The opinion
FILED
October 18, 2022
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
LEONARD SMITH,
Claimant Below, Petitioner
vs.) No. 21-0474 (BOR Appeal No. 2056010)
(Claim No. 2018026502)
BROOKS RUN SOUTH MINING, LLC,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Leonard Smith, by Counsel Gregory S. Prudich, appeals the decision of the West
Virginia Workers’ Compensation Board of Review (“Board of Review”). Brooks Run South
Mining, LLC, by Counsel Sean Harter, filed a timely response.
The issue on appeal is compensability. The claims administrator rejected the claim for
carpal tunnel syndrome on September 18, 2018. The Workers’ Compensation Office of Judges
(“Office of Judges”) affirmed the decision in its November 17, 2020, Order. The Order was
affirmed by the Board of Review on May 21, 2021.
The Court has carefully reviewed the records, written arguments, and appendices contained
in the briefs, and the case is mature for consideration. 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.
The standard of review applicable to this Court’s consideration of workers’ compensation
appeals has been set out under W. Va. Code § 23-5-15, in relevant part, as follows:
(c) In reviewing a decision of the Board of Review, the Supreme Court of
Appeals shall consider the record provided by the board and give deference to the
board’s findings, reasoning, and conclusions . . . .
(d) If the decision of the board represents an affirmation of a prior ruling by
both the commission and the Office of Judges that was entered on the same issue
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in the same claim, the decision of the board may be reversed or modified by the
Supreme Court of Appeals only if the decision is in clear violation of constitutional
or statutory provision, is clearly the result of erroneous conclusions of law, or is
based upon the board’s material misstatement or mischaracterization of particular
components of the evidentiary record. The court may not conduct a de novo
reweighing of the evidentiary record . . . .
See Hammons v. W. Va. Off. of Ins. Comm’r, 235 W. Va. 577, 582-83, 775 S.E.2d 458, 463-64
(2015). As we previously recognized in Justice v. West Virginia Office Insurance Commission,
230 W. Va. 80, 83, 736 S.E.2d 80, 83 (2012), we apply a de novo standard of review to questions
of law arising in the context of decisions issued by the Board. See also Davies v. W. Va. Off. of
Ins. Comm’r, 227 W. Va. 330, 334, 708 S.E.2d 524, 528 (2011).
Mr. Smith, a continuous miner operator, alleges that he developed carpal tunnel syndrome
in the course of and resulting from his employment with Brooks Run South Mining from April 21,
2014, to the present. Mr. Smith suffered from carpal tunnel prior to working for Brooks Run South
Mining. On May 1, 2006, he sought treatment from Family Healthcare Associates for bilateral
hand numbness. Examination showed positive Phalen’s and Tinel’s signs. Mr. Smith was
diagnosed with carpal tunnel syndrome. It was noted that an EMG was positive for bilateral carpal
tunnel syndrome and right ulnar neuropathy. Mr. Smith underwent a second EMG on September
22, 2010. J.O. Othman, M.D., interpreted the results as positive for bilateral carpal tunnel
syndrome, moderately severe on the right and mild on the left. The EMG also revealed right ulnar
neuropathy entrapment across the elbow.
After working for Brooks Run South Mining for four years, Mr. Smith again sought
treatment for carpal tunnel syndrome symptoms. On April 11, 2018, Barry K. Vaught, M.D.,
interpreted an EMG as positive for bilateral carpal tunnel syndrome, which was worse on the right.
A June 1, 2018, treatment note from Family Healthcare Associates indicates Mr. Smith was treated
for carpal tunnel syndrome. He stated that he operated a miner for twelve years. He had recently
switched positions due to numbness in both hands. Examination showed bilateral positive Phalen’s
and Tinel’s signs. The assessment was bilateral carpal tunnel syndrome.
The Employees’ and Physician’s Report of Injury, completed June 1, 2018, indicated Mr.
