1

 

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

DAVID L. POLING,

Claimant Below, Petitioner

vs.) No. 18-0924 (BOR Appeal No. 2050179)

(Claim No. 2002046529)

 

OHIO POWER COMPANY, 

Employer Below, Respondent

MEMORANDUM DECISION

Petitioner David L. Poling, by Counsel J. Robert Weaver, appeals the decision of the West 

Virginia Workers’ Compensation Board of Review (“Board of Review”). Ohio Power Company, 

by Counsel Henry C. Bowen, filed a timely response.

The issue on appeal is the residual amount of permanent partial disability for bilateral 

carpal tunnel syndrome and lateral epicondylitis in this claim. The claims administrator granted 

Mr. Poling a 0% permanent partial disability award for carpal tunnel syndrome on December 18, 

2012. The Workers’ Compensation Office of Judges (“Office of Judges”) reversed the claims 

administrator’s decision and granted Mr. Poling an additional 2% permanent partial disability 

award for the condition of lateral epicondylitis in an Order dated January 1, 2015. This appeal 

arises from the Board of Review’s Order dated September 20, 2018, in which the Board affirmed 

the decision of the Office of Judges. 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. Poling worked more than twenty years as a mechanic for Ohio Power Company. His 

job involved lifting or carrying heavy equipment. According to Mr. Poling, repetitive motion of 

both hands resulted in pain, numbness, tingling, and the loss of strength. He was diagnosed with 

bilateral carpal tunnel syndrome on February 25, 2002. The claims administrator held the claim 

compensable for the condition of carpal tunnel syndrome on March 28, 2002. 

FILED

November 1, 2019

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

Mr. Poling underwent carpal tunnel release at Wheeling Hospital on October 1, 2002. He 

was evaluated by Jack S. Koay, M.D., on March 11, 2003. Dr. Koay’s impression of Mr. Poling’s 

condition was status post bilateral carpal tunnel release with some mild residual clinical problems, 

including weakness along the two point discrimination along the median nerve distribution and 

scar formation on both palms. Dr. Koay found Mr. Poling to be at his maximum degree of medical 

improvement and recommended a permanent partial disability rating of 6% for each hand for a 

total of 12%. By Order of the claims administrator, Mr. Poling was granted a 12% award on March 

25, 2003. Mr. Poling continued to have issues following surgery. 

Although Mr. Poling had successful carpal tunnel release surgery, his symptoms gradually 

returned. He was experiencing nocturnal numbness and numbness in his last three fingers. A 2006 

EMG found epicondylitis with the left epicondylitis greater than the right. On March 21, 2006, the 

claims administrator updated the compensable conditions in the claim to include lateral 

epicondylitis. 

An independent medical evaluation was conducted by ChuanFang Jin, M.D., on November 

28, 2012, to evaluate Mr. Poling for a subsequent lumbar strain injury. During the examination, 

Mr. Poling complained of back pain, as well as numbness in his hands and fingers due to carpal 

tunnel syndrome. In her clinical impression, Dr. Jin noted Mr. Poling’s history of bilateral carpal 

tunnel syndrome release, and found clinical evidence of medial epicondylitis and ulnar neuropathy 

based on his examination. Dr. Jin questioned whether his epicondylitis and carpal tunnel syndrome 

is causally related to his employment. Dr. Jin concluded that Mr. Poling has 1% whole person 

impairment attributable to carpal tunnel syndrome. Because he received a prior 12% award for 

bilateral carpal tunnel syndrome, Dr. Jin stated that no additional impairment is indicated or 

warranted. Regarding epicondylitis, Dr. Jin did not find medical evidence to support permanent 

impairment for bilateral epicondylitis. By Order of the claims administrator dated December 18, 

2012, Mr. Poling was granted 0% permanent partial disability based on the November 28, 2012, 

report of Dr. Jin. Mr. Poling protested the claims administrator’s decision.

