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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

KEVIN BALL,

Claimant Below, Petitioner

vs.) No. 18-0432 (BOR Appeal No. 2052294)

(Claim No. 2016018829)

 

WEST FORK COAL, LLC, 

Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Kevin Ball, by John H. Shumate Jr., his attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. West Fork Coal, LLC, by Patricia E. 

McEnteer, its attorney, filed a timely response.

The issue on appeal is the addition of an additional condition to the claim and medical 

benefits. The claims administrator denied the addition of bilateral cubital tunnel syndrome to the 

claim on May 10, 2017. On June 22, 2017, it denied authorization of carpal tunnel syndrome 

surgery. The Office of Judges affirmed the May 10, 2017, decision and reversed the June 22, 

2017, the decision in its October 23, 2017, Order. The Order was affirmed by the Board of 

Review on April 20, 2018. The Court has carefully reviewed the records, written arguments, and 

appendices contained in the briefs, 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 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 

Procedure. 

Mr. Ball, a heavy equipment operator, alleges that he developed cubital tunnel syndrome 

in the course of and resulting from his employment. On July 16, 2015, Yogesh Chand, M.D., 

performed an independent medical evaluation in which he noted that Mr. Ball was diagnosed 

with carpal tunnel syndrome in 2011. He underwent surgery in 2013. He was also diagnosed 

with cubital tunnel syndrome, but it has not been held compensable. Dr. Chand diagnosed 

residual bilateral carpal tunnel syndrome and tardy ulnar palsy of both elbows. Dr. Chand opined 

FILED

November 2, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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that Mr. Ball has cubital tunnel syndrome and recommended another EMG. He opined that both 

the carpal and cubital tunnel syndromes are compensable and stated that he was unsure as to why 

it was not held compensable. 

In a December 1, 2015, report of occupational injury or disease, Mr. Ball stated that he 

sustained injuries to both elbows in the form of tardy ulnar palsy/cubital tunnel syndrome. He 

alleges the condition arose as a result of repetitive use of the elbows while operating heavy 

equipment that was exposed to severe vibration. The physician’s section was completed by Syed 

Zahir, M.D. Dr. Zahir diagnosed bilateral cubital tunnel syndrome. A treatment note by Dr. Zahir 

that same day indicates Mr. Ball had experienced pain and numbness in both hands as well as 

elbow pain for the previous three to four years. He worked as a dozer operator for twenty years. 

Dr. Zahir found that Mr. Ball had bilateral carpal and cubital tunnel syndrome and would require 

surgery for both conditions. On July 18, 2016, the claim was held compensable for recurrent 

carpal tunnel syndrome. 

On October 7, 2016, Dr. Zahir noted that Mr. Ball still had pain in his hands and had been 

developing more weakness. Dr. Zahir diagnosed bilateral carpal tunnel syndrome and recurrent 

synovitis flexor tendon with cubital tunnel syndrome. He recommended another EMG. The EMG 

was performed on December 14, 2016, and was interpreted by Barry Vaught, M.D. It showed 

evidence of mild bilateral median neuropathy at the wrists consistent with mild bilateral carpal 

tunnel syndrome. It also revealed no evidence of ulnar neuropathy. On February 28, 2017, Dr. 

Zahir noted that the EMG showed mild carpal tunnel syndrome but Mr. Ball had a lot of 

symptoms in the hands. Though he had elbow symptoms, the EMG did not show evidence of 

cubital tunnel syndrome. Dr. Zahir’s diagnosis remained the same. He stated that MR. Ball

would undergo carpal tunnel surgery and requested authorization.

In a February 8, 2017, supplemental report, Prasadarao Mukkamala, M.D., indicated that 

he evaluated Mr. Ball in 2011 for bilateral carpal tunnel syndrome. He noted that Mr. Ball had 

filed a new claim for carpal and cubital tunnel syndrome and had undergone carpal tunnel 

surgeries in February and March of 2013. Dr. Mukkamala stated that he had reviewed the file, 

the evaluation by Dr. Chand, and Mr. Ball’s job duties. He opined that the cubital tunnel 

syndrome is not causally related to Mr. Ball’s occupational duties. 

In a second supplemental report dated February 14, 2017, Dr. Mukkamala stated that 

there is no objective evidence of bilateral cubital tunnel syndrome in this case. He opined that if 

Mr. Ball does have cubital tunnel syndrome, it is not work-related. He stated that he reviewed the 

Musculoskeletal Disorders and Workplace Factors published by the National Institute for 

Occupational Safety and Health and it does not even mention cubital tunnel syndrome as work 

related. Dr. Mukkamala also reviewed the American Medical Association’s Guides to the 

Evaluation of Permanent Impairment (4th ed. 1993), which concluded that there has been no 

evidence of a causal relationship between cubital tunnel syndrome and employment duties 

demonstrated in medical literature. There was some evidence that forceful repetition was a risk 

factor for the condition. There was insufficient evidence for vibration, highly repetitive work 

alone, forceful work, or awkward postures. There was a strong correlation between cubital tunnel 
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syndrome and age, as prevalence of the disease increases with age. Dr. Mukkamala ultimately 

concluded that the cubital tunnel syndrome is not related to Mr. Ball’s occupational duties. 