Smith was diagnosed with bilateral carpal tunnel syndrome as a result of an occupational injury.
The Employer’s Report of Injury was completed on June 15, 2018, and indicated Mr. Smith was a
shuttle car operator who was hired on April 21, 2014. Michael Muscari, M.D., signed a
HealthSmart Carpal Tunnel Syndrome Report on June 19, 2018. He stated Mr. Smith had no prior
diagnosis of carpal tunnel syndrome, no prior hand or wrist injuries, and no prior neck injuries.
The following day, June 20, 2018, Mr. Smith completed the HealthSmart Carpal Tunnel Syndrome
form. He stated that he was a miner operator with a prior diagnosis of carpal tunnel syndrome. Mr.
Smith stated that he worked ten hours per day, six days a week for eighteen years. Mr. Smith
asserted that he used his hands on computers and remote controls during that time. Most of the
time he was forced to crawl to reach his destinations. Due to his carpal tunnel syndrome, Mr. Smith
switched jobs in April of 2018.
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Prasadarao Mukkamala, M.D., performed an Independent Medical Evaluation on August
22, 2018, in which he noted that Mr. Smith reported numbness and tingling in both hands for about
three years. Mr. Smith stated that ten years prior, he had similar symptoms, but the symptoms
improved without treatment. Dr. Mukkamala diagnosed bilateral carpal tunnel syndrome but
opined that the condition was not related to Mr. Smith’s employment. Dr. Mukkamala opined that
Mr. Smith’s occupational activities did not involve the repetitive and forceful activities required
to cause carpal tunnel syndrome. The claims administrator rejected the claim on September 18,
2018, because it found that Mr. Smith’s occupational duties did not involve the repetitive motions
or force required to cause carpal tunnel syndrome.
Mr. Smith testified in an April 4, 2019, deposition that he had no prior hand or wrist
injuries. He stated that his symptoms began five to six years prior. Mr. Smith stated that from 2001
to 2011, he worked as a jack setter for Pinnacle Mining. He had to crawl every shift, which caused
pain in his wrists. On April 21, 2014, Mr. Smith began working for Brooks Run South Mining as
a continuous miner operator. His job required him to work on a computer, use hand tools, and use
remote controls. Mr. Smith testified that using remote controls to operate a miner required ten
hours of constant hand motion. Bilateral wrist pain caused Mr. Smith to switch jobs to a shuttle
car operator. He stated that he still operated a continuous miner but only a few days a month.
On June 24, 2019, Mr. Smith returned to Family Healthcare Associates for numbness and
pain in his hands that radiated to the elbows. He was diagnosed with hypertension and bilateral
carpal tunnel syndrome.
Syam Stoll, M.D., performed an Independent Medical Evaluation on September 4, 2019,
in which he noted that Mr. Smith sought treatment for bilateral hand numbness six to eight years
ago. Mr. Smith stated that his job as a continuous miner operator required him to use his hands
and wrists in extension, which caused discomfort. Dr. Stoll’s examination showed positive Tinel’s
sign in both of his elbow cubital tunnels. The left wrist showed positive Tinel’s sign, but Phalen’s
sign was negative. The right wrist showed positive Tinel’s and Phalen’s signs. Dr. Stoll diagnosed
bilateral carpal tunnel syndrome. He found that Mr. Smith was previously diagnosed with bilateral
carpal tunnel syndrome in 2010, prior to working for Brooks Run South Mining. Dr. Stoll opined
that Mr. Smith’s bilateral carpal tunnel syndrome was not the result of his job duties as a
continuous miner operator or a shuttle car operator.
Jeffrey Pritchard, PA, from Family Healthcare Associates, testified in an October 8, 2019,
deposition that the main cause of carpal tunnel syndrome is repetitive motion. Prolonged extension
can also contribute to carpal tunnel syndrome. Mr. Pritchard opined that Mr. Smith’s work duties
caused his bilateral carpal tunnel syndrome. He also stated that the longer one is exposed to
repetitive workplace activities, the more carpal tunnel syndrome progresses.
