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IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

NEWPORT TRADING CO., INC,

Employer Below, Petitioner

vs.) No. 22-ICA-104 (BOR Appeal No. 2058191)

(JCN: 2021023435)

LARRY R. HICKS,

Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner Newport Trading Co., Inc., appeals the August 19, 2022, order of the 

Workers’ Compensation Board of Review (“Board”). Respondent Larry R. Hicks filed a 

timely response.1 Petitioner did not file a reply. The issue on appeal is whether the Board 

erred in affirming the Office of Judges’ decision holding the claim compensable for carpal 

tunnel syndrome.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-

11-4 (2022). After considering the parties’ arguments, the record on appeal, and the 

applicable law, this Court finds no substantial question of law and no prejudicial error. For 

these reasons, a memorandum decision affirming the Board’s order is appropriate under 

Rule 21 of the Rules of Appellate Procedure. 

In March of 2021, Mr. Hicks filed an Employees’ and Physicians’ Report of 

Occupational Injury or Disease, stating that he developed carpal tunnel syndrome in the 

course of and as a result of his employment with Newport Trading Co. Mr. Hicks’ treating 

physician, Richard Wisman, M.D., diagnosed Mr. Hicks with bilateral carpal tunnel 

syndrome, which he attributed to Mr. Hicks’ occupation. Dr. Wisman completed a 

Physician Questionnaire for Carpal Tunnel Claim wherein he indicated that Mr. Hicks had 

a history of neck pain/stiffness, high blood pressure, and traumatic injury to the fingers, 

hand, wrist, shoulder, or arm. Dr. Wisman further noted that Mr. Hicks had muscle atrophy 

in his right arm and both arms had positive Tinel’s and Phalen’s signs. Dr. Wisman again 

stated his diagnosis of carpal tunnel syndrome and noted that Mr. Hicks engaged in 

repetitive motions with his hands and arms with various tools. 

1 Petitioner is represented by James W. Heslep, Esq. Respondent is represented by 

Reginald D. Henry, Esq. and Lori J. Withrow, Esq.

FILED

November 18, 2022

EDYTHE NASH GAISER, CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA
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The claim administrator requested that Rebecca Thaxton, M.D., review the claim 

and offer her opinion as to whether Mr. Hicks’ condition was causally related to his 

employment. Dr. Thaxton opined that the medical documentation did not indicate that Mr. 

Hicks’ carpal tunnel syndrome was work-related. According to Dr. Thaxton, Mr. Hicks’ 

job description did not show an increased risk for carpal tunnel syndrome and did not 

indicate constant tool use. Rather, the job description demonstrated infrequent and slow 

tool use with driving and other duties in between use. Dr. Thaxton commented that certain 

medical conditions such as obesity can cause or contribute to carpal tunnel syndrome and 

noted that Mr. Hicks acknowledged his obesity on his questionnaire. Finally, Dr. Thaxton 

noted that she did not have an EMG/NCS available for review and that Mr. Hicks’ 

diagnosis was not confirmed by any neurological diagnostic testing. Following Dr. 

Thaxton’s review, the claim administrator denied the claim by order dated June 30, 2021, 

stating that Mr. Hicks’ condition was not due to an injury or disease received in the course 

of and resulting from his employment. Mr. Hicks protested the order.

In August of 2021, Mr. Hicks testified via deposition that he began working for 

Newport Trading Co. in May of 1996 and that he averaged ten-to-twelve-hour days, five 

to seven days a week. In performing his duties, Mr. Hicks used a variety of tools including 

screwdrivers, wire cutters, channel locks, pipe threaders, drills, reciprocating saws, and 

jackhammers. Mr. Hicks described the work as “brute work” that involved vibrating tools

and force and stated that he nearly constantly used tools to perform his duties. Mr. Hicks

described the pace of his work as average unless there was an emergency, in which case he 

would be working at a faster pace. Mr. Hicks stated that his hands and wrists were often in 

various positions while working and that he was required to turn, bend, and stretch his 

wrists in awkward positions while using tools. According to Mr. Hicks, he first noticed 

symptoms approximately ten to twelve years prior and stated that his symptoms had 

improved somewhat since quitting his job in September of 2020.

