STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
CONSOL OF KENTUCKY, INC., FILED
Employer Below, Petitioner November 6, 2020
EDYTHE NASH GAISER, CLERK
vs.) No. 19-0682 (BOR Appeal No. 2054082) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
(Claim No. 2019002990)
ROGER MAYNARD,
Claimant Below, Respondent
MEMORANDUM DECISION
Petitioner Consol of Kentucky, Inc., by Counsel James W. Heslep, appeals the decision of
the West Virginia Workers’ Compensation Board of Review (“Board of Review”). Roger
Maynard, by Counsel Kendal E. Partlow, filed a timely response.
The issue on appeal is compensability. The claims administrator rejected the claim on
September 28, 2018. The Workers’ Compensation Office of Judges (“Office of Judges”) reversed
the decision in its March 19, 2019, Order and held the claim compensable for left carpal tunnel
syndrome and bilateral cubital tunnel syndrome. The Order was affirmed by the Board of Review
on July 19, 2019.
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.
Mr. Maynard, a coal miner, asserts that he developed left carpal tunnel syndrome and
bilateral cubital tunnel syndrome in the course of and resulting from his employment. He was
treated for upper extremity symptoms on July 9, 2017, at Three Rivers Medical Clinic. He
indicated that he had recently retired and reported pain in his right shoulder. On examination, Mr.
Maynard’s right-hand grip strength was weak. He was unable to raise his right arm above his head
and had tenderness in the medial nerve.
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Mr. Maynard sought treatment from Stanley Tao, M.D., with Scott Orthopedic Center on
July 31, 2017. Dr. Tao diagnosed right shoulder impingement syndrome and bilateral cubital
tunnel syndrome. On August 8, 2017, Mr. Maynard reported right and small finger numbness as
well as neck pain. He also had weakness in his right arm. Dr. Tao diagnosed cubital tunnel
syndrome. Mr. Maynard underwent right cubital tunnel release on August 24, 2017. On June 8,
2018, an EMG showed mild to moderate left carpal tunnel syndrome and mild right carpal tunnel
syndrome.
Mr. Maynard submitted an Employees’ and Physicians’ Report of Injury on July 19, 2018,
indicating he injured his wrists and elbows due to repetitive stress from operating machinery. The
physicians’ section indicates he developed an occupational disease to his bilateral hands and
extremities. On September 19, 2018, Rachel Baisden, PA, completed a carpal tunnel syndrome
report in which she stated that Mr. Maynard’s symptoms were bilateral. The claims administrator
rejected the claim on September 28, 2018.
Bruce Guberman, M.D., performed an independent medical evaluation on November 6,
2018, in which he noted that Mr. Maynard denied having diabetes. Dr. Guberman diagnosed
bilateral cubital tunnel syndrome and left carpal tunnel syndrome. He attributed the conditions to
Mr. Maynard’s job duties. Dr. Guberman stated that he considered confounding conditions but
ultimately concluded that Mr. Maynard’s conditions resulted from his employment. Dr. Guberman
assessed 8% impairment for right cubital tunnel syndrome and 12% for left cubital and carpal
tunnel syndromes.
On December 4, 2018, Mr. Maynard testified in a hearing before the Office of Judges that
he worked as a heavy equipment operator for the employer and others before that. He had been a
heavy equipment operator since 1980. Mr. Maynard stated that he was required to use his hands,
elbows, and wrists to perform forceful movements.
The Office of Judges reversed the claims administrator’s rejection of the claim and held
the claim compensable for left carpal tunnel syndrome and bilateral cubital tunnel syndrome in its
March 19, 2019, Order. It found that the claims administrator rejected the claim because half of
all carpal tunnel cases are idiopathic, confounding conditions can cause the development of carpal
tunnel syndrome, Mr. Maynard has confounding conditions, and he underwent right cubital tunnel
syndrome surgery two and a half years prior to filing for benefits. The Office of Judges found that
Mr. Maynard testified that he worked as a heavy equipment operator, which required daily use of
his upper extremities in a forceful, repetitive manner. The Office of Judges determined that his
testimony was not contradicted by any evidence of record. The Office of Judges also found that
Dr. Guberman reviewed Mr. Maynard’s job duties and his confounding conditions and still
concluded that his bilateral cubital tunnel syndrome and left carpal tunnel syndrome were work-
related.
The Office of Judges found that the claim was filed within three years of Mr. Maynard’s
date of last exposure and was therefore timely. The Office of Judges noted that the claims
administrator’s first two reasons for rejecting the claim were merely quotations from West Virginia
Code of State Rules § 85-20, and the claims administrator failed to explain how they related to Mr.
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Maynard’s case. The Office of Judges found that while the claims administrator stated that Mr.
Maynard has confounding conditions, it failed to identify the specific conditions. The Office of
Judges stated that the fact that Mr. Maynard underwent right cubital tunnel surgery prior to filing
for workers’ compensation benefits was an insufficient reason to deny the claim. The claim was
timely filed, and the Office of Judges found that it should be held compensable. The Board of
Review affirmed the Office of Judges’ Order on July 19, 2019.
After review, we agree with the Board of Review. Mr. Maynard showed that he developed
bilateral cubital tunnel syndrome and left carpal tunnel syndrome in the course of and resulting
from his employment. The physicians of record either did not render an opinion regarding causality
or found that Mr. Maynard’s conditions developed as a result of the compensable injury. Dr.
Guberman provided the only independent medical evaluation of record and found, after reviewing
Mr. Maynard’s job duties, that he developed bilateral cubital tunnel syndrome and left carpal
tunnel syndrome in the course of and resulting from his employment. His opinion is reliable and
supported by the record.
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 6, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
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