Christopher Adams v. United Parcel Service, Inc. ( 2022 )


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  •        IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
    FILED
    CHRISTOPHER ADAMS,                                                          November 15, 2022
    Claimant Below, Petitioner                                                    EDYTHE NASH GAISER, CLERK
    INTERMEDIATE COURT OF APPEALS
    OF WEST VIRGINIA
    vs.)   No. 22-ICA-16          (JCN: 2022004606)
    UNITED PARCEL SERVICE, INC.,
    Employer Below, Respondent
    MEMORANDUM DECISION
    Petitioner Christopher Adams appeals the July 13, 2022, order of the West Virginia
    Workers’ Compensation Board of Review (“Board”). Respondent United Parcel Service,
    Inc. (“UPS”) filed a timely response.1 Petitioner did not file a reply brief. The issue on
    appeal is whether the Board erred in affirming the September 7, 2021, order of the claim
    administrator finding that Mr. Adams did not sustain carpal tunnel syndrome (“CTS”) in
    the course of and resulting from his employment.
    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 lower tribunal’s order is appropriate
    under Rule 21 of the Rules of Appellate Procedure.
    Mr. Adams has been employed by UPS in various positions since March 1991. On
    April 20, 2020, he sustained an injury to his left shoulder while he was working as a feeder
    driver. On that date, he was unhooking a dolly trailer from a hitch and felt a sharp, stabbing
    pain in his mid-thoracic and lumbar spine and throughout his neck and left shoulder. He
    stopped working immediately after the injury and sought treatment. He was diagnosed with
    a left shoulder joint dissociation, strain of the left biceps tendon, and a cervical sprain/strain
    injury. He was treated by chiropractor Michael Kominsky, D.C., underwent an MRI of the
    left shoulder and cervical spine on June 27, 2020, and subsequently came under the care of
    1
    Petitioner is represented by Reginald D. Henry, Esq. Respondent is represented by
    Jeffrey B. Brannon, Esq.
    1
    John Jasko, M.D., an orthopedic surgeon, who performed surgery to repair a tear in the
    cartilage of his left shoulder joint.2
    Mr. Adams testified that after surgery, he continued to have a constant burning and
    tingling sensation that ran from the base of his neck to his fingertips on both hands.
    EMG/nerve conduction studies showed mild right-sided ulnar neuropathy at the elbow and
    mild left-sided CTS. Dr. Kominsky completed a workers’ compensation report of
    occupational disease for CTS, opining that the conditions of CTS of the left upper limb and
    lesion of the ulnar nerve of the right upper limb were the direct result of an occupational
    disease from chronic repetitive flexion and extension of the wrists. The workers’
    compensation report reflected that Mr. Adams’ last exposure was April 20, 2020, and that
    he had stopped working on April 21, 2020.
    Mr. Adams was deposed on January 27, 2022, and testified about a number of
    physical tasks he routinely performed at work that he described as repetitive and forceful,
    including using hand cranks on trailers; cranking legs up and down; wrapping and twisting
    chains; pulling straps, light cords, chains, and air hoses; driving trucks using manual
    steering and manual transmissions; and unloading, sorting, and picking up packages.3 He
    also testified that he had no symptoms of CTS in his hands prior to the incident of April
    20, 2020, and that despite not working since that date, he developed symptoms that
    progressed over time. He stated that he had numbness, tingling, ice cold sensations, burning
    sensations, and shooting pulsations that ran down his arms through all ten fingers on both
    hands. He also related the symptoms in his hands to his back and neck and said that he had
    shooting sensations that ran up and down his spine and could cause headaches, blurred
    vision, and dizziness, in addition to the loss of sensation in his hands.
    On September 7, 2021, the claim administrator denied Mr. Adams’ application for
    CTS benefits. Mr. Adams protested. In response, on March 7, 2022, David Soulsby, M.D.
    reviewed Mr. Adams’ medical records on behalf of UPS and rendered an opinion regarding
    the CTS claim, concluding that Mr. Adams does not have CTS. Dr. Soulsby explained that
