David L. Poling v. Ohio Power Company ( 2019 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
DAVID L. POLING, FILED
Claimant Below, Petitioner November 1, 2019
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
vs.) No. 18-0924 (BOR Appeal No. 2050179) OF WEST VIRGINIA
(Claim No. 2002046529)
OHIO POWER COMPANY,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner David L. Poling, by Counsel J. Robert Weaver, appeals the decision of the West
Virginia Workers’ Compensation Board of Review (“Board of Review”). Ohio Power Company,
by Counsel Henry C. Bowen, filed a timely response.
The issue on appeal is the residual amount of permanent partial disability for bilateral
carpal tunnel syndrome and lateral epicondylitis in this claim. The claims administrator granted
Mr. Poling a 0% permanent partial disability award for carpal tunnel syndrome on December 18,
2012. The Workers’ Compensation Office of Judges (“Office of Judges”) reversed the claims
administrator’s decision and granted Mr. Poling an additional 2% permanent partial disability
award for the condition of lateral epicondylitis in an Order dated January 1, 2015. This appeal
arises from the Board of Review’s Order dated September 20, 2018, in which the Board affirmed
the decision of the 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. Poling worked more than twenty years as a mechanic for Ohio Power Company. His
job involved lifting or carrying heavy equipment. According to Mr. Poling, repetitive motion of
both hands resulted in pain, numbness, tingling, and the loss of strength. He was diagnosed with
bilateral carpal tunnel syndrome on February 25, 2002. The claims administrator held the claim
compensable for the condition of carpal tunnel syndrome on March 28, 2002.
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Mr. Poling underwent carpal tunnel release at Wheeling Hospital on October 1, 2002. He
was evaluated by Jack S. Koay, M.D., on March 11, 2003. Dr. Koay’s impression of Mr. Poling’s
condition was status post bilateral carpal tunnel release with some mild residual clinical problems,
including weakness along the two point discrimination along the median nerve distribution and
scar formation on both palms. Dr. Koay found Mr. Poling to be at his maximum degree of medical
improvement and recommended a permanent partial disability rating of 6% for each hand for a
total of 12%. By Order of the claims administrator, Mr. Poling was granted a 12% award on March
25, 2003. Mr. Poling continued to have issues following surgery.
Although Mr. Poling had successful carpal tunnel release surgery, his symptoms gradually
returned. He was experiencing nocturnal numbness and numbness in his last three fingers. A 2006
EMG found epicondylitis with the left epicondylitis greater than the right. On March 21, 2006, the
claims administrator updated the compensable conditions in the claim to include lateral
epicondylitis.
An independent medical evaluation was conducted by ChuanFang Jin, M.D., on November
28, 2012, to evaluate Mr. Poling for a subsequent lumbar strain injury. During the examination,
Mr. Poling complained of back pain, as well as numbness in his hands and fingers due to carpal
tunnel syndrome. In her clinical impression, Dr. Jin noted Mr. Poling’s history of bilateral carpal
tunnel syndrome release, and found clinical evidence of medial epicondylitis and ulnar neuropathy
based on his examination. Dr. Jin questioned whether his epicondylitis and carpal tunnel syndrome
is causally related to his employment. Dr. Jin concluded that Mr. Poling has 1% whole person
impairment attributable to carpal tunnel syndrome. Because he received a prior 12% award for
bilateral carpal tunnel syndrome, Dr. Jin stated that no additional impairment is indicated or
warranted. Regarding epicondylitis, Dr. Jin did not find medical evidence to support permanent
impairment for bilateral epicondylitis. By Order of the claims administrator dated December 18,
2012, Mr. Poling was granted 0% permanent partial disability based on the November 28, 2012,
report of Dr. Jin. Mr. Poling protested the claims administrator’s decision.
Mr. Poling was referred to Bruce A. Guberman, M.D., for an independent medical
evaluation. On October 10, 2013, Dr. Guberman reported that Mr. Poling’s chief complaint was
for his carpal tunnel syndrome and lateral epicondylitis. Dr. Guberman concluded that Mr. Poling
had 13% impairment of the whole person for his right carpal tunnel syndrome and right lateral
epicondylitis. He found 10% impairment of the whole person for Mr. Poling’s left carpal tunnel
syndrome and left lateral epicondylitis. Utilizing the combined values chart, he arrived at a total
of 22% whole person impairment as a result of bilateral carpal tunnel syndrome and bilateral
epicondylitis. Because he was previously granted a 12% permanent partial disability award, Dr.
Guberman found a total of 10% impairment for the left arm aspect of the injury, including the left
carpal tunnel syndrome and left lateral epicondylitis.
By Order dated January 7, 2015, the Office of Judges reversed the December 18, 2012,
claims administrator’s Order. The Office of Judges awarded 0% permanent partial disability for
epicondylitis and granted Mr. Poling an additional 2% permanent partial disability based on the
findings of Dr. Guberman. Because the claim was not reopened on the theory of progression or
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aggravation of Mr. Poling’s carpal tunnel syndrome, the Office of Judges did not consider Dr.
Guberman’s recommendation for an additional award. The Office of Judges stated that carpal
tunnel syndrome impairment is to be determined by first applying the criteria of the American
Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993), and then
adjusting that to the impairment ranges found in the West Virginia Code of State Rules § 85-20-
64.5 (2006),1 which establishes a range of awards for impairment due to carpal tunnel syndrome
as 0% - 6% for each affected hand. Any impairment rating in excess of 6% will be reduced to 6%
under § 85-20-64.5. Mr. Poling appealed to the Board of Review.
In an Order dated September 20, 2018, the Board of Review found that even if the issue of
permanent partial disability being protested includes bilateral carpal tunnel syndrome, the evidence
does not support an additional permanent partial disability award for carpal tunnel syndrome. The
Board of Review noted that Mr. Poling had been awarded 12% impairment for carpal tunnel
syndrome (6% for each hand) on March 25, 2003. Because Mr. Poling had been awarded the
maximum amount of permanent partial disability impairment allowed under West Virginia Code
of State Rules § 85-20-64.5, the Board of Review reasoned that he is not entitled to an additional
8% permanent partial disability award for bilateral carpal tunnel syndrome. The Board of Review
did not err in concluding that Mr. Poling failed to establish that he is entitled to an additional award
for his bilateral carpal tunnel syndrome.
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 1, 2019
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison
1
In Davies v. West Virginia Office of the Ins. Com’r, 227 W. Va. 330, 708 S.E.2d 524 (2011), this
Court held that West Virginia Code of State Rules § 85-20-64.5 was invalid as it applied to Table
16 of the American Medical Association’s, Guides to the Evaluation of Permanent Impairment,
(4th ed. 1993). However, in Dingess v. West Virginia Office of Insurance Commissioner, No.
35662, 2012 WL 6050571 (W. Va. Dec. 5, 2012) (memorandum decision), the Court approved of
impairment ratings calculated using Tables 11, 12, and 15, which were then modified to fit within
the impairment range of impairment found in § 85-20-64.5. Dr. Guberman reported using Tables
11, 12, and 15 to rate carpal tunnel syndrome.
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