STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

November 1, 2013 

RORY L. PERRY II, CLERK 

BRUCE A. BUZZARD, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 12-0051 (BOR Appeal No. 2046190) 

(Claim No. 790067669) 

U.S. STEEL MINING COMPANY, LLC, 

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. U.S. Steel Mining Company, LLC, 

by Barney Frazier, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated December 22, 2011, in 

which the Board affirmed a July 28, 2011, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s April 29, 2010, 

decision granting Mr. Buzzard a 0% permanent partial disability award for his left elbow 

contusion. 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 and no prejudicial error. For these 

reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

Mr. Buzzard was working for U.S. Steel Mining Company, LLC when he suffered a left 

elbow contusion on February 19, 1979. He was off work for less than four days, and received no 

treatment for the injury other than an initial x-ray which was normal. On April 29, 2010, the 

claims administrator granted Mr. Buzzard a 0% permanent partial disability award for the left 

elbow contusion based on the report by Dr. Condaras. 

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In affirming the claims administrator’s decision, the Office of Judges held that Mr. 

Buzzard has 0% impairment resulting from the compensable left elbow contusion of February 

19, 1979. On appeal, Mr. Buzzard argues that his affidavit was rebuttal evidence, and was 

wrongly excluded under West Virginia Code of State Rules § 93-1-7.2(C) (2008). He further 

asserts that he is entitled to an 8% permanent partial disability award based on the report by Dr. 

Chand. U.S. Steel Mining Company maintains that the preponderance of the evidence establishes 

that Mr. Buzzard is not entitled to an increased permanent partial disability award for a thirtythree year old injury from which he fully recovered. Dr. Condaras evaluated Mr. Buzzard on 

April 20, 2010, and found that he had no impairment attributable to the February 19, 1979, 

injury. He noted that Mr. Buzzard returned to work less than four days after the injury, worked 

for more than twenty years before retiring, and there was no evidence of a fracture. On October 

12, 2010, Dr. Chand evaluated Mr. Buzzard and found 8% whole person impairment due to 

stiffness in the eblow and tardy ulnar palsy due to the compensable injury. Dr. Landis evaluated 

Mr. Buzzard on March 14, 2011, and found that Mr. Buzzard suffered from a minor soft tissue 

injury that received minor medical evaluation and treatment, obviously resolved, and was not 

evaluated or treated again for thirty years. Dr. Landis found that he had no impairment resulting 

from the compensable injury. 

The Office of Judges found that Dr. Condaras’s evaluation was persuasive, credible, and 

reliable medical evidence of Mr. Buzzard’s whole person impairment related to the compensable 

left elbow contusion. Mr. Buzzard’s argument that his affidavit, as rebuttal evidence, should 

have been admitted is well received. Under West Virginia Code of State Rules § 93-1-7.2 (c), 

rebuttal evidence can be submitted during any time frame or extension. The record demonstrates 

that there was a time frame still open at the time of the affidavit. However, there is still 

insufficient evidence to discredit Dr. Condaras’s findings that Mr. Buzzard has no impairment 

attributable to the compensable left elbow contusion. The Office of Judges noted that Mr. 

Buzzard worked for twenty years with no further treatment of the left elbow. It further noted that 

Mr. Buzzard had related his left arm pain to radiation of neck pain, which is not compensable in 

this claim. The Office of Judges concluded that Mr. Buzzard was not entitled to an additional 

permanent partial disability award. The Board of Review reached the same reasoned conclusions 

in its decision of December 22, 2011. We agree with the reasoning and conclusions of the Board 

of Review. 

For the foregoing reasons, we find that the decision of the Board of Review is not in clear 

violation of any constitutional or statutory provision, nor is it clearly the result of erroneous 

conclusions of law, nor is it based upon a material misstatement or mischaracterization of the 

evidentiary record. Therefore, the decision of the Board of Review is affirmed. 

Affirmed. 

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ISSUED: November 1, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin J. Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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