    CTS is primarily a clinical diagnosis which requires both characteristic symptoms and
    physical examination findings. Dr. Soulsby opined that Dr. Kominsky’s diagnosis
    appeared to rely on the EMG study criteria alone, which can be abnormal in a significant
    percentage of the population. Dr. Soulsby cited a study finding that as many as 46% of
    2
    Petitioner filed a separate workers’ compensation claim related to the April 20,
    2020, occupational injury that is not at issue in this appeal.
    3
    The Board of Review failed to make detailed findings of fact in its order regarding
    Mr. Adams’ testimony describing the repetitive and forceful physical tasks he performed
    with his hands and wrists during his employment. Nevertheless, this Court has reviewed
    the deposition testimony and determines that it supports the Board’s ultimate conclusion.
    2
    patients had a false positive electrodiagnostic test for CTS. Moreover, he noted that Mr.
    Adams’ records did not show a typical history of CTS symptoms or consistent physical
    findings. For example, Mr. Adams reported symptoms in all five digits in both hands,
    which is not consistent with CTS. Furthermore, CTS typically has an insidious onset from
    repetitive motion or overuse, not from a single specific work injury as was experienced in
    this claim. In addition, if the CTS symptoms were from an occupational repetitive motion
    or overuse, they would be expected to improve when the provocative work was removed.
    In contrast, Mr. Adams was not working when his symptoms began, and his symptoms
    continued to progress and worsen while he remained off work. Mr. Adams’ medical records
    documented a history of degenerative disc disease in the cervical spine which, according
    to radiographic reports, was severe enough to cause foraminal stenosis sufficient to explain
    the presence of numbness and tingling in the upper extremities. Finally, Dr. Soulsby noted
    that even if Mr. Adams did have CTS, he had an additional risk factor for developing it
    that was not work-related, his morbid obesity. Based on epidemiological studies, Dr.
    Soulsby concluded that there is a 32% probability that Mr. Adams may have CTS because
    of his obesity.
    UPS submitted into the record, among other documents, Dr. Soulsby’s written
    report and the January 27, 2022, deposition transcript in which Mr. Adams admitted that
    he developed CTS symptoms only after he stopped working. By order dated July 13, 2022,
    the Board affirmed the claim administrator’s decision that Mr. Adams had not established
    that he sustained the condition of CTS in the course of and resulting from his employment.
    It is from this order that Mr. Adams now appeals.
    The standard of review applicable to this Court’s consideration of workers’
    compensation appeals has been set out under 
    W. Va. Code § 23-5
    -12a(b) (2022), as
    follows:
    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
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    (6)    Arbitrary or capricious or characterized by abuse of
    discretion or clearly unwarranted exercise of discretion.
    On appeal, Mr. Adams argues that the Board’s decision is clearly wrong and should
    be reversed because a preponderance of the evidence establishes that his bilateral CTS is
    directly related to, and developed in the course of and resulting from, his employment. Mr.
    Adams submits that he underwent appropriate diagnostic testing which resulted in a
    diagnosis of bilateral CTS. He claims he testified credibly at his deposition regarding the
    repetitive and forceful use of his hands while performing his job duties for UPS. He
    discounts the Board’s reliance on his deposition testimony characterizing Dr. Patel’s
    statement that “the majority of his problems were coming from the C5-C6 region of his
    neck.” Mr. Adams qualified his characterization by acknowledging that he is not a doctor.
    He asserts that he is not required to prove that the conditions of his employment were the
    exclusive or sole cause of his CTS, or that CTS is peculiar to one industry, work
    environment, or occupation. See Powell v. State Workmen’s Comp. Comm’r, 
    166 W. Va. 327
    , 
    273 S.E.2d 832
     (1980). Finally, Mr. Adams discredits Dr. Soulsby’s report because
