STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS FILED 

May 14, 2013
 

RORY L. PERRY II, CLERK
 

RUBY A. DEAN, SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 11-0928	 (BOR Appeal No. 2045152) 

(Claim No. 2010125343) 

MARSHALL UNIVERSITY, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Ruby A. Dean, by Timothy P. Rosinsky, her attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. Marshall University, by Steven K. 

Wellman, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated April 12, 2011, in 

which the Board reversed a September 20, 2010, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges reversed the claims administrator’s March 5, 2010, 

denial of Ms. Dean’s request of compensability for bilateral cubital and 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. 

Ms. Dean has been employed as part of Marshall University’s administrative support 

staff for twenty-nine years. Her duties consist primarily of computer work. On October 1, 2009, 

Ms. Dean submitted a claim complaining that the ergonomically incorrect office conditions 

caused her to develop bilateral cubital and carpal tunnel syndrome. On February 22, 2010, Ms. 

Dean was examined by Dr. Bolano, who requested authorization for diagnostic testing to 

determine if she had cubital and carpal tunnel syndrome. Her claim was summarily rejected by 

the claims administrator before any additional diagnostic testing could be conducted, leading to 

this appeal. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Office of Judges reversed the claims administrator’s decision, finding that Ms. Dean 

had submitted a compensable claim. But the Office of Judges’ Order was reversed and the claims 

administrator’s decision was reinstated by the Board of Review. The Board of Review 

determined that, according to West Virginia Code of State Rules § 85-20-41.5 (2006), Ms. 

Dean’s clerical duties did not place her in an occupation that had a high risk for developing 

carpal tunnel syndrome and she did not present sufficient evidence to show that her condition 

resulted from her employment. 

The Order of the Board of Review is clearly the result of an erroneous interpretation of 

West Virginia Code of State Rules § 85-20-41.5. Although the regulation singles out certain 

occupations which are at a high risk for carpal tunnel syndrome, it does not preclude a clerical 

employee from proving her case for carpal tunnel syndrome. 

Ms. Dean was not permitted to develop her claim. The record is not sufficient to 

determine whether the Ms. Dean has a compensable injury based on cubital or carpal tunnel 

syndrome. Ms. Dean was not permitted to undergo an electromyography (EMG) or any other 

testing recommended by Dr. Bolano, even though West Virginia Code of State Rules § 85-20­

41.7(d)(2) (2006), specifically recommends use of an EMG test to diagnose carpal tunnel 

syndrome. West Virginia Code of State Rules § 85-1-10.1 (2009) permits the claims 

administrator to “require the production of additional evidence” where “a claim has not been 

adequately or properly developed for consideration.” The claims administrator’s decision on 

March 10, 2010, came prior to an exact diagnosis of Ms. Dean’s condition and prevented her 

from properly developing the record. The Board of Review should have remanded Ms. Dean’s 

claim for the production of additional evidence, including an EMG in accordance with the 

diagnostic recommendations of West Virginia Code of State Rules § 85-20-41.7(d)(2) (2006). 

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 case is remanded with instructions to require an electromyography (EMG) test 

and any additional testing sufficient to make a proper consideration of Ms. Dean’s claim. 

Reversed and Remanded. 

ISSUED: May 14, 2013 

CONCURRED IN BY: 

Justice Robin J. Davis 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

DISSENTING: 

Chief Justice Brent D. Benjamin 

Justice Menis E. Ketchum, disqualified