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IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

CORONADO GROUP, LLC,

Employer Below, Petitioner

vs.) No. 22-ICA-312 (JCN: 2021023430)

MARSHAL L. LYTTON, JR.,

Claimant Below, Respondent 

MEMORANDUM DECISION

Petitioner Coronado Group, LLC, (“Coronado”) appeals the decision of the 

Workers’ Compensation Board of Review (“Board”) dated November 18, 2022, affirming 

the Office of Judge’s (“OOJ”) decision that ruled the claim compensable for carpal tunnel 

syndrome (“CTS”). Respondent Marshal L. Lytton, Jr. timely filed a response.1 Coronado 

timely filed a reply. 

 

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-

11-4 (2022). 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. Lytton completed an Employees’ and Physicians’ Report of Occupational 

Injury or Disease for CTS that he contended resulted from his work as an underground coal 

miner. The date of last exposure was listed as March 5, 2020. On May 5, 2021, Michael 

Kominsky, D.C., completed the physician’s section of the form, listing the diagnosis codes 

for CTS and cubital tunnel syndrome, and indicating that these were occupational diseases 

resulting from chronic repetitive motion. Mr. Lytton completed the claim administrator’s 

Carpal Tunnel Questionnaire, listing his job duties as mining coal, running equipment, 

lifting and putting in belt splices, handling cables, and bolting top. Further, Mr. Lytton 

indicated his job involved operating equipment and tools such as a roof bolter, continuous 

miner, hammers, and shuttle cars. Mr. Lytton indicated that he frequently performed work 

requiring rotations and bending of the wrists, and lifting. The treatment provider’s 

signature is illegible on the Physician Questionnaire, dated June 2, 2021, however, the 

provider listed the same address as that of Chiropractor Kominsky. The provider noted that 

an EMG performed on April 6, 2021, revealed bilateral median nerve neuropathy 

consistent with bilateral CTS. Further, Mr. Lytton was diagnosed with repetitive strain 

1 Coronado is represented by Steven K. Wellman, Esq. and James W. Heslep, Esq. 

Mr. Lytton is represented by Reginald D. Henry, Esq. and Lori J. Withrow, Esq. 

FILED

April 10, 2023

EDYTHE NASH GAISER, CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA
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injury as a consequence of his long history of coal mining work using vibrating and impact 

tools, hammering, setting timbers, and using levers to operate machinery. A prior medical 

history was positive for diabetes. Mr. Lytton was referred for an orthopedic examination. 

On June 21, 2021, Rebecca Thaxton, M.D., performed a record review and opined 

that Mr. Lytton’s work history did not support work-related CTS. Dr. Thaxton determined 

that since November 1, 2018, when Coronado hired Mr. Lytton as a foreman, he had 

performed little physical activity. Based on information from “the employer,” Dr. Thaxton

reported that Mr. Lytton’s work for Coronado was supervisory. She did not feel that his 

use of handheld tools and vibrating tools was consistent with occupationally related CTS. 

She also noted that he had not worked since March of 2020. Further, Dr. Thaxton noted a 

medical history of diabetes and obesity and commented that the EMG diagnosis of CTS 

was made over a year after Mr. Lytton last worked. These factors led Dr. Thaxton to 

determine that the medical evidence did not support a diagnosis of work-related CTS.

By order dated June 21, 2021, the claim administrator denied the claim based on Dr. 

Thaxton’s review. Mr. Lytton protested.

Treatment records reveal Mr. Lytton’s medical history included diagnoses of 

hypertension and sleep apnea, and in early 2010 diabetes mellitus was diagnosed. In April 

of 2015, a diagnosis of peripheral neuropathy secondary to uncontrolled Type II diabetes 

was made. Hypothyroidism was mentioned in a few reports from 2019, but it did not remain 

as a diagnosis and it was unclear whether any testing confirmed it or ruled it out. 

In a deposition on August 11, 2021, Mr. Lytton testified that Chiropractor Kominsky 

diagnosed him with CTS. Mr. Lytton confirmed that he last worked as a shift foreman for 

Coronado, and that his job duties included making belt splices, using hammers and over 

100 nails per splice. In detailed testimony, Mr. Lytton described how he hammered nails 

into the splices, estimating that over one hundred nails were used in each splice. Further, 

Mr. Lytton asserted that as part of his job he would move belts and perform other work 

requiring using tools such as channel locks, crescent wrenches, sledgehammers, fourpound hammers, jack bars, and slate bars. According to Mr. Lytton, he had to use force and 

gripping to use these tools, and he noted that he was subjected to vibrations from the impact 

wrenches he used in his work. Mr. Lytton also testified that he used a computer for onehalf to three-fourths of an hour out of a twelve-hour shift. In the deposition, Mr. Lytton 

also described the work he performed for a previous employer from 2012 to 2018 where 

he was a superintendent of miner sections. While this position required a significant 

amount of supervisory work, Mr. Lytton contended that even during those years he used 

tools that required forceful, repetitive hand motions every day. Mr. Lytton reviewed his 

other work history which was also in the mining industry and involved operating a 

continuous miner using levers, and using a sledgehammer, bit wrench, and slate bar, all of 

which required repetitive motions. According to Mr. Lytton, his hand symptoms began 

during his employment with Coronado and worsened when he used tools. However, he 
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admitted he was still having constant symptoms even though he no longer was working. 

