West Virginia Record

CHARLESTON - The state Supreme Court of Appeals has issued an opinion in a case involving a former employee of the Princess Beverly Coal Company.

The appeal arose from the Board of Review's final order dated Oct. 18, 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, according to a memorandum decision filed March 14 in the Supreme Court of Appeals of West Virginia.

Bruce A. Buzzard worked for Princess and on April 22, 2010, a claims administrator denied his claim for Workers' Compensation benefits for bilateral carpal tunnel syndrome, the opinion states.

The Office of Judges reversed the claims administrator's order and held the claim compensable for bilateral carpal tunnel syndrome. The Board of Review then reversed the Office of Judges' order and held that the preponderance of the evidence established that the claim was not timely filed.

On appeal, Buzzard disagreed and asserted 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, according to the opinion.

The West Virginia Office of Insurance Commissioner maintained that the application was not timely filed, as indicated by an EMG, a nerve conduction study, physician evaluations, a functional capacity evaluation and an application for permanent total disability benefits, which all mentioned carpal tunnel syndrome prior to Sept. 4, 2004.

The Office of Judges held that the preponderance of the evidence established that Buzzard incurred bilateral carpal tunnel syndrome in the course of and resulting from his employment and that his application for Workers' Compensation benefits was timely filed, as Buzzard filed for benefits within three years of being advised of the condition.

The Office of Judges noted that Buzzard was informed of bilateral carpal tunnel syndrome resulting from his job duties in February 2010 and it concluded that the evidence of left carpal tunnel syndrome in 2001 resulting from a previous work-related injury was insufficient to establish that he had constructive knowledge of bilateral carpal tunnel syndrome resulting from the repetitive nature of his job duties.

The state Supreme Court agreed with the reasoning and conclusions of the Office of Judges.

"(W)e 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," the opinion states.

The opinion was concurred in by Justices Margaret L. Workman, Menis E. Ketchum and Allen H. Loughry II. Justices Brent D. Benjamin and Robin J. Davis were of a dissenting opinion.

The decision was the only reversal in the seven Workers' Compensation decisions issued on March 14.