STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

June 27, 2014 

RORY L. PERRY II, CLERK 

CHUCK RUTHERFORD, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 13-0291	 (BOR Appeal No. 2047673) 

(Claim No. 2009091479) 

SWVA, INC.,
 

Employer Below, Respondent
 

MEMORANDUM DECISION 

Petitioner Chuck Rutherford, by Edwin Pancake, his attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. SWVA, Inc., by Steven Wellman, its 

attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated February 22, 2013, in 

which the Board affirmed an August 30, 2012, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges reversed the claims administrator’s August 16, 2011, 

decision granting Mr. Rutherford a 4% permanent partial disability award. 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 erroneous 

conclusions of law. 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. 

Mr. Rutherford developed bilateral carpal tunnel syndrome and bilateral cubital tunnel 

syndrome during the course of his employment with SWVA, Inc. He has undergone three 

independent medical evaluations to determine the amount of permanent impairment resulting 

from these conditions. On August 2, 2011, Marsha Lee Bailey, M.D., evaluated Mr. Rutherford. 

She found that Mr. Rutherford sustained 0% whole person impairment as a result of cubital 

tunnel syndrome. After applying West Virginia Code of State Rules § 85-20 (2006) she 

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determined that he has 12% whole person impairment as a result of bilateral carpal tunnel 

syndrome, with 6% whole person impairment attributed to each hand. She then attributed 8% of 

Mr. Rutherford’s whole person impairment to personal risk factors, including obesity and 

diabetes, and concluded that he sustained a total of 4% whole person impairment as a result of 

bilateral carpal tunnel syndrome arising from his occupation. On August 16, 2011, the claims 

administrator granted Mr. Rutherford a 4% permanent partial disability award in accordance with 

Dr. Bailey’s recommendation. 

On January 3, 2012, Bruce Guberman, M.D., evaluated Mr. Rutherford. He concluded 

that Mr. Rutherford did sustain permanent whole person impairment as a result of both bilateral 

cubital tunnel syndrome and bilateral carpal tunnel syndrome. However, his overall whole person 

impairment recommendations were calculated with the inclusion of multiple conditions that are 

not compensable components of the instant claim. On May 7, 2012, Jerry Scott, M.D., evaluated 

Mr. Rutherford. Like Dr. Bailey, after applying West Virginia Code of State Rules § 85-20 he 

also found that Mr. Rutherford has 12% whole person impairment as a result of bilateral carpal 

tunnel syndrome, with 6% whole person impairment attributed to each hand. Also like Dr. 

Bailey, he attributed 8% of Mr. Rutherford’s whole person impairment to the personal risk 

factors of obesity and diabetes, and concluded that Mr. Rutherford sustained a total of 4% whole 

person impairment for bilateral carpal tunnel syndrome arising as a result of his occupation. 

In its Order reversing the claims administrator’s August 16, 2011, decision, the Office of 

Judges held that Mr. Rutherford is entitled to a 9% permanent partial disability award for 

bilateral carpal tunnel syndrome, with 4% impairment attributed to the right hand and 5% 

impairment attributed to the left hand. Mr. Rutherford disputes this finding and asserts that the 

evidence of record demonstrates that he is entitled to an increased award for bilateral carpal 

tunnel syndrome and further asserts, per the opinion of Dr. Guberman, that he is entitled to a 

permanent partial disability award for bilateral cubital tunnel syndrome. 

In its Order, the Office of Judges determined that the evidence of record demonstrates 

that apportionment for non-occupational factors relating to the development of carpal tunnel 

syndrome should occur in the instant claim, and further determined that apportionment should 

occur before the application of West Virginia Code of State Rules § 85-20. The Office of Judges 

then determined that Drs. Bailey and Scott apportioned for non-occupational factors at the 

incorrect time, and noted that Dr. Guberman did not apportion. After determining that none of 

the physicians of record properly apportioned for non-occupational factors, the Office of Judges 

proceeded to engage in its own calculation of the amount of Mr. Rutherford’s whole person 

impairment. The Office of Judges stated that it would not utilize Dr. Scott’s findings in making 

its determination because his initial upper extremity impairment ratings differ from those of Drs. 

Bailey and Guberman. The Office of Judges then utilized portions of Dr. Bailey’s findings to 

arrive at the conclusion that Mr. Rutherford has 9% whole person impairment as a result of 

bilateral carpal tunnel syndrome, with 4% impairment attributed to the right hand and 5% 

impairment attributed to the left hand. Finally, the Office of Judges determined that Mr. 

Rutherford sustained 0% whole person impairment as a result of cubital tunnel syndrome. The 

Board of Review affirmed the reasoning and conclusions of the Office of Judges in its decision 

dated February 22, 2013. 

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We find that the decisions of the Office of Judges and Board of Review are the result of 

erroneous conclusions of law. The Office of Judges’ determination that apportionment for nonoccupational risk factors should occur prior to the application of West Virginia Code of State 

Rules § 85-20 is contrary to numerous decisions issued by this Court, in which we have 

consistently held that apportionment should occur after the application of West Virginia Code of 

State Rules § 85-20. See, e.g., Jeffrey v. Pinnacle Mining Company, No. 11-1426 (February 4, 

2014) and Blair v. Mason Mining, No. 11-0537 (February 4, 2014). Additionally, the Office of 

Judges’ and Board of Review’s decisions are in violation of this Court’s decision in Repass v. 

Workers’ Compensation Div., 212 W.Va. 86, 95, 569 S.E.2d 162, 171 (2002), in which we held 

that permanent partial disability awards are to be made solely on the basis of a physician’s 

impairment evaluation. None of the physicians of record determined that Mr. Rutherford 

sustained 9% whole person impairment as a result of bilateral carpal tunnel syndrome; therefore, 

the 9% permanent partial disability award granted by the Office of Judges is not based on a 

physician’s impairment recommendation. 

We further find that the impairment recommendations of Drs. Bailey and Scott are 

virtually identical. A plain reading of their reports shows that both recommended a 4% 

permanent partial disability award for Mr. Rutherford’s compensable bilateral carpal tunnel 

syndrome, and both found that 8% of Mr. Rutherford’s whole person impairment arising from 

bilateral carpal tunnel syndrome is related to non-occupational factors. Additionally, both found 

that Mr. Rutherford sustained no permanent impairment as a result of bilateral cubital tunnel 

syndrome. In contrast, Dr. Guberman’s whole person impairment recommendation included 

multiple non-compensable conditions, and therefore is not reliable for the purpose of 

determining the amount of Mr. Rutherford’s whole person impairment arising from the 

compensable conditions in the instant claim. Therefore, Mr. Rutherford is entitled to a total 

permanent partial disability award of 4% in accordance with the reports of Drs. Bailey and Scott, 

and in accordance with the claims administrator’s August 16, 2011, decision. 

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 claim is remanded with instructions to reinstate the claims administrator’s 

August 16, 2011, decision granting Mr. Rutherford a 4% permanent partial disability award. 

Reversed and remanded. 

ISSUED: June 27, 2014 

CONCURRED IN BY: 

Chief Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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