John Moore v. United Coal Company, LLC

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IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
JOHN MOORE,
Claimant Below, Petitioner
v.) No. 25-ICA-137 (JCN: 2024013637)
UNITED COAL COMPANY, LLC,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner John Moore appeals the March 7, 2025, order of the Workers’
Compensation Board of Review (“Board”). Respondent United Coal Company, LLC
(“United”) timely filed a response.1 Mr. Moore did not reply. The issue on appeal is
whether the Board erred in affirming the claim administrator’s order, which rejected the
claim.
This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). 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 Board’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
Mr. Moore was seen by Amanda Davis, PA-C at New River Health Fayetteville on
December 6, 2021. PA-C Davis noted that Mr. Moore’s A1c was elevated, that Mr. Moore
admitted he had not been watching his diet and had gained a considerable amount of
weight, and that he had not used his glucometer for a year or two. The diagnoses were
vitamin D deficiency and type 2 diabetes mellitus without complication.
Mr. Moore, an underground coal miner, completed an Employees’ and Physicians’
Report of Occupational Injury or Disease form dated December 12, 2023. Mr. Moore
indicated that he sustained an injury to his hands and wrists while working in the coal mines
for years using high-impact and vibrating tools. The date of last exposure was listed as
March 20, 2013. The physicians’ portion of the form was signed by Michael Kominsky,
D.C., and lists the diagnosis as bilateral median nerve compression of the wrists.
1 Mr. Moore is represented by Reginald D. Henry, Esq., and Lori J. Withrow, Esq.
United is represented by H. Dill Battle III, Esq.
FILED
September 30, 2025
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

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On December 12, 2023, Dr. Kominsky performed an EMG/NCS and reported that
the study was abnormal with electrophysiological evidence of median nerve neuropathy of
the right and left wrists affecting sensory fibers and motor fibers, consistent with bilateral
carpal tunnel syndrome (“CTS”). There was no evidence of an acute nerve lesion. Dr.
Kominsky assessed occupation-related bilateral median nerve neuropathy at the wrists and
occupational bilateral CTS. Dr. Kominsky opined that Mr. Moore’s occupational
environment is directly responsible for and related to these conditions, specifically his use
of numerous high-impact tools such as wrenches, rock drills, impact hammers, and
hydraulic drills. In addition, Dr. Kominsky indicated that Mr. Moore frequently used a
sledgehammer, which has caused extensive damage to the median nerve at the wrist
producing the symptoms of numbness, tingling, and weakness that began over the years
of Mr. Moore’s employment and progressively worsened.
Mr. Moore completed a CTS Claimant Questionnaire dated February 1, 2024. Mr.
Moore stated that his job title was mine foreman, scoop man, and night move crew. Mr.
Moore indicated that he experienced pain, tingling, numbness, fatigue, loss of coordination,
and difficulty opening or closing his hand. Mr. Moore stated that he had high blood
pressure, but he did not respond to the question regarding whether he had diabetes.
Regarding his job duties, Mr. Moore indicated that he used a hammer, screwdriver, jack
hammer, and drill.
On February 26, 2024, the claim administrator rejected the claim, on the basis that
the preponderance of the medical evidence does not support work-related CTS. Mr. Moore
protested this order to the Board.
On September 11, 2024, Mr. Moore was deposed regarding his claim. Mr. Moore
testified that he started working for United in 2011, and that he worked there until March
20, 2013. Mr. Moore testified that he used his hands, wrists, and fingers in a forceful and
repetitive manner while working for United, and that he began to notice symptoms in his
last few years of working as a coal miner. Mr. Moore testified that from approximately
2004 to 2010, he worked for an employment contracting company where he worked
temporary jobs at a number of mine sites, and that he used tools such as impact wrenches,
jackhammers, and hydraulic drills.
Austin Nabet, D.O., performed an independent medical evaluation of Mr. Moore on
November 15, 2024. Dr. Nabet noted that Mr. Moore worked at United for two years and
last worked on March 20, 2013. Mr. Moore denied performing any one task on a repetitive
basis for a continuous amount of time up to twenty hours per week. Dr. Nabet opined that
Mr. Moore’s diagnosis of bilateral CTS is not due to occupational exposure at United.
Instead, Dr. Nabet stated that he would strongly correlate Mr. Moore’s diagnosis of
bilateral CTS to his poorly controlled diabetes with a hemoglobin A1c of 8.1. He further
noted that diabetes is one of the strongest risk factors for the development of CTS.

