Opinion
Record No. 1205-93-4
November 30, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(William S. Sands, Jr.; McChesney, Duncan Dale, on brief), for appellants.
(John D. Brosnan, on brief), for appellee.
Present: Judges Benton, Coleman and Willis.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
First American Metro Corporation contends that the Workers' Compensation Commission erred in (1) finding that Karen Ann Dredske proved by clear and convincing evidence that her ordinary disease of life was causally related to her work for First American; (2) finding that Dredske's condition was not a non-compensable aggravation of a pre-existing disease; and (3) construing the evidence concerning Dr. Jeffrey A. Brown. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the commission's decision. See Rule 5A:27.
Dredske began working for First American in August 1990 as a part-time proof operator. She worked a minimum of three to four hours per evening, six evenings per week, processing bank checks and deposits. She handled between 2600 and 3000 documents per hour, which is the equivalent of 14,000 to 18,000 right-hand key strokes per hour. With her left hand, she dropped the documents into a slot where they were encoded.
Prior to and during this same time period, Dredske was also employed full-time as a secretary in the accounting department of the American Postal Workers Union. As a secretary, Dredske spent between twenty and thirty percent of her time performing keyboard work. The remaining portion of her day was spent proofreading, filing, attending the switchboard, and performing accounting functions.
In December 1990, Dredske began to experience numbness and tingling in her hands while performing her job at First American. Her symptoms would subside overnight but recurred when she returned to her job at First American. Prior to December 1990, Dredske had never experienced symptoms of this type nor had she ever had any problems with her hands. She did not experience any hand or wrist symptoms while performing work at her other job. Eventually, Dredske's symptoms worsened, and she sought medical treatment from a chiropractor, Dr. Jeffrey A. Brown. Dr. Brown referred Dredske to an orthopedic surgeon, Dr. Charles Ubelhart, who diagnosed her condition as bilateral carpal tunnel syndrome and recommended surgery.
In an August 13, 1991 report, Dr. Ubelhart noted that he was aware of the duties involved in both of Dredske's jobs and that her symptoms did not begin until she started work with First American. He also stated that she had no previous history of trauma or injury that would explain the condition of her hands. Dr. Ubelhart opined that Dredske's symptoms were due to her repetitive work for First American.
Dredske sought a second opinion from another orthopedic surgeon. In a September 23, 1991 letter to the insurer's representative, Dr. Thomas R. Shepler opined that Dredske's carpal tunnel syndrome was due to an underlying condition which was aggravated by her repetitive employment activities. However, he failed to identify with any specificity the underlying condition or its cause. In a later letter, Dr. Shepler admitted that he was not aware of any factors which may have contributed to claimant's condition other than her two jobs. On this evidence, the commission found that Dredske had proved by clear and convincing evidence that the bilateral carpal tunnel syndrome she experienced was characteristic of the employment and was caused by conditions peculiar to such employment.
Code § 65.2-401 provides that
[a]n 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 § 65.2-400 with respect to occupational diseases and did not result from causes outside of the employment.
The statute does not require complete absence of other possible contributing causes. Rather, the work activity must be determined, by a reasonable degree of medical certainty, to be the "primary source" of the ordinary disease of life. Ross Laboratories v. Barbour, 13 Va. App. 373, 377, 412 S.E.2d 205, 208 (1991).
"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). When there is credible evidence to support it, such a finding is "conclusive and binding" on this Court. Id. Moreover, "[a] question raised by conflicting medical opinion is a question of fact." Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986).
The commission found that Dredske suffered from an ordinary disease of life. This finding is not challenged on appeal. The commission clearly recognized that Dredske was required to meet the "clear and convincing evidence" standard of Code § 65.2-401. Moreover, in finding that Dredske proved the necessary causal connection between her disease and the repetitive work she performed for First American, the commission accepted Dr. Ubelhart's opinion and rejected Dr. Shepler's opinion to the contrary.
"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 Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). In rejecting Dr. Shepler's opinion, the commission correctly pointed out that "[a]n aggravation of a preexisting disease may not be claimed, but it is of no moment that Dredske may have an underlying weakness which predisposes her to the claimed condition. The rule is well established that the employer takes the employee as he finds her with all of her predisposing weaknesses. . . ."
Dr. Ubelhart's opinion constitutes credible evidence to support the commission's finding that Dredske proved by clear and convincing evidence that her bilateral carpal tunnel syndrome was caused by her employment at First American and that she was not suffering from a non-compensable aggravation of a pre-existing disease. Dr. Ubelhart was aware of the duties involved in both of Dredske's jobs and opined that her condition was caused by the repetitive activities she performed for First American.
The commission's opinion does not reflect that the commission misconstrued Dr. Brown's opinion. In fact, it is apparent from the opinion that the commission did not rely on Dr. Brown's opinion in rendering its decision regarding causation.
For the reasons stated, we affirm the commission's decision.
Affirmed.