Opinion
Record No. 0876-94-3
Decided: January 31, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Jim H. Guynn, Jr.; Myles T. Hylton; Parvin, Wilson, Barnett Guynn, on briefs), for appellant.
(James A. L. Daniel; Martha White Medley; Daniel, Vaughan, Medley Smitherman, on brief), for appellees.
Present: Judges Benton, Coleman and Willis
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Billy Wayne Beverly contends that the Workers' Compensation Commission erred in finding that he failed to prove that his bilateral carpal tunnel syndrome, an ordinary disease of life, is compensable as an occupational disease. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the commission's decision. Rule 5A:27.
For an ordinary disease of life to be treated as a compensable occupational disease, the claimant is required to prove, by clear and convincing evidence, to a reasonable degree of medical certainty, that the disease arose out of and in the course of the employment; did not result from causes outside of the employment; is characteristic of the employment; and was caused by conditions peculiar to the employment. Code Sec. 65.2-401. Beverly does not contest that he bore the burden of proving those elements.
"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). Unless we can say as a matter of law that Beverly's evidence sustained his 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).
In denying compensation to Beverly on the basis that he failed to prove that his disease was characteristic of his employment or that it was caused by conditions peculiar to his employment, the commission found as follows:
We . . . find that the record establishes the claimant's exposure to the causative hazards of this disease both at his employment [as a delivery truck driver for United Parcel Service of America ("UPS")] and away from his employment. In this regard, we rely primarily upon Dr. [Tullio L.] Coccia's medical reports and his deposition of April 6, 1993. The claimant's symptoms are worse in his dominant right hand. This hand is used while fishing, playing softball, working on small electrical appliances, and driving his private vehicle. Dr. Coccia testified that these non-work related activities could aggravate the claimant's underlying condition. He also testified that the work activities could aggravate the underlying condition. Dr. Coccia's testimony as to causation was, to some extent, conflicting, as noted by the Deputy Commissioner. However, the burden of proof was upon the claimant, and he based his case as to causation primarily on Dr. Coccia's reports and testimony.
The record, in summary, establishes only that the claimant's work activities, as well as his non-work activities, aggravated an underlying condition which apparently had been asymptomatic for some years.
Dr. Coccia's reports and deposition testimony support the commission's decision. In his deposition, Dr. Coccia testified that Beverly suffered from an underlying condition, namely chronic synovitis or tendinitis of the extremities, which was aggravated by several non-work related activities, including softball, driving his private vehicle, fishing, electronic repair, and his twelve-year course of prednisone therapy. Dr. Coccia also testified that Beverly's underlying condition could have been aggravated by his work-related activities of lifting, twisting, using his arms to carry packages, and driving the UPS truck.
Dr. Coccia found it difficult to attribute all of Beverly's complaints to his work activities. Dr. Coccia opined that if Beverly's job was a contributing factor to his symptoms, Beverly would have developed these symptoms much earlier in his employment. Beverly began employment as a UPS driver in the late 1970's, but did not complain of wrist or arm pain until 1992. Thus, Dr. Coccia opined that because Beverly's symptoms surfaced so many years after he began his employment, the employment probably exacerbated a pre-existing underlying condition. Where the origin of an ordinary disease of life cannot be traced to the employment as its proximate cause, aggravation of the disease is not compensable as an occupational disease. See Ashland oil co. v. Bean, 225 Va. 1, 3-4, 300 S.E.2d 739, 740 (1983).
Beverly's assertion that Ross Laboratories v. Barbour, 13 Va. App. 373, 412 S.E.2d 205 (1991), and Piedmont Mfg. Co. v. East, ___ Va. App. ___, 438 S.E.2d 769 (1993), control our decision is unpersuasive. In Barbour, unlike this case, the claimant's physician identified her employment activities as the major cause of her disease. Barbour, 13 Va. App. at 378, 412 S.E.2d at 208. In Piedmont, unlike this case, the claimant's treating physician unequivocally opined, within a reasonable degree of medical probability, that claimant's condition originated with her twenty-four year employment as a machinist. Piedmont, ___ Va. App. at ___, 438 S.E.2d at 773-74.
For these reasons, we hold that the commission did not err in finding that Beverly did not establish by clear and convincing evidence that his condition was characteristic of his employment and caused by conditions peculiar to such employment. Accordingly, we affirm the commission's decision.
Affirmed.