### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED

March 21, 2018

EDYTHE NASH GAISER , CLERK 

### JOHN A. BOLEN, Claimant Below, Petitioner SUPREME COURT OF APPEALS

OF WEST VIRGINIA 

### vs.) No. 17-0958 (BOR Appeal No. 2051914) (Claim No. 2016012804)

AMFIRE, LLC, Employer Below, Respondent

MEMORANDUM DECISION

Petitioner John A. Bolen, by Reginald D. Henr y, his attorney, appeals the decision of the West Virginia Workers’ Compensation Board of Review. Amfire, LLC, by Sean Harter, its attorney, filed a timely response.

The issue on appeal is the compensability of Mr. Bolen’s worker’s compensation claim for bilateral carpal tunnel syndrom e. The claims administrator de nied Mr. Bolen’s claim on April 14, 2016. The Office of Judges affirmed the claims administrator in its April 5, 2017, Order. The Order was affirmed by the Board of Review on September 26, 2017. The Court has carefully reviewed the records, written arguments, and appe ndices contained in the br iefs, 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 deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate

Procedure.

Mr. Bolen submitted an application for workers’ compensation benefits alleging he developed bilateral carp al tunnel syndrome as the result of his work as a continuous mine operator. Prior to the diagnosis of bilateral carpal tunnel syndrome by Syed Zahir, M.D., on September 29, 2015, Mr. Bolen had been dia gnosed with hypertension, hypothyroidism and

arthritis.

The employee section of the employees’ and physicians’ report of injury signed by Mr. Bolen on May 8, 2015, states Mr. Bolen injured hi s hands while working as a continuous mine operator due to the conti nuous and repetitive use of a remote control. Dr. Za hir completed the

1physician section of the report on October 8, 2015, and stated Mr. Bolen’s diagnosis was

bilateral hand and flexor tendon synovitis due to his work.

Christopher Martin, M.D., pe rformed a medical records re view on March 10, 2016. Dr. Martin agreed that Mr. Bolen had developed bilateral carpal tunne l syndrome based on the

records of Dr. Zahir and the EM G/NCV testing results. However, Dr. Martin did not believe the carpal tunnel syndrome was causally related to Mr. Bolen’s employ ment as a coal miner. Dr. Martin opined, based on his review of Mr. Bole n’s job description, that Mr. Bolen was not exposed to segmental vibration. Se gmental vibration is the type of vibration that causes carpal tunnel syndrome. Additionally, based on Dr. Mart in’s direct observation of continuous mine operators who were working in the mine, he not ed that a continuous mine operator “holds a remote control box and operates switches with his fingers”. The work was repetitive but not

forceful and did not involve awkward wrist postures. In his opinion, Mr. Bolen did not experience the type of ergonomic exposures compatible with work -related carpal tunnel syndrome. The claims administrator rejected Mr. Bolen’s claim on April 14, 2016, based on Dr. Martin’s report.

On September 8, 2016, Prasadarao Mukkamala, M.D., performed an independent medical evaluation. Mr. Bolen provi ded a history of numbness in both hands for about six or seven years, with more recent loss of grip strength and pain. Mr. Bolen stopped working in 2014 because he developed arthrosis of the shoulder that requi red surgery. Dr. Mukkamala diagnosed bilateral carpal tunnel syndrome, which he opined was idi opathic in natu re. He found the causes of the carpal tunnel syndrome were Mr. Bolen’s obe sity and hypothyroidism. In his opinion, Mr. Bolen’s work as a continuous mine operator did not cause the bilateral carpal tunnel syndrome because it did not involve the use of force and awkward postures that pose an increased risk for the development of carpal tunnel syndrome.

Dr. Zahir prepared a letter to the U.S. De partment of Labor re garding Mr. Bolen on September 8, 2016, in which he noted that Mr. Bo len started to have sy mptoms of pain and

numbness in his hands in 2013. Mr. Bolen continue d to have the symptoms after he stopped working in 2014. In Dr. Zahir’s opinion, Mr. Bole n’s occupation was a major contributing factor in the development of the bila teral carpal tunnel syndrome.

In an October 3, 2016, affidavit, Mr. Bolen av owed that his work as a continuous mine operator required him to set bits in the miner, put roof bolts in, shovel belts, operate machines that mine coal, pull cable, hang curtain, and hang ventilation. In his last position he used a continuous miner, hammers, channel locks, shove ls, axes, and a bow saw. He used his hands, wrists, and elbows in a forcef ul and repetitive manner.

Syam Stoll, M.D., performed an indepe ndent medical evaluation on December 1, 2016. He noted that even though Mr. Bolen had not worked since October of 2014, his hands had gotten weaker and he con tinued to have persistent numbness. Dr . Stoll diagnosed bilateral carpal tunnel syndrome. He opined that the bilate ral carpal tunnel syndrome was due to hypothyroidism, depression, obesity, and migraines. At the time of his examination, Mr. Bolen had not worked for almost three years, there by removing the occupational exposure. However,

2he continued to experience the symptoms, wh ich suggested the cause was not occupational exposure. Dr. Stoll opined that Mr. Bolen’s work as a continuous mine operator did not put him at risk for developing carpal tunnel syndrome b ecause the work did not require forceful wrist motion, awkward positioning of the wrist, or the use of vibratory force.

The Office of Judges affirmed the claims ad ministrator’s rejection of the claim on April 5, 2017. It looked to West Virginia Code of St ate Rules § 85-20-41 (2006) for guidance on the causation of carpal tunnel syndrome. It noted that West Virginia Code of State Rules § 85-20-41 lists medical conditions that produce or contri bute to carpal tunnel syndr ome including diabetes, hypothyroidism, obesity, alcohol abuse, rheuma toid arthritis, and postural abnormalities. Awkward wrist positioning, use of vibratory tools, significan t grip force, and high force repetitive movements have also been shown to contribute to carpal tunnel syndrome. After reviewing the reports of Drs. Zahir, Martin, Mukkamala, and Stoll, the Office of Judges noted that the only physician that found the carpal tunn el syndrome was due to Mr. Bolen’s work was Dr. Zahir. Drs. Martin, Mukkamala, and Stoll all agreed that Mr. Bolen’s work as a continuous mine operator did not subject him to the type of ergonomic exposure expected to cause carpal tunnel syndrome. They also agreed that Mr. Bo len’s hypothyroidism contributed to the carpal tunnel syndrome. Therefore, the O ffice of Judges found that it was mo re likely than not that Mr. Bolen’s bilateral carpal tunnel syndrome was not occupationa lly induced. 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, 2017.

After review, we agree with the reasoning and conclusions of the Office of Judges as affirmed by the Board of Review . There is no question that Mr . Bolen has developed bilateral carpal tunnel syndrome. However, while Mr. Bole n performed repetitive job duties, they were not the type of repetiti ve actions that lead to the deve lopment of carpal tunnel syndrome. Additionally, Mr. Bolen stopped wo rking at least a year prio r to the examination by Dr. Mukkamala and almost three years prior to the ev aluation by Dr. Stoll. His continued symptoms and complaints after the occupational exposure show the claims administrator was correct in denying Mr. Bolen’s claim.

For the foregoing reasons, we find that the deci sion 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 materi al misstatement or mischaracterization of the evidentiary record. Therefore, the decision of the Board of Review is affirmed.

Affirmed.

ISSUED: March 21, 2018

CONCURRED IN BY: Chief Justice Margaret L. Workman

Justice Robin J. Davis

Justice Menis E. Ketchum Justice Allen H. Loughry II

Justice Elizabeth D. Walker

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