STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

July 17, 2013 

RORY L. PERRY II, CLERK 

SWVA, INCORPORATED, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Employer Below, Petitioner 

vs.) No. 11-1434	 (BOR Appeal No. 2045659) 

(Claim No. 2009091479) 

CHUCK RUTHERFORD, 

Claimant Below, Respondent 

MEMORANDUM DECISION 

Petitioner SWVA, Incorporated, by H. Toney Stroud, its attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. 

This appeal arises from the Board of Review’s Final Order dated September 14, 2011, in 

which the Board affirmed a February 17, 2011, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges reversed the claims administrator’s May 19, 2010, 

decision denying Mr. Rutherford’s request to add bilateral cubital and carpal tunnel syndrome as 

compensable components of the claim. 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. Rutherford filed an application for workers’ compensation benefits alleging that he 

suffers from bilateral cubital and carpal tunnel syndrome as a result of his employment. In its 

Order reversing the claims administrator’s May 19, 2010, decision, the Office of Judges held that 

Mr. Rutherford developed cubital and carpal tunnel syndrome in the course of and as a result of 

his employment. SWVA, Incorporated disputes this finding and asserts that the evidence of 

record demonstrates that Mr. Rutherford’s cubital and carpal tunnel syndrome was not caused by 

his employment. In particular, SWVA points to the opinion of Dr. Hennessey, who stated that 

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Mr. Rutherford’s cubital and carpal tunnel syndrome is not work-related because his symptoms 

persisted and progressed in the absence of employment. 

The Office of Judges found that Mr. Rutherford’s deposition testimony established that 

his work duties are compatible with the development of carpal tunnel syndrome within the 

meaning of West Virginia Code of State Rules § 85-20-41.5 (2006), which details occupational 

groups at high risk for the development of carpal tunnel syndrome. The Office of Judges further 

found that Mr. Rutherford worked as a tab and punch operator, and that his employment duties 

involved intricate work with his hands requiring awkward wrist positioning, significant grip 

force, high force repetitive manual movements, and involved the use of vibratory tools. Finally, 

the Office of Judges found that Mr. Rutherford has proven that he was exposed to the 

occupational hazards of developing cubital and carpal tunnel syndrome. The Board of Review 

reached the same reasoned conclusions in its decision of September 14, 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. 

ISSUED: July 17, 2013 

CONCURRED IN BY: 

Justice Robin J. Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

DISSENTING: 

Chief Justice Brent D. Benjamin 

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