Opinion
Record No. 0968-93-4
September 24, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(T. Farrell Egge, on briefs), for appellant. Appellant submitting on briefs.
(Valerie A. Fant; McGuire, Woods, Battle Boothe, on brief), for appellees. Appellees submitting on brief.
Present: Judges Benton, Coleman and Willis.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Nancy Gaither Boland appeals from the decision of the Workers' Compensation Commission that her left shoulder condition was not compensable as an occupational disease. She contends that the commission erred in finding that her shoulder condition did not result from an injury that occurred after her reassignment in 1989. We affirm the commission's decision.
The evidence proved that Boland was employed as a passenger service agent for Pan American World Airways, Inc., from 1980 through April 1990. Her duties required her to assist passengers, handle luggage, perform clerical duties, and supervise other agents. In 1987, Boland had surgery for left carpal tunnel syndrome; however, she did not contend that carpel tunnel was caused by her employment. Boland also testified that she fell in August 1988 while working in the north terminal of National Airport and sustained a fracture to her left elbow.
In the Fall of 1989, Boland was reassigned to the main terminal of National Airport. Although she performed similar work duties after the reassignment, she testified that the configuration of the baggage chute in the main terminal was awkward and caused her and others difficulty in handling baggage. Boland testified that, after her reassignment to the main terminal, she began to suffer neck, back, and bilateral shoulder pain. Boland last worked on April 19, 1990, and was later diagnosed as suffering from a left shoulder impingement syndrome and a rotator cuff tear. Boland contends that her shoulder problems did not exist prior to her reassignment, and she associated the onset of the pain with the lifting required by the configuration of the baggage chute.
The deputy commissioner found that Boland failed to establish the necessary causal connection element of her claim for an occupational disease. In upholding the deputy commissioner's decision, the commission found as follows:
[T]he record, taken as a whole, does not establish that the claimant's left shoulder condition is an occupational disease. The record does not sufficiently establish that her duties as a passenger service agent brought on this condition or that it was a risk of her employment. While this work may have aggravated a preexisting condition, . . . we find upon Review that it is not compensable as an occupational disease.
A claimant must prove the existence of an occupational disease by a preponderance of the evidence. Virginia Dep't of State Police v. Talbert, 1 Va. App. 250, 253, 337 S.E.2d 307, 308 (1985). "Whether a disease is causally related to the employment and not causally related to other factors is . . . a finding of fact." Island Creek Coal Co. v. Breeding, 6 Va. App. 1, 12, 365 S.E.2d 782, 788 (1988) (citation omitted). "A question raised by conflicting medical evidence is a question of fact." Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986). Unless we can say as a matter of law that Boland's evidence was sufficient to sustain her burden of proof, the commission's findings are binding and conclusive upon us.Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Boland contends that she first sought treatment for her shoulder from Dr. Robert J. Hornsby on April 20, 1990. Boland relied upon reports of Dr. Charles Ubelhart and Dr. Wayne Lindseys to establish that her shoulder injury did not occur until after she was assigned to the main terminal in 1989. In addition, she contends that Dr. Terrence J. Stobbe, an expert in the area of occupational health and safety engineering, provided credible testimony that the work conditions she encountered in the main terminal caused Boland's injury.
We conclude that the commission's findings are supported by credible evidence. Boland's own testimony established that her shoulder problems began as early as 1988, before she began working at the main terminal. Boland argues that the aches and pains that she experienced prior to her reassignment in 1989 were unrelated to her shoulder injury and were inherent in any job that required physical exertion. The commission found, however, that her testimony proved that the onset of her shoulder injury began prior to her transfer in 1989. Boland's assertion that the pain she suffered "became different and grew stronger and more debilitating" after 1989 is not necessarily inconsistent with the commission's findings. Whether Boland suffered minor aches and pains or whether those aches and pains were symptomatic of the onset of the shoulder injury was a factual determination that the commission had to make. "If there is evidence or reasonable inference that can be drawn from the evidence to support the Commission's findings, they will not be disturbed by this Court on appeal, even though there is evidence in the record to support contrary findings of fact." Caskey v. Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d 507, 510-11 (1983). Based on Boland's testimony, the commission had credible evidence upon which it could find as a fact that Boland's shoulder complaints began after her fall in 1988.
The record also contained medical testimony that was consistent with that finding. Dr. Young Y. You, the treating orthopedic surgeon, wrote in his September 7, 1990, notes that Boland had suffered from chronic left shoulder pain for several years. Dr. You also completed a disability form a month later and concluded that Boland's left shoulder condition was not related to her employment and had existed since 1987. Moreover, on July 17, 1991, Dr. Lukowsky reported that Boland's left shoulder "symptoms were triggered by a fall [in 1988] and injury to her left wrist and shoulder previously." The commission reasonably concluded that these medical findings are "material in light of [Boland's contention] that her left shoulder complaints did not commence until after her move to the main terminal and were attributable to the heavy work at times in an awkward position at that location."
The commission discounted the opinions of Boland's expert witnesses, Dr. Ubelhart, an orthopedic surgeon, and Terrence J. Stobbe, Ph.D. Dr. Ubelhart first reported that Boland's shoulder injury occurred in 1988 when she fell. However, in a later report, he reviewed his notes and other reports and concluded that Boland's shoulder injury evolved over the last six months of her active employment. The commission gave less weight to Dr. Ubelhart's report and Dr. Stobbe's testimony because both inaccurately believed that Boland's shoulder complaints had not begun until after she started working at the main terminal. As the commission stated, at best Boland proved that the "conditions at the main terminal [may have] aggravated a preexisting condition." The evidence did not prove, however, that the injury was compensable as an occupational disease.
Upon this record, we cannot say as a matter of law that Boland met her burden of proving the requisite causal connection between the conditions at the main terminal and her left shoulder problems. Accordingly, we affirm the commission's decision.
Affirmed.