Marshall employee's Workers' Comp claim given chance to develop

CHARLESTON – The state high court has reversed and remanded a Marshall University administrative support employee’s Workers’ Compensation rejection, sending the carpal tunnel claim back to the Workers’ Compensation Board of Review for “proper consideration.” The Court issued the 3-1 decision on May 14. Justices Robin Jean Davis, Margaret L. Workman and Allen H. Loughry II voted for the reversal and Chief Justice Brent D. Benjamin dissented. Justice Menis E. Ketchum was disqualified from hearing the case. Ruby A. Dean has worked in administrative support for Marshall University for approximately 30years. On Oct. 1, 2009, Dean submitted a claim for Workers’ Compensation, alleging that ergonomically incorrect office conditions had caused her to develop bilateral cubital and carpal tunnel syndrome. Her claim was summarily rejected by the claims administrator prior to diagnostic testing that could have proved that her claim was valid, the opinion states. The Workers’ Compensation Board of Judges reversed the claims administrator’s rejection, finding that Dean’s claim was compensable, but the Board of Review reversed the Board of Judges' reversal, and reinstated the claims administrator’s decision. The Board of Review based its decision on its interpretation of applicable state rules that indicated that Dean’s clerical duties did not place her in an occupation that had a high risk for developing carpal tunnel syndrome. Dean then appealed to the state Supreme Court. “The Order of the Board of Review is clearly the result of an erroneous interpretation of West Virginia Code of State Rules § 85-20-41.5,” the opinion states. “Although the regulation singles out certain occupations which are at a high risk for carpal tunnel syndrome, it does not preclude a clerical employee from proving her case for carpal tunnel syndrome. “Ms. Dean was not permitted to develop her claim. The record is not sufficient to determine whether the Ms. Dean has a compensable injury based on cubital or carpal tunnel syndrome. “The claims administrator’s decision on March 10, 2010, came prior to an exact diagnosis of Ms. Dean’s condition and prevented her from properly developing the record. The Board of Review should have remanded Ms. Dean’s claim for the production of additional evidence, including an EMG in accordance with the diagnostic recommendations of West Virginia Code of State Rules § 85-20-41.7(d)(2) (2006). “For the foregoing reasons, we find that the decision of the Board of Review is clearly the result of erroneous conclusions of law. Therefore, the decision of the Board of Review is reversed, and the case is remanded with instructions to require an electromyography (EMG) test and any additional testing sufficient to make a proper consideration of Ms. Dean’s claim.”

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