Mr. Hicks underwent an EMG study in September of 2021, that revealed “a median 

nerve neuropathy at or across the right and left wrist affecting the sensory motor fibers that 

are consistent with a severe bilateral carpal tunnel syndrome that is worse on the right.” 

Subsequently, in October of 2021, Michael J. Kominsky, D.C., performed an independent 

medical examination (“IME”) of Mr. Hicks. Dr. Kominsky opined, within a reasonable 

degree of medical certainty, that Mr. Hicks developed moderate to severe bilateral carpal 

tunnel syndrome as a result of his employment. Dr. Kominsky stated that the extensive use 

of hand tools as described by Mr. Hicks in his deposition and medical records was 

consistent with the development of carpal tunnel syndrome. Further, Dr. Kominsky found 

that Mr. Hicks’ median nerve was compressed at the wrist as a result of highly vibratory 

tools, drills, pipe threaders, and torque wrenches, all of which Mr. Hicks used during his 

employment. 

In December of 2021, Mr. Hicks underwent another IME performed by Syam B. 

Stoll, M.D. Dr. Stoll found that Mr. Hicks’ diagnosis of carpal tunnel syndrome was not 
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supported by the medical evidence. According to Dr. Stoll, Mr. Hicks endorsed pain and 

tingling in all five fingers on his hand as well as pain radiating up into his shoulders, which 

was not consistent with carpal tunnel syndrome. Dr. Stoll also opined that Mr. Hicks’ job 

duties did not support a diagnosis of carpal tunnel syndrome and that Mr. Hicks had other 

comorbidities which predisposed him to bilateral carpal tunnel syndrome, such as morbid 

obesity and chronic neck pain. Dr. Stoll noted that he was not provided with any EMG/NCS 

studies but stated, “if the claimant does have carpal tunnel syndrome, it is my medical 

opinion the likely cause of this diagnosis would be due to the claimant’s cervical 

spondylosis and morbid obesity.” 

By order dated April 15, 2022, the Office of Judges reversed the claim 

administrator’s order and held the claim compensable for carpal tunnel syndrome. The 

Office of Judges found that the medical evidence supported a diagnosis of carpal tunnel 

syndrome and that the opinions of Dr. Thaxton and Dr. Stoll had been rebutted. 

Specifically, the Office of Judges found that the EMG study performed demonstrated that 

Mr. Hicks had carpal tunnel syndrome and showed no evidence of chronic cervical 

radiculopathy, which were major tenants as to causality in Dr. Thaxton’s and Dr. Stoll’s

reports. Further, neither had the opportunity to review the EMG study. The Office of Judges 

found that Dr. Wisman’s report was reliable and that he stated that Mr. Hicks’ carpal tunnel 

syndrome was due to repetitive motion with the use of tools. The tribunal also found that 

Mr. Hicks’ testimony regarding his forceful use of hand tools, awkward positioning of the 

hands and wrists, and use of vibratory tools was persuasive and that his testimony had not 

been rebutted by Newport Trading Co. The tribunal cited to West Virginia Code of State 

Rules § 85-20-41 (2006), which specifically contemplates the type of job duties performed 

by Newport Trading Co. in terms of work settings associated with carpal tunnel syndrome.2

The Office of Judges noted that Mr. Hicks performed his work for a sufficient number of 

years to find that carpal tunnel syndrome is likely related to his work and that he was not 

required to exclude all possible causative factors in order for the claim to be held 

compensable. The Board adopted the findings of fact and conclusions of law of the Office 

of Judges and affirmed the April 15, 2022, order on August 19, 2022. Newport Trading 

Co. now appeals.

Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in 

part, as follows:

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Pursuant to West Virginia Code of State Rules § 85-20-41.5, in part, 

[o]ccupational groups at high risk for CTS [carpal tunnel syndrome] have 

included grinders, butchers, grocery store workers, frozen food factory 

workers, manufacturing workers, dental hygienists, platers and workers with 

high force, high repetitive manual movement. . . . Awkward wrist 

positioning, vibratory tools, significant grip force, and high force of 

repetitive manual movements have all been shown to contribute to CTS.
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The Intermediate Court of Appeals may affirm the order or decision of the 

Workers’ Compensation Board of Review or remand the case for further 

proceedings. It shall reverse, vacate, or modify the order or decision of the 

Workers’ Compensation Board of Review, if the substantial rights of the 

petitioner or petitioners have been prejudiced because the Board of Review’s 

findings are:

(1) In violation of statutory provisions;

(2) In excess of the statutory authority or jurisdiction of the Board of Review;

(3) Made upon unlawful procedures;

(4) Affected by other error of law;

(5) Clearly wrong in view of the reliable, probative, and substantial evidence 

on the whole record; or

(6) Arbitrary or capricious or characterized by abuse of discretion or clearly 

unwarranted exercise of discretion.

On appeal, Newport Trading Co. argues that the lower tribunals erred in holding the 

claim compensable for carpal tunnel syndrome. According to Newport Trading Co., Mr. 

Hicks does not suffer from work-related carpal tunnel syndrome and has not demonstrated

that he met the requirements of West Virginia Code § 23-4-1(f) (2021). Newport Trading 

Co. claims that Mr. Hicks’ evidence below failed to take his compounding conditions into 

consideration. Newport Trading Co. cites to West Virginia Code of State Rules § 85-20-

41.2, which notes that providers are advised to assess “several factors, diagnostic accuracy, 

confounding conditions, work setting and duration of symptoms in assigning causality.” 

Additionally, § 85-20-41.4 sets forth that compounding conditions such as obesity can 

precipitate carpal tunnel syndrome symptoms and that such conditions may impact 

causality. Newport Trading Co. contends that, here, neither Dr. Wisman nor Dr. Kominsky 

undertook any effort to determine causation and neither addressed Mr. Hicks’ 

comorbidities such as obesity and cervical issues. In contrast, Dr. Stoll considered these 

factors when determining that Mr. Hicks’ condition was not work-related. As such, 

Newport Trading Co. argues that Mr. Hicks has not proven by a preponderance of the 

evidence that he developed work-related carpal tunnel syndrome and the lower tribunals

erred in holding the claim compensable. 

After review, we agree with the Board that Mr. Hicks has demonstrated he 

developed carpal tunnel syndrome in the course of and as a result of his employment. Both 

Dr. Wisman and Dr. Kominsky diagnosed Mr. Hicks with carpal tunnel syndrome and 

attributed the disease to his employment, and the Office of Judges, as affirmed by the 

Board, found their opinions to be credible. While Newport Trading Co. relies on the 

medical reports of Dr. Thaxton and Dr. Stoll, neither had the opportunity to review the 

EMG study performed on Mr. Hicks, which definitively demonstrated a diagnosis of carpal 

tunnel syndrome. Further, the study also demonstrated that Mr. Hicks did not have cervical 

radiculopathy, rebutting Dr. Thaxton and Dr. Stoll’s opinion that the condition was 
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attributable to cervical spondylosis. Moreover, although Newport Trading Co. argues that 

Mr. Hicks has comorbidities, such as obesity, which could have caused a diagnosis of 

carpal tunnel syndrome, the Office of Judges, and by extension the Board, found that 

Newport Trading Co.’s argument was not persuasive. Indeed, the evidence demonstrated 

that Mr. Hicks’ symptoms improved somewhat when he ceased working. Lastly, we note 

that Mr. Hicks’ job duties are exactly those considered by West Virginia Code of State 

Rules § 85-20-41.5 as being high risk for causing carpal tunnel syndrome: “Awkward wrist 

positioning, vibratory tools, significant grip force, and high force of repetitive manual 

movements have all been shown to contribute to [carpal tunnel syndrome].” Mr. Hicks

testified that his job duties included frequent use of vibrating tools, awkward positioning 

of the hands and wrist, and “brute” work with the use of force, and Newport Trading Co.

failed to rebut evidence of these job duties. Accordingly, we find no error in the Board’s 

order affirming the Office of Judges’ decision holding the claim compensable.

Accordingly, we affirm.

Affirmed.

ISSUED: November 18, 2022

CONCURRED IN BY:

Chief Judge Daniel W. Greear

Judge Charles O. Lorensen

Judge Thomas E. Scarr, not participating