Opinion
Record No. 1687-93-3
Decided: July 26, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
Martha White Medley (James A. L. Daniel; Daniel, Vaughan, Medley Smitherman, P.C., on brief), for appellant.
Lawrence L. Moise III (Vinyard Moise, on brief), for appellee.
Present: Judges Barrow, Coleman and Koontz
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
In this appeal, we hold that the Workers' Compensation Commission did not err in finding that Dorothy Thomas's bilateral carpal tunnel syndrome is a compensable ordinary disease of life arising from her employment under Code Sec. 65.2-401. The medical evidence, when considered in the light most favorable to the prevailing party, supports to a reasonable certainty the commission's finding that Thomas's carpal tunnel syndrome was caused by her employment and not merely aggravated by it. Accordingly, we affirm the commission's award.
Dorothy Thomas worked for Tultex Corporation sewing and setting pockets on jackets for one and one-half years. Thomas first noticed symptoms in her hands and wrists while she worked the job setting pockets. She experienced a tingling and numbness in her left hand. After Thomas began working on collars, both of her hands became numb. After two years of working, Thomas sought medical attention for her condition from Tultex's physician, Dr. Steven C. Brandon. Dr. Brandon placed a splint on Thomas's left arm, sent her home for a week, and gave her a half splint for her right arm.
After a week, Thomas returned to light duty work, consisting of monitoring various work stations. She returned to full duty work after a month to work on collar setting. The day she returned to collar setting, both hands again became numb. Thomas saw Dr. Brandon the same day. He excused her from work and referred her to Dr. Larry G. Lipscomb. Dr. Lipscomb diagnosed bilateral carpal tunnel syndrome, and he concluded that Thomas's right hand needed surgery. After Dr. Lipscomb performed a right endoscopic carpal tunnel release, Thomas had complications, which resulted in Dr. Lipscomb's referral of her to Dr. Brian A. Torre. Every doctor who examined Thomas, with the exception of Dr. Torre, who gave no opinion, related her carpal tunnel syndrome to her production sewing work at Tultex.
Dr. Brandon, the employer's physician, stated that, in his opinion, Thomas's left carpal tunnel problems were caused by her employment, even though, in his opinion, her right hand problems are not work related. Dr. Lipscomb testified by deposition that, in his opinion, Thomas's condition was caused by her work, even though carpal tunnel syndrome is not characteristic of the type of employment at Tultex and is an ordinary disease of life. Dr. Brandon also stated in a letter that he did not consider carpal tunnel syndrome to be "characteristic of the employment" at Tultex.
Before working for Tultex, Thomas worked for three months as a cake decorator. While working at Tultex, she occasionally decorated cakes for family and friends. Thomas never experienced any problems with her hands or wrists until after she worked at Tultex. Appellee's counsel conceded that because Thomas engaged in activities outside her employment which might also contribute to cause carpal tunnel syndrome, her disease is considered an "ordinary disease of life," and in order to prevail, she must prove her claim under Code Sec. 65.2-401. See Knott v. Blue Bell, Inc., 7 Va. App. 335, 337, 373 S.E.2d 481, 482-83 (1988). After a hearing, the commission found that Thomas had satisfied her burden of proof and awarded benefits to Thomas.
Because Thomas was exposed to causative factors outside of her employment, her carpal tunnel syndrome is a condition to which the general public is exposed outside of employment. Therefore, Thomas suffers from an "ordinary disease of life," and her claim must be reviewed under the more stringent causation requirements of Code Sec. 65.2-401. See generally Marcus v. Arlington County Bd. of Supervisors, 15 Va. App. 544, 549, 425 S.E.2d 525, 529 (1993). Code Sec. 65.2-401 reads:
" Ordinary disease of life" coverage. —An ordinary disease of life to which the general public is exposed outside of the employment may be treated as an occupational disease for purposes of this title if it is established by clear and convincing evidence, to a reasonable medical certainty, that it arose out of and in the course of employment as provided in Sec. 65.2-400 with respect to occupational diseases and did not result from causes outside of the employment, and that: . . . [i]t follows as an incident of occupational disease as defined in this title; or . . . [i]t is characteristic of the employment and was caused by conditions peculiar to such employment.
Id. (emphasis added).
Thomas proved to "a reasonable medical certainty" that her carpal tunnel syndrome was caused by her employment at Tultex. The opinions of Drs. Brandon and Lipscomb that her job requirements at Tultex caused her bilateral carpal tunnel syndrome satisfied the burden that she prove "to a reasonable certainty . . . [that] it is at least more probable than not that the disease arose out of and in the course of employment." Westmoreland Coal Co. v. Campbell, 7 Va. App. 217, 233-24, 372 S.E.2d 411, 416 (1988). See Wood v. Allison Apparel Marketing, 11 Va. App. 352, 398 S.E.2d 110 (1990); and Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572 (1986). The commission was entitled to give little or no weight to the non-examining physicians who testified. Id. "The fact that there is contrary evidence in the record is of no consequence if there is credible evidence to support the commission's finding." Wagner Enterprises Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
The employer conceded at the hearing that Thomas's production sewing job at Tultex required repetitive use of her hands, wrists, and arms. On the collar job, Thomas was completing five to six dozen collars per hour for nine hours a day. The commission ruled that the evidence was sufficient to prove that Thomas's carpal tunnel syndrome "is characteristic of the employment and was caused by conditions peculiar to such employment," as required by Code Sec. 65.2-401(3) if the evidence proved that Thomas's "carpal tunnel syndrome results from repetitive trauma which is a distinctive feature of her work as a seamstress." Therefore, even though Drs. Brandon and Lipscomb testified that they would not consider carpal tunnel syndrome a peculiar or specific risk of working as a seamstress at Tultex, the evidence was sufficient to support the commission's finding that Thomas's carpal tunnel syndrome was caused by conditions that were characteristic of and peculiar to her employment with Tultex and not from causes outside her employment. Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 686, 376 S.E.2d 814, 816 (1989); Code Sec. 65.2-401(3).
While an ordinary disease of life that is merely aggravated by a claimant's employment is not compensable, Teasley v. Montgomery Ward Co., 14 Va. App. 45, 50, 415 S.E.2d 596, 598 (1992) (citing Ashland Oil Co. v. Bean, 225 Va. 1, 3-4, 300 S.E.2d 739, 740 (1983)), Tultex's attempt to characterize Thomas's problems as a mere aggravation of an ordinary disease of life is not supported by the evidence. Thomas did not experience any problems with her wrists and hands until after working for a year with Tultex performing repetitive motions with her hands. Before working for Tultex, Thomas worked as a cake decorator for three months and occasionally decorated cakes for family and friends while working at Tultex. The commission did not err by considering the volume and duration of the production line sewing work that Thomas performed at Tultex in comparison to her brief employment as a cake decorator or by accepting the medical evidence that Thomas's condition was caused by her employment rather than factors outside her employment. The mere possibility that the claimant's carpal tunnel syndrome may negligibly have been affected by non-work related activities does not, as a matter of law, render the evidence insufficient to support the commission's finding that the claimant's disease arose from her employment. Ross Laboratories v. Barbour, 13 Va. App. 373, 377, 412 S.E.2d 205, 208 (1991). The commission's finding that Thomas's work at Tultex is the primary source of her bilateral carpal tunnel syndrome is supported by credible evidence and, therefore, binding on appeal. See Id. at 378, 412 S.E.2d at 208. Accordingly, Thomas satisfied the requirements of Code Sec. 65.2-401 by clear and convincing evidence. Accordingly, we affirm the commission's award of benefits.
Affirmed.