STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

May 7, 2014 

RORY L. PERRY II, CLERK 

BRUCE A. BUZZARD, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 12-1007 (BOR Appeal No. 2046967) 

(Claim No. 2012012738) 

WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER 

Commissioner Below, Respondent 

and 

PRINCESS BEVERLY COAL COMPANY, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Bruce A. Buzzard, by John H. Shumate Jr., his attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. The West Virginia Office of 

Insurance Commissioner, by Jay W. Craig, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated August 1, 2012, in 

which the Board reversed a February 24, 2012, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges reversed the claims administrator’s October 25, 2011, 

decision rejecting the claim for left ulnar palsy. 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 that the Board of Review’s decision is based upon a material 

misstatement or mischaracterization of the evidentiary record. This case satisfies the “limited 

circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate 

for a memorandum decision rather than an opinion. 

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Mr. Buzzard worked as a loader and heavy equipment operator for Princess Beverly Coal 

Company. Mr. Buzzard’s job required him to operate heavy equipment with his elbows bent and 

his arms flexed. His job also subjected his hands and arms to heavy vibrations. Mr. Buzzard 

stopped working on March 19, 1999. Following his employment, he began developing tingling 

and numbness in both hands and forearms. On August 28, 2001, Joe Othman, M.D., performed 

electromyogram (EMG) and nerve conduction studies (NCS) on Mr. Buzzard’s left upper 

extremity. The testing revealed evidence of left carpal tunnel syndrome but no further injuries. 

Dr. Othman tested Mr. Buzzard again on February 16, 2010, and the EMG and NCS testing 

revealed left ulnar neuropathy. Yogesh Chand, M.D., then evaluated Mr. Buzzard and found that 

he had tardy ulnar palsy in the left elbow. Dr. Chand also found that Mr. Buzzard had received a 

prior occupational injury on February 19, 1979, which resulted in a contusion of the left elbow. 

Dr. Chand found that Mr. Buzzard’s work conditions at Princess Beverly Coal Company were 

consistent with his ulnar palsy. However, Dr. Chand believed that Mr. Buzzard’s ulnar palsy was 

related to the left elbow injury he sustained in 1979. On October 6, 2011, Mr. Buzzard filed an 

application for workers’ compensation benefits. His application stated that he had developed 

tardy ulnar palsy from repetitive use of his left elbow in the flexed position while operating 

heavy equipment at Princess Beverly Coal Company. The physician’s portion of the application 

was filled out by Paul Oar, M.D., who concluded that this was an occupational injury. On 

October 25, 2011, the claims administrator rejected Mr. Buzzard’s application. The claim 

administrator stated that Mr. Buzzard had failed to meet the requirement under West Virginia 

Code § 23-4-15(c) (2010) that an initial filing be made within three years from the date of last 

exposure. The claims administrator also stated, based on Dr. Chand’s report, that the condition 

related to a prior injury. But on February 24, 2012, the Office of Judges reversed the claims 

administrator’s decision and held Mr. Buzzard’s claim compensable. The Board of Review then 

reversed the Order of the Office of Judges on August 1, 2012, leading Mr. Buzzard to appeal. 

The Office of Judges concluded that Mr. Buzzard’s application was timely filed. The 

Office of Judges found that Mr. Buzzard had met the requirement of West Virginia Code § 23-4­

15(c) because he filed his claim for tardy ulnar palsy within three years of being diagnosed with 

the occupational condition. The Office of Judges found that Mr. Buzzard was first informed that 

he had the condition on October 12, 2010, and that he filed his application for benefits on 

October 6, 2011, which was within three years of the initial diagnosis. 

The Office of Judges also concluded that Mr. Buzzard sustained the disease of left elbow 

tardy ulnar palsy in the course of and resulting from his employment. The Office of Judges found 

that Dr. Chand’s report was the most persuasive evidence in the record regarding the issue of 

compensability. The Office of Judges further found that Dr. Chand believed that Mr. Buzzard 

has some residual impairment of the left elbow as a result of the 1979 elbow contusion. 

However, the Office of Judges interpreted his report to say that Mr. Buzzard had an elbow 

contusion in 1979 and then, due to the repetitive vibration and awkward use of his elbow while 

working at Princess Beverly Coal Company, he developed the condition of tardy ulnar palsy. 

The Board of Review reversed the Order of the Office of Judges and concluded that Mr. 

Buzzard failed to sustain his burden in proving that he sustained an occupational disease or 

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occupational injury. The Board of Review found that Mr. Buzzard last worked on March 19, 

1999, and that he filed his claim on October 6, 2011. The Board of Review found that the EMG 

and NCS studies performed on August 28, 2001, did not show left ulnar palsy. However, it found 

that when the studies were repeated on February 16, 2010, almost eleven years after Mr. 

Buzzard’s last day of work, there was evidence of left ulnar neuropathy in the elbow. The Board 

of Review stated that Dr. Chand’s report was not persuasive because it provided conflicting 

opinions regarding the cause of Mr. Buzzard’s condition. The Board of Review found that Dr. 

Chand attributed Mr. Buzzard’s condition to the left elbow contusion he sustained in 1979 and 

alternatively to his use of heavy equipment at Princess Beverly Coal Company. The Board of 

Review also found that the remainder of the medical evidence was not reliable because it did not 

explain how Mr. Buzzard developed the condition of ulnar palsy approximately eleven years 

after he stopped working at Princess Beverly Coal Company. 

The decision of the Board of Review is based on a material misstatement or 

mischaracterization of Dr. Chand’s report. Although Dr. Chand’s report relates the left ulnar 

palsy to his 1979 elbow contusion, he clearly states that Mr. Buzzard’s documented vibrational 

and awkward use of his left elbow while he worked for Princess Beverly Coal Company 

contributed to the condition. Mr. Buzzard has presented sufficient evidence to show that his left 

ulnar palsy was sustained in the course of and resulting from his employment. Dr. Oar also 

related Mr. Buzzard’s condition to his occupation. The electrodiagnostic evidence in the case 

demonstrates that Mr. Buzzard has tardy ulnar palsy in the left elbow, and his testimony provides 

a sufficient causal connection between his work and this condition to hold his claim 

compensable. 

For the foregoing reasons, we find that the decision of the Board of Review is based upon 

a material misstatement or mischaracterization of particular components of the evidentiary 

record. Therefore, the decision of the Board of Review is reversed and remanded with 

instructions to reinstate the February 24, 2012, Order of the Office of Judges. 

Reversed and Remanded. 

ISSUED: May 7, 2014 

CONCURRED IN BY: 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

DISSENTING: 

Chief Justice Robin J. Davis
 

Justice Allen H. Loughry II dissents and files a separate opinion.
 

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Mr. Buzzard has failed to show a causal connection between his left ulnar palsy and his 

employment. Mr. Buzzard last worked for Princess Beverly Coal Company on March 19, 1999. 

The Board of Review correctly pointed out that his left ulnar palsy condition was not diagnosed 

until nearly eleven years after his date of last employment. Although Dr. Chand diagnosed Mr. 

Buzzard with tardy ulnar palsy, he believed the condition was the result of a left elbow injury 

suffered by Mr. Buzzard in 1979. There is simply insufficient evidence in this case to 

demonstrate that Mr. Buzzard developed left ulnar palsy in the course of and resulting from his 

employment. 

In view of the foregoing, I respectfully dissent. 

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