Opinion
Record No. 0484-93-4
September 28, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Margaret DeFilippis; Ashcraft and Gerel, on brief), for appellant.
(M. Bruce Wallinger; Wharton, Aldhizer Weaver, on brief), for appellees.
Present: Judges Benton, Coleman and Willis.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Donna Mae Alger contends that the Workers' Compensation Commission erred in finding that she failed to prove that she suffers from a compensable occupational disease on the basis that the evidence established that her disease is a condition of the neck, back or spinal column excluded from coverage by Code § 65.2-400(B)(4). Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the commission. Rule 5A:27.
The commission also found that an aggravation of Alger's arthritis of the thoracic spine, a degenerative condition noted by Dr. Chak L. Chow, would not be compensable. Alger does not challenge this finding on appeal.
On appellate review, we will construe the evidence in the light most favorable to the party prevailing below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 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). "The Commission's findings of fact are binding on appeal where supported by credible evidence." Board of Supervisors v. Martin, 3 Va. App. 139, 146, 348 S.E.2d 540, 543 (1986). Unless we can say as a matter of law that Alger's evidence was sufficient to sustain her burden of proof, then 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).
Code § 65.2-400(B)(4) specifically provides that a disease shall not be considered to arise out of the employment if "[i]t is . . . any condition of the neck, back or spinal column." If the disease does not arise out of the employment, it is not compensable as an occupational disease.
The medical record is filled with complaints from Alger related to her neck, back and spinal column. On February 4, 1992, Dr. Chak L. Chow noted that Alger was having a problem with her back and that Alger wondered if it was related to her job. Dr. Chow diagnosed a muscle sprain, strain of the back, and arthritis. In February and March 1992, Alger was seen at Page Memorial Hospital Emergency Department with complaints of back pain. She was diagnosed as suffering from acute muscle sprain and strain of the back. X-rays taken at Page Memorial revealed minimal mid-lumbar degenerative changes. In March 1992, Alger was seen at Warren Memorial Hospital complaining of neck and lower back pain. On March 16, 1992, Dr. Chow noted that Alger still had pain in her back.
Alger was treated by Dr. Zack T. Perdue from March 17, 1992, until April 22, 1992. He diagnosed her as suffering from fibromyalgia which had its origin in her neck pain. Dr. Thomas F. Patteson saw Alger from March 25, 1992, until April 7, 1992. He noted that she suffered from neck and back pain. Dr. Anne M. Bacon saw Alger on April 14, 1992, and May 12, 1992, because of back pain.
The commission found that Alger's evidence met the requirements of Code §§ 65.2-400(B)(1) through -400(B)(3), -400(B)(5) and -400(B)(6). The commission also found that the evidence demonstrated that Alger suffered from a condition of the neck, back or spinal column. The commission, specifically referring to her testimony of neck and back pain, noted that Alger complained of upper torso pain radiating into her arms and neck. Thus, the commission denied compensation because conditions of the neck, back or spine are not compensable as an occupational disease pursuant to Code § 65.2-400(B)(4).
The medical evidence clearly reflects that Alger suffers from a condition of the neck, back or spinal column. Accordingly, we cannot say that the commission erred as a matter of law in finding that Alger's symptoms fell squarely within the exclusion contained in Code § 65.2-400(B)(4).
For the reasons stated, the commission's decision is affirmed.
Affirmed.