The Office of Judges affirmed the claims administrator’s rejection of the claim in its
November 17, 2020, Order. It found that the evidence establishes that Mr. Smith has carpal tunnel
syndrome, as revealed on multiple EMGs and physician examinations. The Office of Judges stated
that the evidence also shows that Mr. Smith’s bilateral carpal tunnel syndrome preexisted his
employment with Brooks Run South Mining. The Employer’s Report of Injury and Mr. Smith’s
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testimony establish that he began working for Brooks Run South Mining on April 21, 2014. On
July 21, 2010, Mr. Smith complained of bilateral hand numbness and was diagnosed with carpal
tunnel syndrome, which was confirmed by a September 22, 2010, EMG.
The Office of Judges stated that in Spartan Mining Company v. John Anderson, No. 17-
1003, 2018 WL 2306287 (W. Va. May 21, 2018)(memorandum decision), this Court held that
when a diagnosis of carpal tunnel syndrome predates the claimant’s employment, the condition
cannot be causally related to the work activities of the employer. Mr. Smith argued that the instant
case is distinguishable from Spartan. The Office of Judges found that the facts of the instant claim
are stronger than those in Spartan. In Spartan, Mr. Anderson was diagnosed with carpal tunnel
syndrome prior to beginning employment for the chargeable employer. In the instant case, not only
was Mr. Smith diagnosed with carpal tunnel syndrome before beginning employment with Brooks
Run South Mining, but the diagnosis was confirmed by an EMG.
Mr. Smith also argued that per West Virginia Code § 23-4-1, he should receive benefits for
a perceptible aggravation of an occupational disease. However, the Office of Judges determined
that because Mr. Smith’s preexisting carpal tunnel syndrome was never held compensable, there
can be no aggravation of an occupational disease. The claims administrator’s rejection of the claim
was affirmed. The Board of Review adopted the findings of fact and conclusions of law of the
Office of Judges and affirmed its Order on May 21, 2021.
After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. For an injury to be compensable it must be a personal injury that
was received in the course of employment, and it must have resulted from that employment.
Barnett v. State Workmen’s Comp. Comm’r, 153 W. Va. 796, 172 S.E.2d 698 (1970). The evidence
shows that Mr. Smith suffered from carpal tunnel syndrome prior to his employment with Brooks
Run South Mining. Further, the condition was not previously held compensable, and therefore, an
aggravation of the condition cannot be held compensable.
Affirmed.
ISSUED: October 18, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice C. Haley Bunn
DISSENTING:
Justice William R. Wooton
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Justice William R. Wooton would set the case for Rule 20 oral argument.
WOOTON, Justice, dissenting:
I respectfully dissent to the majority’s affirmance of the denial of compensability of
petitioner’s carpal tunnel syndrome. I would have placed this matter on the Rule 20 argument
docket for a closer examination of whether it was necessary for petitioner to have previously filed
for workers’ compensation for his previously diagnosed carpal tunnel syndrome for it to be
determined to be an “occupational” injury and therefore potentially qualify for an aggravation of
that injury pursuant to West Virginia Code § 23-4-1(b). The majority dispositively and summarily
concludes, without analysis, that petitioner must have previously sought and obtained a
compensability ruling for his carpal tunnel syndrome for his worsening symptoms to constitute an
aggravated “occupational” disease. There is ample record support for the conclusion that
petitioner’s condition was caused by his many years of coal mining work, but he simply did not
previously seek workers’ compensation and obtain a compensability determination; this does not
make his condition any more or less “occupational” under the statutory definition. See W. Va.
Code § 23-4-1(f) (“[O]ccupational disease means a disease incurred in the course of and resulting
from employment.”).
Accordingly, I believe the issue is deserving of Rule 20 consideration and treatment and
therefore respectfully dissent.
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