Paul Bachwitt, M.D., performed an independent medical evaluation on June 14, 2017, in 

which he noted that Mr. Ball has previously had carpal tunnel surgery in February and March of 

2013. Dr. Bachwitt examined Mr. Ball in June of 2013 and found that he had reached maximum 

medical improvement. In July of 2015, Mr. Ball was examined by Dr. Chand who found that he 

had residual carpal tunnel syndrome in both wrists. Dr. Bachwitt stated that he examined Mr. 

Ball on November 10, 2015, and found that he needed a repeat EMG. Dr. Bachwitt opined that 

Mr. Ball does not need carpal tunnel surgery and that he does not put forth credible effort on 

examination. Dr. Bachwitt also opined that Mr. Ball does not have cubital tunnel syndrome. 

Dr. Zahir completed an affidavit of medical necessity on August 17, 2017, in which he

asserted that Mr. Ball requires carpal tunnel surgery on his right hand. He opined that it would 

help with the chronic pain, paresthesia, swelling, and limited range of motion. Dr. Zahir also 

stated that the condition is directly related to Mr. Ball’s work duties. 

The claims administrator denied the addition of bilateral cubital tunnel syndrome to the 

claim on May 10, 2017. On June 22, 2017, it denied authorization of surgery for carpal tunnel 

syndrome. The Office of Judges affirmed the denial of the addition of bilateral cubital tunnel 

syndrome to the claim and reversed the denial of authorization of carpal tunnel surgery in its 

October 23, 2017, Order. 

Regarding the addition of cubital tunnel syndrome to the claim, the Office of Judges 

found that in July of 2015, Dr. Chand noted in his report that he had diagnosed bilateral carpal 

tunnel syndrome in 2011 based on an EMG. That EMG also showed mild cubital tunnel 

syndrome. Dr. Chand diagnosed carpal and cubital tunnel syndrome. He asserted that both 

conditions should be held compensable. The Office of Judges found that Mr. Ball underwent a 

new EMG on December 14, 2016, that showed no evidence for ulnar neuropathy (cubital tunnel 

syndrome) but Dr. Zahir still diagnosed cubital tunnel syndrome. The Office of Judges noted that 

Dr. Mukkamala opined in his February 14, 2017, report that there is no credible, objective 

evidence of cubital tunnel syndrome in this case. He further opined that if Mr. Ball does have 

cubital tunnel syndrome, it is not work-related. Dr. Bachwitt stated in his June 14, 2017, report 

that there is no evidence of ulnar neuropathy and opined that Mr. Ball does not have cubital 

tunnel syndrome. The Office of Judges concluded that the preponderance of the evidence 

indicates Mr. Ball does not have cubital tunnel syndrome. 

The Office of Judges found that the request for authorization of carpal tunnel surgery 

should be authorized. Dr. Zahir reviewed the EMG, examined Mr. Ball on multiple occasions, 

and concluded that he has carpal tunnel syndrome. He recommended surgery to treat the 

condition, specifying that it would relieve the compression of the median nerve and correct the 

paresthesia, pain, swelling, and limited range of motion Mr. Ball is experiencing. Further, Dr. 

Zahir opined that the condition was work-related and that he would greatly benefit from the 

surgery. Dr. Bachwitt’s opinion was found to be less reliable than that of Dr. Zahir. Dr. Bachwitt 

recommended denying the surgery because he felt Mr. Ball was not giving full effort during 
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examination. The Office of Judges found Dr. Zahir’s opinion to be more persuasive. The Board 

of Review adopted the findings of fact and conclusions of law of the Office of Judges and 

affirmed its Order on April 20, 2018. 

After review, we agree with the reasoning and conclusions of the Office of Judges as 

affirmed by the Board of Review. The evidence indicates Mr. Ball does not have cubital tunnel 

syndrome. Specifically, the December 14, 2016, EMG showed no evidence of cubital tunnel 

syndrome. The claim has been held compensable for carpal tunnel syndrome, and the Office of 

Judges and Board of Review did not err in relying on the opinion of Dr. Zahir and authorizing 

surgery for the condition. 

For the 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 

evidentiary record. Therefore, the decision of the Board of Review is affirmed. 

 Affirmed.

ISSUED: November 2, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Paul T. Farrell sitting by temporary assignment

Justice Tim Armstead

Justice Evan H. Jenkins

Justice Allen H. Loughry II suspended and therefore not participating.