STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED 

RAYMOND HARTLEY, May 5, 2017 

RORY L. PERRY II, CLERK Claimant Below, Petitioner SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) No. 16-0579	 (BOR Appeal No. 2051003) 

(Claim No. 2014019903) 

EASTERN ASSOCIATED COAL, LLC, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Raymond Hartley, by Reginald Henry, his attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. Eastern Associated Coal, LLC, by 

Henry Bowen, its attorney, filed a timely response. 

The issue presented in the instant appeal is Mr. Hartley’s request for an increased 

permanent partial disability award. On December 8, 2014, the claims administrator granted Mr. 

Hartley a 6% permanent partial disability award for bilateral carpal tunnel syndrome. The Office 

of Judges affirmed the December 8, 2014, claims administrator’s decision in its Order dated 

December 9, 2015. This appeal arises from the Board of Review’s Final Order dated May 20, 

2016, in which the Board affirmed the December 9, 2015, Order of the Workers’ Compensation 

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. Hartley filed an application for workers’ compensation benefits in which he indicated 

that he developed bilateral carpal tunnel syndrome in the course of and resulting from his 

employment, and his claim was held compensable for bilateral carpal tunnel syndrome on March 

24, 2014. Subsequently, orthopedic surgeon S. Brett Whitfield, M.D., performed bilateral carpal 

tunnel releases. Following the surgical procedures, Dr. Whitfield noted that Mr. Hartley’s 

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symptoms associated with carpal tunnel syndrome improved. On September 18, 2014, during the 

course of a routine examination following the completion of the surgical procedures, Dr. 

Whitfield noted that Mr. Hartley began experiencing paresthesia in the right hand with associated 

elbow pain. Dr. Whitfield diagnosed clinically severe right cubital tunnel syndrome and 

recommended that Mr. Hartley undergo an electromyogram.1 

On November 26, 2014, Saghir Mir, M.D., performed an independent medical evaluation 

for the purpose of determining the amount of permanent impairment arising from the 

compensable diagnosis of bilateral carpal tunnel syndrome. Dr. Mir also noted that Mr. Hartley 

is experiencing symptoms associated with ulnar radiculopathy in the right arm. He then applied 

the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 

1993) and West Virginia Code of State Rules § 85-20-64.5 (2006) and opined that Mr. Hartley 

sustained 3% whole person impairment arising from each wrist as a result of bilateral carpal 

tunnel syndrome, for a total of 6% whole person impairment. The claims administrator granted 

Mr. Hartley a 6% permanent partial disability award based upon Dr. Mir’s independent medical 

evaluation on December 8, 2014. 

Additionally, Bruce Guberman, M.D., performed an independent medical evaluation on 

April 7, 2015. Dr. Guberman opined that Mr. Hartley currently exhibits signs of severe carpal 

tunnel syndrome in the right wrist. He utilized the American Medical Association’s Guides to the 

Evaluation of Permanent Impairment and opined that Mr. Hartley sustained 11% whole person 

impairment as a result of carpal tunnel syndrome in the right wrist and 3% whole person 

impairment as a result of carpal tunnel syndrome in the left wrist, for a total of 14% whole 

person impairment.2 

In its Order affirming the December 8, 2014, claims administrator’s decision, the Office 

of Judges held that Mr. Hartley failed to demonstrate that he is entitled to an additional 

permanent partial disability award above the 6% award granted by the claims administrator for 

bilateral carpal tunnel syndrome. The Board of Review affirmed the reasoning and conclusions 

of the Office of Judges in its decision dated May 20, 2016. On appeal, Mr. Hartley asserts that 

the evidence of record demonstrates that he is entitled to an additional permanent partial 

disability award.3 

The Office of Judges noted that both Dr. Mir and Dr. Guberman opined that Mr. Hartley 

sustained 3% whole person impairment as a result of carpal tunnel syndrome in the left wrist 

and, therefore, determined that the degree of permanent impairment arising from Mr. Hartley’s 

carpal tunnel syndrome in the left wrist is not in dispute. Regarding the degree of permanent 

impairment arising from carpal tunnel syndrome in Mr. Hartley’s right wrist, the Office of 

1 Cubital tunnel syndrome is not a compensable component of Mr. Hartley’s claim.
 

2 Dr. Guberman did not apply West Virginia Code of State Rules § 85-20-64.5 when arriving at
 

his impairment recommendation.
 

3 Eastern Associated Coal, LLC, asserts that the reasoning set forth in our recent decision in Gill
 

v. City of Charleston, 236 W.Va. 737, 783 S.E.2d 857 (2016) is applicable to the instant appeal. 

However, we find that our reasoning set forth in Gill does not apply to the case at bar. 

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Judges found that Dr. Guberman’s recommendation of 11% whole person impairment is not 

consistent with Mr. Hartley’s medical record. Specifically, the Office of Judges found that 

neither Dr. Whitfield, Mr. Hartley’s treating physician, nor Dr. Mir documented evidence of 

clinically significant right-sided carpal tunnel syndrome following the bilateral carpal tunnel 

release procedures. The Office of Judges further found that both Dr. Whitfield and Dr. Mir 

attributed the post-operative symptoms present in Mr. Hartley’s right hand to non-compensable 

cubital tunnel syndrome. In that regard, the Office of Judges found that only Dr. Guberman 

determined that Mr. Hartley continues to experience symptoms of significant right-sided carpal 

tunnel syndrome. Moreover, the Office of Judges found that Dr. Guberman’s conclusions are 

unreliable because he failed to apply West Virginia Code of State Rules § 85-20-64.5, which 

limits the maximum degree of permanent impairment allowable in carpal tunnel syndrome 

claims. Finally, the Office of Judges concluded that Dr. Mir’s report represents the most accurate 

and reliable assessment of Mr. Hartley’s degree of permanent impairment arising from bilateral 

carpal tunnel syndrome because Dr. Mir’s report is consistent with the entirely of Mr. Hartley’s 

medical record, and because Dr. Mir properly applied the American Medical Association’s 

Guides to the Evaluation of Permanent Impairment and West Virginia Code of State Rules § 85­

20-64.5. We agree with the reasoning and conclusions of the Office of Judges, as affirmed by the 

Board of Review. 

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: May 5, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin J. Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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