Edward C. Wilke v. Wal-Mart Associates, Inc. ( 2014 )

STATE OF WEST VIRGINIA
FILED
SUPREME COURT OF APPEALS November 10, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
EDWARD C. WILKE, OF WEST VIRGINIA
Claimant Below, Petitioner
vs.) No. 13-0905 (BOR Appeal No. 2048195)
(Claim No. 2013002141)
WAL-MART ASSOCIATES, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Edward C. Wilke, by Jonathan C. Bowman, his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. Wal-Mart Associates, Inc., by
Karin L. Weingart, its attorney, filed a timely response.
This appeal arises from the Board of Review’s Final Order dated August 6, 2013, in
which the Board reversed a March 8, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s August 24, 2012,
decision which rejected the claim for bilateral carpal tunnel syndrome. 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. Wilke, a bay supervisor, alleges that he developed carpal tunnel syndrome in the
course of his employment. An EMG conducted on July 30, 2012, showed that Mr. Wilke had
bilateral carpal tunnel syndrome, and a treatment note by Vic Wood, D.O., indicates that he
began experiencing symptoms when he switched jobs in May of 2012. Mr. Wilke stated in a
letter to the Office of Judges that he switched jobs in April of 2012 and his symptoms developed
approximately one month later. He asserted that his job is repetitive because he has to screw and
unscrew oil filters, use a wrench, and replace tires. A Wal-Mart Associates, Inc., job description
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of Mr. Wilke’s employment duties indicates his job requires grasping, turning, and manipulating
objects of varying sizes and weights. It also requires fine motor skills. He has to be able to lift,
move, and carry up to fifty pounds without assistance.
The claims administrator rejected the claim on August 24, 2012. The Office of Judges
reversed the claims administrator’s decision and held the claim compensable for bilateral carpal
tunnel syndrome in its March 8, 2013, Order. It found that a preponderance of the evidence
indicates that Mr. Wilke has bilateral carpal tunnel syndrome, which is occupational in nature.
West Virginia Code of State Rules § 85-20-41.4 (2006) lists several non-work-related factors
that can cause carpal tunnel syndrome; however, no evidence was offered to indicate any of
those factors exist in the instant claim. Mr. Wilke testified that he is a supervisor and he also has
to perform service work including changing oil and tires. The Office of Judges found that the
fact that his symptoms began weeks after starting his new job duties does not mean that his
condition is non-occupational. Further, the Office of Judges stated that the symptoms began
weeks after beginning the new job and continued to worsen over the next four years. The Office
of Judges held that Mr. Wilke provided a credible scenario as to how his job duties caused him to
develop carpal tunnel syndrome and no evidence was presented to contradict his assertion.
The Board of Review reversed the Office of Judges’ Order and reinstated the claims
administrator’s decision rejecting the claim in its August 6, 2013, decision. The Board of Review
found that the Office of Judges materially misstated the evidentiary record. The Office of Judges
stated that Mr. Wilke’s symptoms began a few weeks after beginning his new job and worsened
over the following four years. However, the Board of Review found that Mr. Wilke stated in his
letter to the Office of Judges that his symptoms began a month after performing his new job
duties, which began in April of 2012. The Board of Review also found that a treatment note by
Dr. Wood dated August 8, 2012, indicates that he diagnosed arthropathy and carpal tunnel
syndrome, but he did not provide an opinion as to the etiology of either condition. Also, the
physician who completed the claim application did not indicate that Mr. Wilke’s condition was
the result of an occupational injury or disease.
On appeal, Mr. Wilke argues that he presented sufficient evidence to show that he
developed carpal tunnel syndrome as a result of his employment. Wal-Mart Associates, Inc.,
asserts that there are no medical reports of record to indicate a causal connection between Mr.
Wilke’s carpal tunnel syndrome and his employment duties. After review, this Court agrees with
the reasoning and conclusions of the Board of Review. There is no evidence of record to indicate
a causal connection between Mr. Wilke’s job duties and his development of carpal tunnel
syndrome. Further, West Virginia Code of State Rules § 85-20-41.6 (2006) provides that work-
related carpal tunnel syndrome is associated with years of repetitive activity. Mr. Wilke stated in
his letter that his symptoms began approximately one month after he began his new job. Carpal
tunnel syndrome that develops within weeks or months of exposure suggests a pre-existing
condition.
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
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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: November 10, 2014
CONCURRED IN BY:
Chief Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II
DISSENTING:
Justice Margaret L. Workman
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