STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS FILED 

March 14, 2013
 

RORY L. PERRY II, CLERK
 

BRUCE A. BUZZARD, SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 11-1594 (BOR Appeal No. 2045891) 

(Claim No. 2010131208) 

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 Gary Mazezka, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated October 28, 2011, in 

which the Board reversed an April 15, 2011, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges reversed the claims administrator’s April 22, 2010, 

decision rejecting the claim for bilateral carpal tunnel syndrome. 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 no substantial question of law. For these reasons, a memorandum 

decision is appropriate under Rule 21 of the Rules of Appellate Procedure. 

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Mr. Buzzard worked for the Princess Beverly Coal Company. On April 22, 2010, the 

claims administrator denied Mr. Buzzard’s claim for workers’ compensation benefits for bilateral 

carpal tunnel syndrome. The Office of Judges reversed the claims administrator’s Order and held 

the claim compensable for bilateral carpal tunnel syndrome. The Board of Review reversed the 

Office of Judges’ Order, and held that the preponderance of the evidence established that the 

claim was not timely filed. 

On appeal, Mr. Buzzard disagrees and asserts that his application for bilateral carpal 

tunnel syndrome was timely filed within three years after his occupational disease was made 

known to him by a physician or which he should have known, as evidenced by the relevant, 

credible, material, and reliable medical evidence. The West Virginia Office of Insurance 

Commissioner maintains that the application was not timely filed, as indicated by an EMG, nerve 

conduction study, physician’s evaluations, a functional capacity evaluation, and an application 

for permanent total disability benefits all mentioning carpal tunnel syndrome prior to September 

4, 2004. 

The Office of Judges held that the preponderance of the evidence established that Mr. 

Buzzard incurred bilateral carpal tunnel syndrome in the course of and resulting from his 

employment. It also held that his application for workers’ compensation benefits for bilateral 

carpal tunnel syndrome was timely filed, as Mr. Buzzard filed for benefits within three years of 

being advised of the condition. The Office of Judges noted that Mr. Buzzard was informed of 

bilateral carpal tunnel syndrome resulting from his job duties in February of 2010. The Office of 

Judges concluded that the evidence of left carpal tunnel syndrome in 2001 resulting from a 

previous work-related injury was insufficient to establish that Mr. Buzzard had constructive 

knowledge of bilateral carpal tunnel syndrome resulting from the repetitive nature of his job 

duties. We agree with the reasoning and conclusions of the Office of Judges. 

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

a material misstatement or mischaracterization of the evidentiary record. Therefore, the decision 

of the Board of Review is reversed and the Office of Judges’ April 15, 2011, Order is reinstated. 

Reversed and Remanded. 

ISSUED: March 14, 2013 

CONCURRED IN BY: 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

DISSENTING: 

Chief Justice Brent D. Benjamin 

Justice Robin J. Davis 

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