Mr. Lytton discussed his medical conditions and said he controlled his diabetes and high 

blood pressure with medications. 

On November 30, 2021, Marsha Bailey, M.D., evaluated Mr. Lytton and diagnosed 

CTS. However, Dr. Bailey opined the condition was unrelated to Mr. Lytton’s occupation. 

Her opinion focused on several factors. First, Dr. Bailey found that Mr. Lytton had reported 

numbness in his fingers and wrists years before he worked for Coronado. Second, she felt

that Mr. Lytton’s work as a foreman at Coronado did not involve sufficient repetitive or 

forceful exertion to be a causative factor for CTS. Dr. Bailey indicated that she relied on 

information about Mr. Lytton’s job duties that Coronado provided to her. However, Dr. 

Bailey noted that Mr. Lytton’s occupational duties at Coronado included making belt 

splices, shoveling belt lines, running a shuttle car, operating a continuous miner, and shift 

foreman. Third, Dr. Bailey determined that Mr. Lytton’s risk factors included obesity, 

diabetes, and hypothyroidism. In her analysis, Dr. Bailey opined that the CTS and cubital 

tunnel syndrome did not result from Mr. Lytton’s employment, but were instead due to 

non-occupational conditions. 

In a decision dated March 31, 2022, the OOJ applied the criteria set forth in West 

Virginia Code § 23-4-1(f) (2021) in determining whether the claim for CTS, an 

occupational disease, was compensable.2 Although the OOJ noted that Mr. Lytton had only 

worked for a year and one half for Coronado, it also observed that he had worked for a total 

of forty-one years as an underground coal miner, and it mentioned that occupational disease 

claims were no longer allocated between employers. Ultimately, the OOJ affirmed the 

order denying the claim on the basis that Mr. Lytton failed to submit sufficient 

documentation regarding his work activities during his forty-one years as a coal miner. The

OOJ noted that while “[o]ne can imagine a coal miner performing repetitive and forceful 

2 The six criteria set out in the statute are as follows:

(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 the 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 an employer and employee, and (6) 

that it must appear to have had its origin in the 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.
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work with his or her hands,” such “work activities are not assumed,” and Mr. Lytton failed 

to present any testimony in the protest. 

As it turned out, the OOJ’s decision dated March 31, 2022, was based on an 

incomplete record. The OOJ granted Mr. Lytton’s motion to reconsider on the basis that 

his deposition transcript was timely submitted into evidence but had not been considered.

On June 24, 2022, the OOJ issued a decision that considered Mr. Lytton’s deposition 

testimony and again noted that West Virginia Code § 23-4-1(f) was applicable in 

determining whether a claim for CTS was compensable. The OOJ ruled that the claimant 

had proven by a preponderance of the evidence that Mr. Lytton developed bilateral CTS in 

the course of and resulting from his employment. Referencing Mr. Lytton’s testimony, the 

OOJ determined that he “spent the majority of his shifts performing manual labor” 

involving moving and splicing belts, and hanging mining curtains, using tools requiring 

force and repetitive motions. Further, the OOJ noted that Mr. Lytton’s prior employment 

in the mining industry exposed him to the type of work that could cause CTS. The OOJ 

acknowledged the existence of Mr. Lytton’s personal risk factors, but found it was more 

likely than not that Mr. Lytton’s CTS developed in the course of and as a result of his 

employment. The Board affirmed by order dated November 18, 2022. Coronado 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.

Duff v. Kanawha Cnty. Comm’n, No. 22-ICA-10, __ W. Va. __, __, 882 S.E.2d 916, 921

(Ct. App. 2022).
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On appeal, Coronado argues that the OOJ failed to apply the burden of proof

regarding Mr. Lytton’s non-occupational risk factors. Coronado cites the West Virginia 

Code of State Rules § 85-20-41.2 (2006), and argues that half of CTS cases are idiopathic. 

Here, it contends, there was no medical evidence examining Mr. Lytton’s duties and 

finding them to be the cause of his CTS. Rather, Coronado asserts that the medical evidence 

indicates that the more likely cause of Mr. Lytton’s CTS was his personal risk factors and 

the OOJ failed to properly weigh the evidence. 

Coronado also argues that the OOJ ruled the claim compensable based on Mr. 

Lytton’s testimony alone. As evidence of this argument, Coronado notes that when the 

OOJ ruled on March 31, 2022, it affirmed the rejection of the claim based on a record that 

did not contain the deposition testimony; then, upon reconsideration, when Mr. Lytton’s 

testimony was considered, the OOJ held the claim compensable. Coronado argues that the 

OOJ erred in relying on Mr. Lytton’s testimony, in the absence of credible medical 

evidence showing his CTS was related to his employment. 