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On March 7, 2025, the Board affirmed the claim administrator’s order rejecting the
claim. The Board found that Mr. Moore did not establish by a preponderance of the
evidence that he developed bilateral CTS in the course of and resulting from his
employment. It is from this order that Mr. Moore now appeals.
Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in
part, 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
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
Syl. Pt. 2, Duff v. Kanawha Cnty. Comm’n, 250 W. Va. 510, 905 S.E.2d 528 (2024).
On appeal, Mr. Moore argues that the Board decision is clearly wrong because the
preponderance of the evidence establishes that he sustained CTS in the course of and
resulting from his employment. Mr. Moore also asserts that the Board erred in disregarding
Dr. Kominsky’s report simply because Dr. Nabet discussed his diabetes.
In order for a workers’ compensation claim to be held compensable, three elements
must coexist: (1) a personal injury, (2) received in the course of employment, and (3)
resulting from that employment. Syl. Pt. 1, Barnett v. State Workmens’ Comp. Comm’r,
153 W. Va. 796, 172 S.E.2d 698 (1970). Also, “[i]n determining whether an injury resulted
from a claimant’s employment, a causal connection between the injury and employment
must be shown to have existed.” Syl. Pt. 3, Emmel v. State Comp. Dir., 150 W. Va. 277,
145 S.E.2d 29 (1965).
Further, West Virginia Code § 23-4-1(f) provides, in part:
a disease is considered to have been incurred in the course of, or to have
resulted from, the employment only if it is apparent to the rational mind, upon

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consideration of all the circumstances: (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
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 the employer and employee; and (6) that it appears to have had its origin
in a 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.
Here, the Board concluded that Mr. Moore did not establish by a preponderance of
the evidence that he developed bilateral CTS in the course of and resulting from his
employment with United. The Board found that Dr. Nabet’s report, which attributed Mr.
Moore’s CTS to diabetes, was persuasive.2 The Board weighed the factors set forth in West
Virginia Code § 23-4-1(f) and found that considering the ten years between Mr. Moore’s
last date of employment with United and his diagnosis of CTS, his worsening diabetes, and
Dr. Nabet’s report which attributed Mr. Moore’s CTS to his diabetes, the record does not
establish that there is a direct causal connection between Mr. Moore’s employment with
United and his CTS. Mr. Moore argues that the Board failed to properly consider his
testimony and statements to Dr. Kominsky that he developed symptoms during his last two
or three years of employment and that Dr. Nabet erroneously found that the symptoms
developed along with the diabetes. However, we note that the Board pointed out that Mr.
Moore’s symptoms progressed over ten years following the date he was last exposed to the
hazard of CTS.
Although Mr. Moore argues that the Board erred in disregarding Dr. Kominsky’s
report, the Board specifically found that Dr. Kominsky did not consider Mr. Moore’s
diabetes. On the other hand, the Board found that Dr. Nabet’s report addresses the
significance of Mr. Moore’s diabetes as documented in the medical records and is more
complete in addressing compensability. We defer to the Board’s credibility determinations
and weighing of the evidence. See Martin v. Randolph Cnty. Bd. of Educ., 195 W. Va. 297,
306, 465 S.E.2d 399, 408 (1995) (“We cannot overlook the role that credibility places in
factual determinations, a matter reserved exclusively for the trier of fact. We must defer to
the ALJ’s credibility determinations and inferences from the evidence. . . .”).
2 We note that The Treatment Guidelines for Carpal Tunnel Syndrome, found in
West Virginia Code of State Rules § 85-20-41.4, provide, in part “[m]edical conditions
frequently produce or contribute to CTS. Recognition of these conditions is important for
good outcomes. Diabetes mellitus. . .and other conditions can precipitate CTS symptoms.”

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As set forth by the Supreme Court of Appeals of West Virginia, “[t]he ‘clearly
wrong’ and the ‘arbitrary and capricious’ standards of review are deferential ones which
presume an agency’s actions are valid as long as the decision is supported by substantial
evidence or by a rational basis.” Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473 S.E.2d 483
(1996). With this deferential standard of review in mind, we cannot conclude that the Board
was clearly wrong in affirming the claim administrator’s order, which rejected the claim.
Accordingly, we affirm the Board’s March 7, 2025, order.
Affirmed.
ISSUED: September 30, 2025
CONCURRED IN BY:
Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White