    Dr. Soulsby made contradictory statements, first stating that Mr. Adams doesn’t have CTS,
    then stating that his CTS was likely due to his obesity.
    Upon review of the record, this Court finds no error or abuse of discretion in the
    Board’s analysis or conclusions. The workers’ compensation treatment guidelines for CTS
    set forth a series of considerations to be made in determining whether CTS is work-related,
    including a careful review of the claim history, physical examination, and appropriate
    diagnostic tests and examinations. 
    W. Va. Code R. § 85-20-41.1
     (2006). The guidelines
    include an assessment of diagnostic accuracy, possible confounding conditions, work
    setting, and the duration of the symptoms when determining causation, keeping in mind
    that a high prevalence of concurrent medical conditions can cause CTS in persons without
    regard to any particular occupation. 
    W. Va. Code R. §§ 85-20-41.2
     to 85-20-41.5 (2006).
    West Virginia Code § 23-4-1(f) (2021) sets forth the criteria that must be met to establish
    an occupational disease, such as CTS. The disease must be incurred in the course of and
    resulting from employment, and cannot be an ordinary disease of life to which the general
    public is exposed outside of employment unless it is apparent:
    (1) That there is a direct causal connection between the
    conditions under which work is performed and the
    occupational disease, (2) that it can be seen to have followed
    as a natural incident of the work as a result of the exposure
    occasioned by the nature of the employment, (3) that it can be
    fairly traced to the employment as the proximate cause, (4) that
    it does not come from a hazard to which workmen would have
    been equally exposed outside of the employment, (5) that it is
    incidental to the character of the business and not independent
    of the relation of an employer and employee, and (6) that it
    4
    must appear to have had its origin in the risk connected with
    the employment and to have flowed from that source as a
    natural consequence, though it need not have been foreseen or
    expected before its contraction.
    Id. In the instant case, the Board found that the evidence did not establish a claim for
    occupational CTS using the above criteria. Mr. Adams testified that he did not work after
    April 20, 2020, and that he had no symptoms in his hands during the preceding twenty-
    nine years of employment with UPS. The medical records submitted showed no previous
    signs, symptoms, or diagnoses of CTS before the April 20, 2020, injury. Mr. Adams
    acknowledged that his treating physician, Dr. Patel, “emphasized” that most of his
    problems were coming from his cervical spine, which correlates with Dr. Soulsby’s finding
    that his degenerative disc condition in his cervical spine was severe enough to cause the
    numbness and tingling Mr. Adams was experiencing in his arms and hands. Mr. Adams
    also testified that his symptoms were worsening with time and involved all ten fingers,
    neither of which is consistent with a typical symptom of CTS.
    Finally, despite Mr. Adams’ contention, we find that Dr. Soulsby’s opinions were
    not contradictory, and clearly state that Mr. Adams did not meet the diagnostic criteria for
    CTS related to his employment. Dr. Soulsby opined that if Mr. Adams had CTS caused by
    repetitive tasks performed at work, one would expect his symptoms to improve while he
    was not working. The fact that Mr. Adams’ symptoms continued to worsen after he
    stopped working weighs heavily against him establishing an occupational disease pursuant
    to the criteria outlined in West Virginia Code § 23-4-1(f). Based on the foregoing, we find
    that Mr. Adams has failed to demonstrate that the Board was clearly wrong in affirming
    the claim administrator’s order finding that he did not sustain carpal tunnel syndrome in
    the course of and resulting from his employment.
    Accordingly, we affirm.
    Affirmed.
    ISSUED: November 15, 2022
    CONCURRED IN BY:
    Chief Judge Daniel W. Greear
    Judge Thomas E. Scarr
    Judge Charles O. Lorensen
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Document Info

Docket Number: 22-ica-16

Filed Date: 11/15/2022

Precedential Status: Precedential

Modified Date: 12/23/2022