tunnel syndromes.
Mukkamala, M.D., performed an independent medical evaluation
on January 26, 2017, in which he opined that while Ms.
Kitchen's symptoms are suggestive of carpal tunnel
syndrome, the EMG was not conclusive for the condition. He
further opined that if she does have carpal tunnel syndrome,
it is not the result of her job duties. He found that Ms.
Kitchen's job does not involve the degree of repetition
and/or force required to cause carpal tunnel syndrome.
Further, though she alleges that she had the symptoms for ten
years, she did not seek treatment while she was working, and
she retired due to other medical conditions. Dr. Mukkamala
further opined that Ms. Kitchen is obese, which is a very
significant non-occupational risk factor for developing
carpal tunnel syndrome. Dr. Mukkamala noted that he disagreed
with the EMG findings of ulnar nerve pathology as his review
of the EMG indicated the study was suboptimal.
Kitchen testified in an April 21, 2017, deposition that she
worked as a teacher for twenty-six or twenty-seven years. She
stated that she did a lot of typing, made lesson plans, and
handled and stapled large packets of paper. She started
having problems with her hands ten years before she retired
and the symptoms gradually worsened over time. Ms. Kitchen
testified that her hands would go numb and she experienced
pain in her thumb. She also started having numbness in her
elbows and had difficulty picking things up.
August 14, 2017, independent medical evaluation, Bruce
Guberman, M.D., diagnosed bilateral carpal and cubital tunnel
syndromes as a result of repeated trauma at work. Dr.
Guberman reviewed Ms. Kitchen's work activities and
concluded that they were the cause of her carpal and cubital
tunnel syndromes. He stated that the EMG confirmed his
diagnoses. He believed Ms. Kitchen had reached maximum
medical improvement and assessed 16% impairment.
Bailey, M.D., performed an independent medical evaluation on
November 6, 2017, in which she diagnosed bilateral carpal
tunnel syndrome. However, at the time of the evaluation, Ms.
Kitchen had no physical examination findings to support the
diagnosis. Dr. Bailey strongly opined that her carpal tunnel
syndrome is unrelated to her job duties. Her job did not
require the kind of forceful and repetitive activities known
to cause carpal tunnel syndrome. Dr. Bailey noted that carpal
tunnel syndrome is a common disease, that obesity is a risk
factor for the condition, and that it was likely the cause of
Ms. Kitchen's carpal tunnel syndrome. Dr. Bailey
disagreed with Dr. Guberman's opinion and noted that
clerical duties, such as hers, do not cause carpal tunnel
syndrome. She found that Dr. Guberman's opinion was in
conflict with the extensive body of medical literature
regarding the causality of carpal tunnel syndrome.
claims administrator rejected the claim on January 30, 2017.
The Office of Judges affirmed the decision in its April 11,
2018, Order. It found that the evidence supports a diagnosis
of carpal tunnel syndrome, but it questioned the diagnosis of
cubital tunnel syndrome. The Office of Judges found that Dr.
Nadar did not express an opinion regarding whether Ms.
Kitchen's symptoms are the result of her occupational
duties. He did, however, mark work-related disease on the
application for benefits. The Office of Judges made note of
the fact that Ms. Kitchen completed her application on July
26, 2014, but did not file it until June of 2016. It further
noted that per West Virginia Code of State Rules §
85-20-41.2 (2006), half of all carpal tunnel cases are
idiopathic. West Virginia Code of State Rules §
85-20-41.4 lists medical conditions frequently contributing
to or causing carpal tunnel syndrome, of which obesity is
included. Finally, West Virginia Code of State Rules §
85-20-41.5 lists occupational groups at higher risk for
carpal tunnel syndrome and states that studies have failed to
show a relationship between carpal tunnel syndrome and
Office of Judges concluded that Ms. Kitchen's work
activities were not the type that place her at higher risk
for developing carpal tunnel syndrome as they were mainly
clerical in nature and did not involve the kind of
repetitive, high impact movements known to cause carpal
tunnel syndrome. Additionally, she is obese, which is a
condition that is listed as causing or contributing to carpal
tunnel syndrome. The Office of Judges decided that Dr.
Bailey's report was comprehensive and her conclusion that
Ms. Kitchen did not develop carpal tunnel syndrome as a
result of her job duties was well supported by the
evidentiary record. The Board of Review adopted the findings
of fact and conclusions of law of the Office of Judges and
affirmed its Order on September 26, 2018.
review, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review. Both
Drs. Mukkamala and Bailey concluded that Ms. Kitchen's
job duties are not sufficient to cause the development of
carpal or cubital tunnel syndrome. Her job mainly consists of
clerical work, which is noted in West Virginia Code of State
Rules § 85-20-41 as the type of job duties that do not
cause carpal tunnel syndrome. Ms. Kitchen also failed to
prove by a preponderance of the evidence that her job duties
led her to develop cubital tunnel syndrome.
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 ...