Pamela D. Durst v. W. Va. Office of Insurance Commissioner/Felman (Memorandum Decision)
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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS FILED June 29, 2012 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA PAMELA D. DURST, Petitioner vs.) No. 11-0002 (BOR Appeal No. 2044651) (Claim No. 2009090399) WEST VIRGINIA OFFICE OF INSURANCE COMMISSIONER and FELMAN PRODUCTION, INC., Respondent MEMORANDUM DECISION Petitioner, Pamela D. Durst, by Edwin H. Pancake, her attorney, appeals the Board of Review order denying compensability for carpal tunnel syndrome. Felman Production, Inc. (hereinafter Freeman ), by T. Jonathan Cook, its attorney, filed a timely response. This appeal arises from the West Virginia Workers Compensation Board of Review s Final Order dated December 6, 2010, in which the Board affirmed a May 13, 2010, Order of the Workers Compensation Office of Judges. In its Order, the Office of Judges affirmed the claims administrator s denial of compensability for carpel tunnel syndrome. The appeal was timely filed by the petitioner and a response was filed by Felman Production, Inc. The Court has carefully reviewed the records, written arguments, and appendices contained in the petition, and the case is mature for consideration. Having considered the petition, response, and the relevant decision of the lower tribunal, the Court is of the opinion that the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the Court determines that there is no prejudicial error. This case does not present a new or significant question of law. For these reasons, a memorandum decision is appropriate under Rule 21 of the Revised Rules of Appellate Procedure. Ms. Durst asserts she suffers from work-related carpel tunnel syndrome resulting from her work duties of busting slag with a shovel and rebar. Dr. John Ellison evaluated Ms. Durst and opined the carpel tunnel syndrome resulted from an occupational injury causing a disability. The medical records establish Ms. Durst has a history of morbid obesity, hypothyroidism, and a diagnosis 1 of carpel tunnel syndrome in 2004. Dr. Marsha L. Bailey conducted an independent medical evaluation and opined Ms. Durst does not suffer from work-related carpel tunnel syndrome. The Office of Judges held the preponderance of the evidence does not establish that Ms. Durst suffers from work-related carpel tunnel syndrome. The OOJ found that A review of the evidence establishes inconsistencies between [Ms. Durst s] testimony, [Ms. Durst s] treating physicians records, and [Ms. Durst s] actual job description. The Office of Judges further held Ms. Durst was diagnosed with carpel tunnel syndrome in 2004, confirmed by EMG studies, by Dr. Ellison and Dr. Hanington. The Office of Judges, too, found no basis for finding Ms. Durst s carpel tunnel syndrome is work-related and compensable, or for disputing the Claims Administrator s findings. The Board of Review reached the same reasoned conclusions in affirming the Office of Judges in its decision of December 6, 2010. For the foregoing reasons, we find that the decision of the Board of Review is not clearly the result of erroneous conclusions of law, or upon the Board's material misstatement or mischaracterization of particular components of the evidentiary record. Therefore, the Court affirms the Board of Review order finding Ms. Durst s carpel tunnel syndrome is not work-related and, therefore, not compensable. Affirmed. ISSUED: June 29, 2012 CONCURRED IN BY: Chief Justice Menis E. Ketchum Justice Robin J. Davis Justice Brent D. Benjamin Justice Margaret L. Workman Justice Thomas E. McHugh 2
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