Finally, Coronado argues that Mr. Lytton was not exposed to the hazards of CTS 

while working as a foreman for Coronado from November of 2018 to March 5, 2020. 

Coronado asserts Dr. Bailey set forth a review of Mr. Lytton’s work duties and determined 

that his CTS was not work-related. 

Mr. Lytton counters that the OOJ correctly found the claim compensable after it 

considered his deposition testimony regarding his work duties. The findings of Drs. Bailey 

and Thaxton, Mr. Lytton asserts, assumed he was a foreman with solely supervisory duties, 

when his testimony revealed that he frequently used tools requiring force and repetitive 

motion. Also, Mr. Lytton notes that Chiropractor Kominsky’s report supported a finding 

that his CTS was directly related to his occupation. Finally, Mr. Lytton argues that West 

Virginia Code § 23-4-1 does not require him to prove that the conditions of his employment 

were the exclusive or sole cause of the CTS, nor was he required to show that CTS is 

particular to one industry, work environment, or occupation. Instead, he argues that the 

evidence shows that the CTS developed as a result of his work and worsened over the 

course of his employment.

Upon review, we find no reversible error in the Board’s decision to affirm the OOJ’s 

decision. Pursuant to our statutory standard of review, this Court may only reverse the 

Board in a limited set of circumstances.3 Coronado seeks a reversal on the basis that the 

3 Our review is deferential to the Board. West Virginia Code § 23-5-12a(b) sets forth 

the same standard of review as was previously required of the Board when it reviewed 

decisions by the OOJ per West Virginia Code § 23-5-12 before the 2021 statutory 

amendments became effective. In considering West Virginia Code § 23-5-12, the Supreme 

Court of Appeals of West Virginia stated that the Board was required to accord deference 
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OOJ and Board were clearly wrong in view of the evidence. However, the OOJ as the 

factfinder, adequately analyzed and weighed Mr. Lytton’s personal risk factors and workrelated risk factors for developing CTS, and appropriately considered Mr. Lytton’s 

testimony about his job duties. We are not persuaded that Mr. Lytton’s testimony was 

insufficient evidence that his work exposed him to the risks of CTS.4 Further, it is clear 

that the OOJ also properly weighed and considered opinions by Drs. Thaxton and Bailey

when it determined that it was more likely than not that Mr. Lytton’s CTS developed in the 

course of and resulting from his employment. 

We note that there is no minimum amount of physical work duties that a claimant 

must have performed in order to maintain a claim for CTS, pursuant to West Virginia Code 

§ 23-4-1(f),

compensation is not payable for an occupational disease . . . unless the 

employee has been exposed to the hazards of the disease in the State of West 

Virginia over a continuous period that is deemed to be sufficient, by rule of 

the board of managers, for the disease to have occurred in the course of and 

resulting from the employee’s employment.

There is no specific “board of manager’s rule,” but West Virginia Code of State Rules § 

85-20-41.5 and 41.6 provide that the type of work associated with CTS causation involves 

high force and high repetitive manual movement and CTS is associated with years of 

repetitive activity. 

The OOJ weighed the evidence in the record and found that Mr. Lytton was exposed 

to the hazards of CTS while working for Coronado and in his prior work as an underground 

miner over the course of forty-one years. As the OOJ noted in the decision dated March 

31, 2022, occupational disease claims are no longer allocated between employers.

5 Thus,

to the decisions by the OOJ. Conley v. Workers’ Comp. Div., 199 W. Va. 196, 203, 483 

S.E.2d 542, 549 (1997).

4 Although Coronado relies heavily on Addair v. Litwar Processing Co., LLC, No. 

11-0397, 2012 WL 2914980 (W. Va. Feb. 9, 2012) (memorandum decision), we decline to 

extend Addair to this claim for CTS. Addair concerned complex illnesses related to alleged 

chemical exposure in a deliberate intent action.

5 West Virginia Code § 23-4-1(f), gives the Insurance Commissioner the discretion 

to allocate the responsibility and liability between multiple employers. The Insurance 

Commissioner issued a notice that beginning in 2006 it was exercising its discretion to not 

allocate or divide charges for claims among employers from which a claimant received 

exposure to the hazard of an occupational disease. The Commissioner’s notice specifies 

that it applies to the “practice of claims allocation of workers’ compensation claim[s] for 

occupational pneumoconiosis (OP) ... and other occupational diseases (OD), including 
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that Mr. Lytton had symptoms before he worked for Coronado is not determinative in a 

claim for the occupational disease of CTS.

Coronado has not made a showing that the Board’s affirmance is clearly wrong.

Accordingly, we affirm the Board’s order dated November 18, 2022. 

Affirmed.

ISSUED: April 10, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear

Judge Charles O. Lorensen

Judge Thomas E. Scarr, not participating

carpal tunnel syndrome.” In Pioneer Pipe, Inc., v. Swain, 237 W. Va. 722, 791 S.E.2d 168 

(2016), the Supreme Court of Appeals of West Virginia approved the Commissioner’s 

decision to not allocate claims.