Mr. Poling was referred to Bruce A. Guberman, M.D., for an independent medical 

evaluation. On October 10, 2013, Dr. Guberman reported that Mr. Poling’s chief complaint was 

for his carpal tunnel syndrome and lateral epicondylitis. Dr. Guberman concluded that Mr. Poling 

had 13% impairment of the whole person for his right carpal tunnel syndrome and right lateral 

epicondylitis. He found 10% impairment of the whole person for Mr. Poling’s left carpal tunnel 

syndrome and left lateral epicondylitis. Utilizing the combined values chart, he arrived at a total 

of 22% whole person impairment as a result of bilateral carpal tunnel syndrome and bilateral

epicondylitis. Because he was previously granted a 12% permanent partial disability award, Dr. 

Guberman found a total of 10% impairment for the left arm aspect of the injury, including the left 

carpal tunnel syndrome and left lateral epicondylitis. 

By Order dated January 7, 2015, the Office of Judges reversed the December 18, 2012, 

claims administrator’s Order. The Office of Judges awarded 0% permanent partial disability for 

epicondylitis and granted Mr. Poling an additional 2% permanent partial disability based on the 

findings of Dr. Guberman. Because the claim was not reopened on the theory of progression or 
3

aggravation of Mr. Poling’s carpal tunnel syndrome, the Office of Judges did not consider Dr. 

Guberman’s recommendation for an additional award. The Office of Judges stated that carpal 

tunnel syndrome impairment is to be determined by first applying the criteria of the American 

Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993), and then 

adjusting that to the impairment ranges found in the West Virginia Code of State Rules § 85-20-

64.5 (2006),

1 which establishes a range of awards for impairment due to carpal tunnel syndrome 

as 0% - 6% for each affected hand. Any impairment rating in excess of 6% will be reduced to 6% 

under § 85-20-64.5. Mr. Poling appealed to the Board of Review.

In an Order dated September 20, 2018, the Board of Review found that even if the issue of 

permanent partial disability being protested includes bilateral carpal tunnel syndrome, the evidence 

does not support an additional permanent partial disability award for carpal tunnel syndrome. The 

Board of Review noted that Mr. Poling had been awarded 12% impairment for carpal tunnel 

syndrome (6% for each hand) on March 25, 2003. Because Mr. Poling had been awarded the 

maximum amount of permanent partial disability impairment allowed under West Virginia Code 

of State Rules § 85-20-64.5, the Board of Review reasoned that he is not entitled to an additional 

8% permanent partial disability award for bilateral carpal tunnel syndrome. The Board of Review 

did not err in concluding that Mr. Poling failed to establish that he is entitled to an additional award 

for his bilateral carpal tunnel syndrome.

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 so clearly wrong based upon the evidentiary record that even when all 

inferences are resolved in favor of the Board of Review’s findings, reasoning and conclusions, 

there is insufficient support to sustain the decision. Therefore, the decision of the Board of Review 

is affirmed. 

 Affirmed.

ISSUED: November 1, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker

Justice Margaret L. Workman

Justice Tim Armstead

Justice Evan H. Jenkins

Justice John A. Hutchison

 

1

In Davies v. West Virginia Office of the Ins. Com’r, 227 W. Va. 330, 708 S.E.2d 524 (2011), this 

Court held that West Virginia Code of State Rules § 85-20-64.5 was invalid as it applied to Table 

16 of the American Medical Association’s, Guides to the Evaluation of Permanent Impairment, 

(4th ed. 1993). However, in Dingess v. West Virginia Office of Insurance Commissioner, No. 

35662, 2012 WL 6050571 (W. Va. Dec. 5, 2012) (memorandum decision), the Court approved of 

impairment ratings calculated using Tables 11, 12, and 15, which were then modified to fit within 

the impairment range of impairment found in § 85-20-64.5. Dr. Guberman reported using Tables 

11, 12, and 15 to rate carpal tunnel syndrome.